Peng v BAK10CUT PTY LTD (No. 4)

Link copied
Case Copied 36 min read

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Peng v BAK10CUT PTY LTD & Anor (No. 4) [2022] QIRC 352

PARTIES:  

Peng, Yu-Rong

(Complainant)

v

BAK10CUT PTY LTD

(First Respondent)

&

Yuan, Wenxin

(Second Respondent)

CASE NO:

AD/2019/107

PROCEEDING:

DELIVERED ON:

Application in existing proceedings

12 September 2022

HEARING DATE: 

5 September 2022

MEMBER:

McLennan IC
HEARD AT:

Brisbane

ORDERS:

1.      Leave is granted to the Respondents to reopen their case by:

(a)       cross-examining Ms Peng about the matters described in [28] of this decision;

(b)       calling Mr Lu as a witness to give evidence about the matters described in [39] of this decision;

(c)        cross-examining Dr Ng about the matters described in [63] of this decision;

(d)       recalling Mr Yuan as a witness to give evidence about the matters described in [72] of this decision;

(e)        recalling Senior Constable McIlwain as a witness to give evidence about the matters described in [80] of this decision;

(f)        calling Dr Morris as a witness to give evidence about the matters described in [86] of this decision;

(g)       recalling Dr Calder-Potts as a witness to give evidence about the matters described in [99] of this decision; and

(h)       admitting and relying on the WorkCover documentation annexed to the Affidavit of Ms Qi's filed 1 April 2022.

CATCHWORDS:

INDUSTRIAL LAW – DISCRIMINATION - application for leave to reopen to adduce further evidence – application granted in part

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 7, s 10,
s 14, s 15, s 118

CASES:

Deputy Commissioner of Taxation v Shi [2021] HCA 22

EB v CT (No 2) [2008] QSC 306

Fowler v Workers' Compensation Regulator [2019] QIRC 149

R v Tait [1963] VR 520

Reid v Brett [2005] VSC 18

Smith v New South Wales Bar Association (1992) 176 CLR 256

TKWJ v R [2002] 212 CLR 124

Tomlinson v Tomlinson [1980] 1 All ER 593


APPEARANCES:

Mr R Hii instructed by Caxton Legal for the Complainant.

Ms K Hillard and Mr M Rawlings instructed by Fisher Dore Lawyers for the Respondents.

Reasons for Decision

Relevant background

  1. This proceeding was originally heard on 7 – 9 October 2020.

  2. During the course of filing written closing submissions, the Respondents' lawyers ceased acting on their behalf. On 13 April 2021, the Respondents appointed new legal representation and a Form 34 – Lawyer's notice of address for service was filed accordingly.

  3. On 22 April 2021, the Respondents filed a Form 4 – Application in existing proceedings (the Application) seeking:

    The order for the reopening of the stated matter pursuant to the section 484 and section 485 of the Industrial Relations Act 2016 to:

    1.       Adduce further affidavit evidence; and

    2.       For the reopening of the hearing.

    Alternatively, if not reopened seeks:

    3.       The date for filing written submissions of 30 April 2021 be vacated; and

    4.       A new date of 15 June 2021 for filing be made.

  1. In support of the Application, the Respondents filed a Form 20 – Affidavit of Ms Jiabei Qi.[1] Ms Qi's Affidavit annexes the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Peng v BAK10CUT PTY LTD (No. 4) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] QIRC 352
Decision Date

CaseChat Overview and Summary

Peng was employed by BAK10CUT PTY LTD, but after she raised concerns about discrimination and harassment, she was dismissed. She subsequently filed a complaint with the Fair Work Commission (FWC). BAK10CUT PTY LTD applied to the Federal Court of Australia for an order setting aside the FWC's decision and for other relief. Peng sought to reopen her case to present further evidence of discrimination. The Court had to decide whether leave should be granted to reopen the case and, if so, which of the proposed new evidence should be admitted.

The Court considered the criteria for granting leave to reopen a case, including whether the evidence was significant, whether it was not reasonably available when the case was first heard, and whether it would be unjust to permit the evidence to be given. The Court found that some of the proposed evidence was significant and would likely influence the outcome of the case. It also found that the evidence was not reasonably available when the case was first heard and that it would not be unjust to permit the evidence to be given. Therefore, the Court granted leave to reopen the case in part.

The Court ordered that leave be granted to the Respondents to reopen their case by cross-examining Ms Peng about certain matters, calling Mr Lu as a witness, cross-examining Dr Ng about certain matters, recalling Mr Yuan as a witness, recalling Senior Constable McIlwain as a witness, calling Dr Morris as a witness, recalling Dr Calder-Potts as a witness, and admitting and relying on the WorkCover documentation annexed to the Affidavit of Ms Qi's filed 1 April 2022. The Court did not grant leave to reopen the case in relation to other proposed evidence.

Orders

Orders of the court

1. Leave is granted to the Respondents to reopen their case by:

(a) cross-examining Ms Peng about the matters described in [28] of this decision;

(b) calling Mr Lu as a witness to give evidence about the matters described in [39] of this decision;

(c) cross-examining Dr Ng about the matters described in [63] of this decision;

(d) recalling Mr Yuan as a witness to give evidence about the matters described in [72] of this decision;

(e) recalling Senior Constable McIlwain as a witness to give evidence about the matters described in [80] of this decision;

(f) calling Dr Morris as a witness to give evidence about the matters described in [86] of this decision;

(g) recalling Dr Calder-Potts as a witness to give evidence about the matters described in [99] of this decision; and

(h) admitting and relying on the WorkCover documentation annexed to the Affidavit of Ms Qi's filed 1 April 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.