Paul Milo v State of Queensland
[2018] QCAT 340
•2 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Paul Milo v State of Queensland [2018] QCAT 340
PARTIES:
PAUL MILO
(applicant)v STATE OF QUEENSLAND
(respondent)
APPLICATION NO/S:
ADL063-17; ADL011-18
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
2 October 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS:
1. The parties must file and serve written outlines of submissions in each matter, of no longer than three pages in length for each matter, by no later than 7 clear days before the Hearing.
2. The application for miscellaneous matters filed by the applicant on 3 August 2018 is otherwise dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – application for miscellaneous matters
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 97
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 79APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This decision relates to an application for miscellaneous matters filed by the applicant on 3 August 2018 in respect of matters ADL063-17[1] (first matter) and ADL011-18[2] (second matter).
[1]Referred to the Tribunal on 5 July 2017.
[2]Referred to the Tribunal on 12 February 2018
The first matter concerns a complaint of unlawful discrimination made by Mr Milo in connection with accommodation provided to him by the Department of Housing and Public Works and in their administration of State laws and programs. The second matter relates to the first in that it concerns allegations by Mr Milo of victimisation arising from that complaint of unlawful discrimination.
On 9 August 2018 the Tribunal ordered that, unless otherwise ordered, ADL063-17 and ADL011-18 were to remain separate proceedings but were to be heard and determined together.
I now turn to consider the application. Essentially, Mr Milo seeks a number of directions relating to the conduct of both proceedings. I have categorised them as follows.
Non-compliance by the respondents with previous directions
Mr Milo submits that the respondent has not complied with directions in respect of both matters which required it to provide statements of evidence.
In the first matter, the State of Queensland was directed to provide any statements of evidence in response to Mr Milo’s statement of evidence.[3] Mr Milo argues that the respondents have not complied, in effect because it has not “provided one or more synoptic, global statements of evidence that explain and/or summarise the primary legal arguments on which the respondent intends to present its case at QCAT”.
[3]Directions of 26 October 2017, direction 2(a).
The State of Queensland filed a statement of Alan Broad of the Fortitude Valley Housing Service Centre on 25 July 2018 together with attachments. I am satisfied that this statement, although late, otherwise complies with the direction.
In the second matter, the State of Queensland and Michael Linnan were both directed to file statements of evidence and any witnesses to give evidence for the State of Queensland and Michael Linnan were also directed to file statements.[4]
[4]Directions of 21 March 2018, direction 5(i) and (ii).
Mr Milo makes the same submission in respect of the statements filed by the respondents in compliance with the relevant directions.
The respondents filed a statement of Michael Linnan on 26 July 2018 and the following further witness statements on 27 July 2018:
(a)Elizabeth Carroll;
(b)Dimity Pennisi;
(c)Kate Stapleton; and
(d)Rebecca Wilson.
I am satisfied that these statements also, although late, otherwise comply with the direction.
It appears from the application that the statements are not in a form that Mr Milo expected. Mr Milo takes issue, in effect, with the fact the statements do not outline relevant arguments or identify legal issues which would assist him in preparing his case.
However, the evidence in a case is different from submissions regarding the application of the law to the evidence in a case. The evidence will assist a party to establish his or her version of events, in a factual sense. Evidence can of course be given orally at the hearing. In the Tribunal parties are often directed to provide written statements in advance of the hearing so that the parties may properly prepare beforehand and so the evidence in the statement can be read at the trial and a witness then only cross-examined, if need be, on anything the other party disagrees with wants clarified.
Written evidence can be given by way of a statement of evidence or an affidavit. If a person who has made a statement or affidavit fails to attend the Tribunal for cross-examination, his or her evidence will be approached on the understanding it has not been tested which may affect its weight.
Affidavit of Elizabeth Carroll
Mr Milo submits that the affidavit of Elizabeth Carroll should be rejected by the Tribunal on the basis it was late.
The relevant affidavit was required to be filed by 4:00pm on 25 July 2018. The respondents emailed the Tribunal and Mr Milo on 25 July 2018 to advise that the affidavit was forthcoming and would be filed in due course. The affidavit was filed on 27 July 2018 and served on Mr Milo on 28 July.
Although the affidavit was two days late, in non-compliance with the Tribunal’s directions of 24 July 2018 there was no prejudice suffered by Mr Milo in circumstances where he has until 19 November 2018 to file an affidavit in response to the respondents’ material. Further, the hearing date has not yet been fixed.
While it is important that parties comply with time limits set by directions it is disruptive and time wasting for parties to agitate the point where there has been no disadvantage caused by the delay. The Tribunal has limited resources and applications of this nature detract it from dealing with the substantive issues raised by the relevant proceedings.
This part of the application is therefore dismissed.
Strike out of material referring to Mr Milo’s previous tenancy
Mr Milo submits that all references by the respondents to his previous tenancy in Manly should be struck out.
There are references to Mr Milo’s previous tenancy in Alan Broad’s affidavit filed on 25 July 2018 and in an exhibit to Elizabeth Carroll’s affidavit filed on 27 July 2018. The respondent submits that the reference was made by way of background and context and is not relied upon as a substantive issue in defence of the complaints of discrimination or victimisation made by Mr Milo.
I am not persuaded that the conduct of Mr Milo in relation to a previous tenancy is necessarily irrelevant and for that reason, I am not prepared to find at this stage that the references are frivolous, lacking in substance or otherwise an abuse of process. Mr Milo is entitled to make submissions concerning the relevance of the affidavit material at the hearing.
This part of the application is therefore dismissed.
Witness protection orders
Mr Milo has applied for the Tribunal to make “witness protection orders” for Ray Jansen and Elizabeth Wilton, who are also tenants at the Highgate Hill public housing complex. Mr Milo claims Ms Wilton and her partner, Mr Jensen were contacted by telephone by representatives of the Department’s Fortitude Valley Housing Service Centre and threatened with eviction if they attended hearings for either of Mr Milo’s matters.
Mr Milo has not provided any evidence of what are very serious allegations. Putting that aside, the Tribunal does not have jurisdiction to issue any such orders.
This part of the application is therefore dismissed.
Notices to produce
Mr Milo has sought, in effect, orders for disclosure of certain documents in the possession of the respondents.
Mr Milo has not satisfied me of the documents’ relevance to either his complaint of discrimination or victimisation.
This part of his application is therefore dismissed.
Other matters: subpoena and joinder
Mr Milo seeks orders that Ms Wilton and Mr Jansen be subpoenaed to appear at the hearing.
Mr Milo has not made an application under r 79 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) for such attendance. Under s 97(1) of the QCAT Act no such order can be made until an application has been made and a proper ground identified for making the order.
If and when such an application is made the Tribunal will consider it.
Mr Milo also seeks to join Ms Wilton and Mr Jansen as applicants to both matters.
The proper party to make such application are Ms Wilton and Mr Jansen, not Mr Milo. As neither person has made such an application as required by s 42(2) of the QCAT Act, the application to join them is dismissed.
Submissions
The respondents in the matter are legally represented. Mr Milo, at this stage, is not. I have some sympathy for Mr Milo’s wish, in the circumstances, to be appraised of the respondents’ arguments against him in good time before the hearing. Accordingly, I direct that the parties file and serve written outlines in each matter, of no longer than three pages in length for each matter, by no later than seven clear days before the hearing.
Conclusion
The parties must file and serve written outlines in each matter, of no longer than three pages in length for each matter, by no later than seven clear days before the hearing.
The application filed 3 August 2018 is otherwise dismissed.
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