Rintoul v State of Queensland (No 2)
[2014] QCAT 332
| CITATION: | Rintoul v State of Queensland & Ors (No 2) [2014] QCAT 332 |
| 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: | Justice Thomas, President |
| DELIVERED ON: | 11 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The answer to the question referred – whether the proceeding ADL047-13 was dismissed on 31 March 2014 following Ms Rintoul’s failure to comply with the decision (specifically paragraph 2) dated, 17 March 2014 – is that the proceeding ADL047-13 was dismissed. |
| CATCHWORDS: | PROCEDURE – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – QUESTION OF LAW REFERRED – EFFECT OF ORDERS AND DIRECTIONS – SELF-EXECUTING ORDERS – where tribunal directed applicant file material by specified time and date – where tribunal directed that non-compliance would result in the application being dismissed without further order – where non-compliance with direction – whether effect of earlier direction dismissed proceedings at date and time specified Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 32, s 117, s 126, s 127, s 135 Criminal Justice Commission v Queensland Advocacy Incorporated [1996] 2 Qd R 118 |
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
Background
Ms Rintoul’s complaint, that in the course her employment as a teacher being terminated, she suffered discrimination, has been with the tribunal since June 2013. The original complaint, made to the Anti-Discrimination Commission, was filed on 6 September 2012. As the background illustrates, the proceedings progress to hearing has not been smooth. Although the tribunal ordered the applicant file a statement of contentions by 16 September 2013, this step remained incomplete as at 17 March 2014. On that date, an application made by the respondent to have the proceeding struck out was dismissed.
Also on 17 March, directions were made requiring the applicant to file and serve further particulars of her claim by 4.00pm on 31 March 2014 (paragraph 2). Paragraph 7 of those directions said:
If Ms Rintoul does not comply with paragraph 2 and 4 by the due dates, application ADL047-13 will be dismissed without further order.
By letter dated 31 March 2014, sent by facsimile, the applicant’s legal representatives (at that time) sought a further extension of time to comply with paragraph 2. That letter did not come to the attention of a member of the tribunal until 1 April 2014. The applicant did not apply for a stay of the directions dated 17 March, and no stay was ordered by the tribunal. On 1 April 2014, the learned Senior Member made directions that the correspondence received on 31 March be treated as an application for an extension of time. She vacated paragraphs 2 – 10 of directions made on 17 March 2014, and allowed an extension for compliance with paragraph 2 to 4.00pm on 1 April 2014.
On 13 May 2014, the tribunal received an application for miscellaneous matters from the respondent, requesting that the presiding Senior Member refer a question of law to the President. After consultation with both parties at a Directions Hearing held on 24 June, and in accordance with section 117 of the QCAT Act, the following question of law was referred:
Whether the proceeding ADL047-13 was dismissed on 31 March 2014 following Ms Rintoul’s failure to comply with the decision (specifically paragraph 2) dated, 17 March 2014.
At the Directions Hearing, the parties were given an opportunity to file submissions pertaining to the question of law referred. Their submissions have been received by the tribunal.
The applicant’s submissions
The applicant submits that, by implication, paragraph 2 indicated that a further action was required, although not necessarily a formal order, to dismiss the proceedings in the event of non-compliance. It is submitted that the direction does not say, or imply, that the proceedings are dismissed, either automatically or deemed.
It is submitted that the tribunal, in having received the request for an extension of time and with the means to deal with it prior to the time for compliance with the order, should not cause disadvantage to the applicant. The applicant says that the circumstances were beyond her control, and were, in fact, in the ‘direct control’ of QCAT.
The applicant points to the substantive reasons behind the request for an extension, and submits that they were ‘strong and cogent’ in light of the time frame imposed for filing further particulars.
The applicant submits that no disadvantage is suffered by the respondents in granting the extension of time, particularly because the time frame for the respondent’s filing of further material was also extended by the directions of 1 April, and that the applicant had, by the time of the submissions, complied with the extended time frame set in those directions.
The submissions conclude by noting the ‘late stage’ in the proceedings; the time, effort and expense both parties have resourced so far, and that the failure of the applicant to comply with the directions of 17 March did not result in the formal dismissal of the proceedings.
The respondent’s submissions
The respondent says that the submissions filed on behalf of the applicant ‘miss the point’. The respondent notes the ‘contemptuous’ nature of the applicant’s submissions that attribute the tribunal with responsibility, and a number of deficiencies with the request made on 31 March. The respondent says that, if it is decided the proceedings were in fact dismissed at 4.00pm on 31 March, it is the result of the applicant’s ‘continuous non-compliance with the tribunal’s directions and orders’.
Further, the respondent submits there is no implication that some further action was required before paragraph 7 of the directions of March 17 took effect. The respondent refers to section 127(b) of the QCAT Act in support of this submission. To avoid the operation of that section, the applicant should have successfully applied for a stay of the 17 March directions. The applicant did not give "strong and cogent" reasons when requesting the extension, and had since September 2013 to file further and better particulars of her complaint in the tribunal. The respondent submits that, in the context of the self-executing order made, the applicant or her solicitors should have made an application for an extension of time as soon as it became apparent that they would have difficulties meeting the time frame.
The other named respondents are disadvantaged, and deserve certainty and finality. The self-executing order was appropriately made by the tribunal in ‘extreme circumstances... where it seems that no other order would move the party in default into action’.[1]
[1]Roberts and Anor v Nunn [2012] QCATA 131 at [64].
The applicant’s compliance now with the date for filing is of no assistance to her, particularly in the context of her history of non-compliance. The respondent rejects the submission made on behalf of the applicant regarding the stage the proceedings are at. The respondent says that it has only proceeded to prepare for a hearing on the basis that the tribunal refused to grant a stay of the directions of 1 April 2014.
Discussion
Decisions of the tribunal in a proceeding are binding on all parties to the proceeding.[2] What the question referred seeks to clarify is whether the decision had effect, or took effect on the occasion of non-compliance.
[2]QCAT Act s 126(1).
It is common practice of the tribunal that orders are made dismissing proceedings without further order for non-compliance with directions previously made. Such orders are often referred to as “self-executing”, defined by the Oxford Dictionary as ‘operating or occurring automatically’, and take effect immediately on the lack of compliance with the relevant order.
Not surprisingly, section 127(b) of the QCAT Act provides that where a decision of the tribunal is said to take effect at a date later than the date of the order, then the decision takes effect on the later date or time.
The applicant submits that ‘by implication, the order dismissing the proceedings for non-compliance, indicated that a further action was required, although not necessarily a formal order’. She further says that ‘the direction does not say, or imply, that the proceedings are dismissed, either automatically or deemed’.
The wording (and thus the operation) of the order is, in my view, clear. I do not believe, as is submitted by the applicant, that any implication associated with the order required further action. On failure to comply by either of the due dates, application ADL047-13 was dismissed without further order. The applicant has not referred to any power under the QCAT Act which would allow the proceedings to be revived after the proceedings are dismissed. Presumably, that is because in circumstances where no reopening ground exists,[3] or where no correction or error is to be amended,[4] there is no power in the QCAT Act to revive proceedings that have been dismissed.
[3]See QCAT Act Schedule 3.
[4]QCAT Act s 135.
It follows that, by operation of the direction made on 17 March, and without further order, the application was dismissed at 4.00 pm on 31 March 2014. The answer to the question is: the proceeding ADL047-13 was dismissed at ‘4.00pm on 31 March 2014’ following Ms Rintoul’s failure to comply with the directions (specifically paragraph 2) dated, 17 March 2014.
The applicant refers, at length, to the merits associated with whether the date and time for compliance should have been extended so as to avoid the self-executing aspects of the order. A letter was sent to the tribunal which referred to a possible extension of time, but no order was made before the self-executing order took effect. These submissions are not, in my view, relevant to the current question which I have been asked to answer. Considerations of this type may have been relevant in the context of an application to extend time, but that is not the subject matter of the question posed. The question posed relates to the effect of an order made on 17 March 2014.
The applicant refers to the tribunal having received a request for an extension of time; having the means to deal with it prior to the time for compliance with the order, and asserting that the circumstance was beyond the control of the applicant, and was in fact, in the “direct control” of QCAT, in making a submission that this should not cause disadvantage to the applicant.
Whilst this submission is, in my view, irrelevant to the question referred, I will, for completeness, make some observations which apply to the tribunal in general. It is relevant to note that pursuant to section 3(b) of the QCAT Act, the tribunal is to deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal is also charged with a number of functions to achieve those objects, which amongst others, include encouraging the early and economical resolution of disputes before the tribunal;[5] ensuring that proceedings are conducted in an informal way that minimises costs to parties, and that is as quick as is consistent with achieving justice;[6] and ensuring that like cases are treated alike.[7]
[5]QCAT Act s 4(b).
[6]QCAT Act s 4(c).
[7]QCAT Act s 4(d).
The deadline for compliance was 4.00pm on 31 March. This was clear from the terms of the direction. The letter was received by the tribunal just prior to that time; it was not in the form of an application, and there was no supporting material. The other party was not given notice of the letter.
Except in exceptional circumstances it is neither “fair”, or “just”, nor consistent with the overriding principles of natural justice and procedural fairness, that such a matter be dealt with, without notice to the other party, which should be given an opportunity to be heard on the orders proposed. It is the obligation of the party making the application (certainly not the tribunal) to ensure that the other party is given adequate notice.
It is incorrect to conclude that, once such a letter has been sent to the tribunal, the matter is beyond the control of the party. As in other judicial bodies, especially where the parties have legal representation, it is the obligation of the parties to the proceedings to take appropriate steps to ensure that their interests are protected. For example, in this case, it would readily have been open to the applicant to seek an urgent directions hearing on notice to the other party, or to make contact with the Registry. The applicant took no such reasonable actions.
In my opinion, the objective of the tribunal is to provide a fair and just process in accordance with the overriding principles of natural justice and procedural fairness. Other aims, such as conducting proceedings with as little formality as possible must be balanced with that overarching objective. Those aims are not to take precedence, or be applied to the exclusion of overarching principles, and can not give rise to private rights enforceable in the tribunal.[8]
[8]Criminal Justice Commission v Queensland Advocacy Incorporated [1996] 2 Qd R 118 at 144 per Demack J.
Finality in decision making is a key public interest consideration that the tribunal observes in carrying out its functions and in the administration of justice. The importance of finality in decision making and, the resulting certainty in decision making, has been widely recognised by courts and tribunals in Australia.[9] To repeat the oft repeated words of Sir Frederick Jordan CJ in In re Will of FB Gilbert (dec’d), if a tight reign is not kept on litigation ‘cases could be delayed interminably and costs heaped up indefinitely’.[10]
[9]Lucic v Nolan and Others (1982) 45 ALR 411 at 416.
[10]Sir Frederick Gordon CJ: in In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 322. See also Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 at [51] per Muir JA.
Answer
The answer to the question is: the proceeding ADL047-13 was dismissed at “4.00pm on 31 March 2014” following Ms Rintoul’s failure to comply with the directions (specifically paragraph 2) dated,17 March 2014.
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