Peng v Bak10cut Pty Ltd & Yuan

[2021] QIRC 175

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Peng v BAK10CUT Pty Ltd & Yuan [2021] QIRC 175

PARTIES:

Peng, Yu-Rong
Complainant

v

BAK10CUT Pty Ltd
First Respondent

&

Yuan, Wenxin
Second Respondent

CASE NO:

AD/2019/107

PROCEEDING:

Anti-Discrimination - Application in existing proceeding

DELIVERED ON:

7 May 2021

HEARING DATE: 

7 May 2021

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDER:

1.     That this proceeding is reopened for hearing.

CATCHWORDS:

ANTI-DISCRIMINATION – Application in existing proceeding - consideration of discretionary power under s 484 of the Industrial Relations Act 2016 (Qld) – whether proceeding should be reopened for hearing

LEGISLATION:

APPEARANCES:

Industrial Relations Act 2016 (Qld) s 484

Mr R Hii of counsel, instructed by Caxton Legal Centre for the Complainant.

Ms K Hillard of counsel, instructed by Russo Lawyers for the Respondents.

Reasons for Decision

Delivered ex tempore on 7 May 2021

1. The Commission’s power to reopen a proceeding is discretionary and is not subject to any statutory conditions. The power is to be exercised to serve the interests of justice and should not be construed narrowly. The guiding principle in deciding whether to exercise the discretion to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application.

2. So having heard you both, this is what I think about it. Mr Hii has said, and I agree, that the draft directions suggested by Ms Hillard contain timeframes that are simply too long. The hearing of this matter was in October 2020. Those draft directions envisage an oral hearing as late as, potentially, October this year. Subsequently, there would also be required further time to decide it and, potentially, the reopening of the hearing and deciding the substantive matter after that.

3. Mr Hii has also stated - and I agree - that an oral hearing is not necessary to resolve the matter of this application. Now, I’m so persuaded by the arguments before me that I’ve decided to reopen the matter. This will be the most efficient way to progress this matter and most properly and fairly reach a decision on the substantive matter.

4. I appreciate that reopening a hearing is possible but unusual. I understand post-hearing regrets. But reopening a hearing cannot be about that; it must be that something critical has been overlooked. And if that does not transpire to be the case, there is the possibility of an argument from the Complainant about a costs order for the additional expenses they incur.

5. With that caution, however, the point has been made and not lost on me, that not to reopen a hearing to allow critical evidence that may materially affect the outcome presents a real risk of an appealable error in this case. Ms Hillard has noted that these are very serious allegations. The remedy sought is significant, should the Complainant be successful. I appreciate the parties are both from non-English speaking backgrounds and interpreters are required, and that was relevant to Mr Yuan’s ability to present his case.

6. And so, out of an abundance of fairness and caution, so that there is opportunity to put all the evidence before me, I will reopen the hearing. I would ask the representatives to provide their availabilities for scheduling of the reopened hearing, and then I will set down a mention to talk about that.

Order

1.       That this proceeding is reopened for hearing.