Rintoul v State of Queensland
[2014] QCAT 102
| CITATION: | Rintoul v State of Queensland & ors [2014] QCAT 102 |
| PARTIES: | Ms Jennette Rintoul (Applicant) |
| v | |
| State of Queensland Mr Doug Quadrio Mr Peter Lemon (Respondents) |
| APPLICATION NUMBER: | ADL047 -13 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 17 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to strike out a proceeding is dismissed. 2. Ms Rintoul will file and serve further particulars of her claim by 31 March 2014. 3. The respondents will file and serve any submissions as to the costs of this application by 14 April 2014. 4. Ms Rintoul will file and serve any submissions in reply to the respondents’ submissions on costs by 28 April 2014. 5. The respondents will file and serve their contentions in response setting out any disputed facts, contending why the conduct complained of does not amount to unlawful discrimination, commenting on the stated impacts and outcomes of Ms Rintoul and stating what outcome they are seeking by 19 May 2014. 6. Ms Rintoul must file in the Tribunal and give one (1) copy to the respondents: a. Jennette Rintoul’s statement of evidence, which must be page numbered; 7. If Ms Rintoul does not comply with paragraphs 2 and 4 by the due dates, application ADL047-13 will be dismissed without further order. 8. The respondents must file in the Tribunal and give one (1) copy to Ms Rintoul: a. The statement from each witness to give evidence for State of Queensland, Doug Quadrio and Peter Lemon at the hearing including any experts and; 9. The application is listed for a Directions hearing on 25 June 2014 at 9.30am. 10. The application is listed for Hearing in Brisbane on 17 and 18 July 2014. |
| CATCHWORDS: | TRIBUNAL PROCEDURE – DIRECTIONS – where directions made for conduct of the proceeding – where applicant non-compliant with directions – where application to strike out claim – whether non-compliance with directions – whether reasonable excuse for non-compliance – whether unnecessary disadvantage suffered because of non-compliance Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(c), 28(3)(e), 48(2), 48(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Rintoul alleges that she suffered discrimination in the workplace when she was a teacher at Atherton State High School.
She lodged her complaint with the Anti-Discrimination Commission Queensland on 6 September 2012. Her complaint was out of time but the Commission considered Ms Rintoul’s explanation of the delay and accepted the complaint. Her complaint was referred to the tribunal on 6 June 2013.
The respondents have applied to strike out Ms Rintoul’s claim under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The tribunal may do so if it considers a party is acting in a way that unnecessarily disadvantages another party by not complying with a tribunal order without reasonable excuse[1]. If the tribunal is satisfied that s 48 applies, it may order the proceeding to be dismissed or struck out[2]. It may also order costs[3]. The tribunal must have regard to[4]: the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; that party’s capacity to understand and act on the tribunal’s orders; and whether the party is acting deliberately.
[1]QCAT Act s 48(1)(a).
[2]Section 48(2)(a).
[3]Section 48(2)(c).
[4]Section 48(3).
Background to the application
By directions dated 5 August 2013, the tribunal directed Ms Rintoul to file and serve a statement of contentions: setting out the factual detail of the conduct complained of; identifying why that conduct amounts to unlawful discrimination; particularising the impact the conduct had; and stating what outcomes she sought by 16 September 2013. Ms Rintoul did not comply with those directions.
On 18 September 2013, Ms Rintoul requested an extension of time to 20 September 2013 in which to comply with the directions. The tribunal gave her until 23 September 2013 to file her statement of contentions. Ms Rintoul sent her submissions to the tribunal on 25 September but she did not serve the respondents.
On 15 October 2013, Crown Law, on behalf of the respondents, wrote to Ms Rintoul’s lawyers, expressing concern about whether the submissions complied with the tribunal’s directions. Ms Rintoul’s lawyers responded by letter of 28 October 2013, disputing the concerns and advising they did not intend any further response.
Crown Law brought the matter back to the tribunal. On 11 November 2013, the tribunal directed that Ms Rintoul file an amended list of directions. Ms Rintoul complied by filing a “table of particularised alleged discrimination” on 14 November 2013. Crown Law submits that this document still does not comply with the tribunal directions as it fails to identify how the alleged conduct constitutes direct or indirect discrimination under the Anti-Discrimination Act 1991 (Qld).
On 9 January 2014, after Crown Law filed and served the current application, Ms Rintoul’s lawyers filed a revised table.
Was there non-compliance with the tribunal orders?
Ms Rintoul’s lawyers submit that they have complied with the tribunal’s orders. But by filing amended submissions, each more specific and detailed than the last, Ms Rintoul’s lawyers have demonstrated that their earlier efforts did not comply with the tribunal’s orders. I am satisfied that Ms Rintoul has a history of non-compliance with tribunal orders.
I am also satisfied that Ms Rintoul has still not complied with the tribunal’s orders. Not all aspects of the amended table detail the way in which the conduct amounts to discrimination within the meaning of the Anti-Discrimination Act. Further, although Ms Rintoul claims compensation, she has not provided any details of the amount she seeks or the basis for calculating that amount.
Does Ms Rintoul have a reasonable excuse for non-compliance?
Ms Rintoul’s lawyers address this issue in a circumspect way. They say they have:
… gone some way in applying the elements of the legislation to the conduct. [They] consider this to have been unjustly imposed…
and that Ms Rintoul:
cannot be expected to have provided the level of detail requested by Crown Law without being expressly directed to do so by the Tribunal.
The Tribunal must always balance speed against a proper consideration of the issues; informality against the obligation that parties know what case they have to meet. The tribunal’s obligation to act with “little formality and technicality”[5] is subject to the condition that there is a proper consideration of the matter before the tribunal.
[5]QCAT Act s 28(3)(e).
The hearing of an application based on broad allegations that are not tied to the specific meanings of discrimination in the Anti-Discrimination Act is fraught with difficulties. It consumes significant resources. It is not an economical and quick process[6]. It does not ensure proceedings are conducted in a way that minimises costs to the parties[7]. It leaves the decision maker at risk of an appeal because the issues may not be well articulated or argued. That is why the tribunal directs an applicant to set out the factual details of the conduct, identify why that conduct amounts to unlawful discrimination, particularise the impact of the conduct and what outcome the applicant seeks.
[6]QCAT Act s 3(b).
[7]QCAT Act s 4(c).
The Anti-Discrimination Act is a difficult beast to master. That is why the tribunal usually allows parties to be legally represented in the jurisdiction. However, the tribunal expects more from legal representatives than from self-represented parties. It is not enough for Ms Rintoul’s lawyers to say that they did some of the work required of them; they must do it all.
The terms of the tribunal’s orders are clear. A significant level of detail was always contemplated. Ms Rintoul’s lawyers cannot assert that this was ever in doubt or that they were not expressly directed to provide it.
Ms Rintoul has not provided a reasonable excuse for non-compliance with the tribunal’s directions.
Have the respondents been unnecessarily disadvantaged?
The events complained of occurred between 2010 and November 2011. I have already noted that the Commission accepted Ms Rintoul’s complaint even though it was out of time.
Memories have already begun to fade. Even Ms Rintoul has difficulty recalling precise times, dates and conversations. As time passes, it will be even more difficult for witnesses to recall events at the level of detail the tribunal requires.
Crown Law submits that Ms Rintoul’s failure to comply means there is a risk that the dispute will not be heard in March 2014. But those dates were vacated by the tribunal’s order of 5 December 2013. Crown Law says that the hearing may not be set down for “some time”. However, the tribunal has been able to set the matter down for hearing in July 2014. The delay of a few months will not adversely affect the witnesses’ ability to recall events which occurred some years before.
I am not satisfied that the disadvantage is sufficient to justify Ms Rintoul’s claim being struck out. However, I am satisfied that the respondents have been put to unnecessary expense in attempting to extract proper particulars of Ms Rintoul’s claim.
Because she engaged lawyers, I am entitled to assume that Ms Rintoul was familiar with the tribunal practices and procedures. If she chooses to engage lawyers from Western Australia, they may not argue that they are not familiar with the tribunal process. They must take the jurisdiction as they find it, which is probably not so different form the State Administrative Tribunal in their own jurisdiction.
I am satisfied that Ms Rintoul understood and was capable of acting on the tribunal’s orders. I have also formed the view that the failure to provide detailed particulars was deliberate, although I am not yet persuaded that the failure was deliberately designed to cause disadvantage.
Therefore, I am inclined to order Ms Rintoul pay Crown Law’s costs of and incidental to this application. The parties may file and serve submissions on that point, including Crown Law’s estimate of those costs, before I make a final determination.
Directions
1. Ms Rintoul will file and serve further particulars of her claim by 31 March 2014.
2. The respondents will file and serve any submissions as to the costs of this application by 14 April 2014.
3. Ms Rintoul will file and serve any submissions in reply to the respondents’ submissions on costs by 28 April 2014.
4. The respondents will file and serve their contentions in response setting out any disputed facts, contending why the conduct complained of does not amount to unlawful discrimination, commenting on the stated impacts and outcomes of Jennette Rintoul and stating what outcome they are seeking by 19 May 2014.
5. Ms Rintoul must file in the Tribunal and give one (1) copy to the respondents:
a. Jennette Rintoul’s statement of evidence, which must be page numbered;
b. The statement from each witness to give evidence for Jennette Rintoul at the hearing including any experts and;
c. Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 26 May 20146. If Ms Rintoul does not comply with paragraphs 2 and 4 by the due dates, application ADL047-13 will be dismissed without further order.
7. The respondents must file in the Tribunal and give one (1) copy to Jennette Rintoul:
a. The statement from each witness to give evidence for State of Queensland, Doug Quadrio and Peter Lemon at the hearing including any experts and;
b. Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 23 June 20148. The application is listed for a Directions hearing on 25 June 2014 at 9.30am.
9. The application is listed for Hearing in Brisbane on 17 and 18 July 2014.
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