Peng v Bak10Cut Pty Ltd - [2020] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Peng v Bak10Cut Pty Ltd AND Anor [2020] QIRC 115
PARTIES:	Peng, Yu-Rong (Complainant) v BAK10CUT Pty Ltd (First Respondent) AND Yuan, Wenxin (Second Respondent)
CASE NO:	AD/2019/107
PROCEEDING:	Application in existing proceedings for disclosure and attendance upon a medical expert.
DELIVERED ON:	7 August 2020
HEARING DATES:	7 August 2020
MEMBER:	McLennan IC
HEARD AT:	Brisbane
ORDERS:	1. The Respondents’ Application in existing proceedings commenced orally at the mention of this matter on 24 July 2020 is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – ANTI-DISCRIMINATION – Application in existing proceedings – whether a Complainant can be compelled to attend upon a medical examination – whether documents are directly relevant to credit – whether documents only related to credibility must be disclosed - objections to produce documents
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld) s 209 Evidence Act 2007 (Qld) s 20 Industrial Relations (Tribunals) Rules 2011 (Qld) r 46 Industrial Relations Act 2016 (Qld) s 451, 541, 447 Personal Injuries Proceedings Act 2002 (Qld) s 25, s 6 Public Service Act 2008 (Qld) ch 5 pt 7 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556 Coco v The Queen (1994) 179 CLR 427 Cuttiford v Queensland Police Service [2011] QIRC 6 George Ballantine & Son Ltd and others v F E R Dixon & Son Ltd and others [1974] 2 All ER 503 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Kelsey v Logan City Council & Ors (No 6) [2018] QIRC 115 Starr v National Coal Board (1977) 1 All ER 243 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75 White v Ducks in a Row Pty Ltd [2016] QDC 212
APPEARANCES:	Mr H. Jordaan of GTC Lawyers for the Respondents. Mr R Hii of Counsel, instructed by Mr T Murray of Caxton Legal Centre Inc., for the Complainant.

Reasons for Decision

The substantive proceeding is a complaint of discrimination brought by Ms Yu-Rong Peng (‘the Complainant’) against BAK10CUT Pty Ltd and Mr Wenxin Yuan (‘the Respondents’). This matter was mentioned before me on 24 July 2020. During that mention, the Respondents orally applied for two procedural outcomes.[1] It is that Application in existing proceedings which this decision addresses. Directions were issued for the parties to file and exchange written submissions as to:
1. Whether the Complainant can, and should, be compelled to attend upon an appointment with a Doctor nominated by the Respondents for the purposes of allowing that Doctor to develop a report to be used as evidence in these proceedings.
2. A list of documents (or categories of documents) sought to be disclosed from the Complainant regarding her visa, and whether the Complainant should then be required to disclose those documents.
[1] Though for simplicity I have continued to refer to the parties in their roles in the substantive proceedings, namely Complainant and Respondent.
Those issues are the subject of this decision. For the reasons that follow, my findings are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QIRC 115
Decision Date: 7 August 2020

CaseChat Overview and Summary

The case of Peng v Bak10Cut Pty Ltd involved a dispute in the Fair Work Commission concerning allegations of discrimination and anti-discrimination. The Applicant, Peng, alleged that the Respondent, Bak10Cut Pty Ltd, had discriminated against her on the basis of her race, colour, or ethnicity. The matter was heard in the Fair Work Commission, which has jurisdiction to hear such disputes under Australian industrial law.

The key legal issues that the Commission was required to decide included whether the Applicant could be compelled to attend a medical examination, whether certain documents were directly relevant to the Applicant's credit, and whether documents that only related to her credibility must be disclosed. The Respondent had objected to producing certain documents on the basis that they were irrelevant or privileged.

The Commission dismissed the Respondent's application for the production of documents and attendance at a medical examination, finding that the documents were not directly relevant to the Applicant's credit and that the medical examination was not necessary to the resolution of the dispute. The Commission held that the documents in question only related to the Applicant's credibility and were not necessary for the resolution of the dispute. The Commission further found that the Respondent's objections to the production of certain documents were not well-founded.

In conclusion, the Commission dismissed the Respondent's application and made no orders for the production of documents or attendance at a medical examination. The dispute between the parties remains unresolved, and further proceedings may be necessary to determine the merits of the Applicant's claims.

Orders

Orders of the court

1. The Respondents’ Application in existing proceedings commenced orally at the mention of this matter on 24 July 2020 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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