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

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

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

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

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: [2022] QIRC 352
Decision Date: 12 September 2022

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;

(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

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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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