Singh v Donoghue & Rockhampton Cab Company Ltd - [2013] QCAT 526

CITATION:

Singh v Donoghue & Rockhampton Cab Company Ltd [2013] QCAT 526

PARTIES:	Mr Jitender Singh (Applicant)
v
Ms Donna Donoghue Rockhampton Cab Company Ltd (Respondents)

APPLICATION NUMBER:

ADL084-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

30 September 2013

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave granted for Jitender Singh to be represented by Anil Kumar at this hearing.

2. The application for an interim order is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – where conduct alleged to constitute victimisation following lodgement of a complaint – where interim order sought to prohibit further conduct alleged to constitute victimisation

Anti-Discrimination Act 1991 s 144

McIntyre v Hastings Deering (Australia) Ltd [2012] QCAT 438

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Jitender Singh represented by Mr Anil Kumar

RESPONDENTS:

Ms Donna Donoghue appeared for herself and for Rockhampton Cab Company Ltd

REASONS FOR DECISION

Jitender Singh is a taxi driver who through a licence arrangement drives a taxi bearing the logo of Rocky Cabs. He is subject to the by-laws of Rockhampton Cab Company Ltd which regulate the conduct of members and drivers associated with that company.
Mr Singh has been given four letters of complaint about his conduct as a taxi driver issued under the hand of the manager of Rockhampton Cab Company Ltd, Donna Donoghue. Prior to these complaint letters being issued, Mr Singh had lodged a complaint with the Anti-Discrimination Commission, Queensland against Ms Donoghue and the Rockhampton Cab Company Ltd alleging unlawful discrimination.
He had also applied to QCAT for an interim order under section 144 of the Anti-Discrimination Act 1991 seeking to prohibit the respondents from proceeding with action that might stop him being allocated driving jobs by Rocky Cabs. That application was dismissed at hearing on 13 September 2013 when Mr Singh told QCAT that Rocky Cabs had not taken action to prevent him from being allocated jobs.
On or about 10 September 2013 Mr Singh lodged a further complaint with the Anti-Discrimination Commission, Queensland alleging that the respondents had committed further unlawful discriminatory conduct and victimisation. Mr Singh also applied to QCAT for an interim order under section 144 seeking an order to prevent the respondents from taking any further action about the letters of complaint.
At the hearing on 30 September 2013, leave was granted to Mr Singh to be represented at the hearing by Anil Kumar who was not an Australian Legal Practitioner but who was considered by me to be an appropriate person to represent Mr Singh at that hearing. Mr Singh will need to seek further leave if he wants to have Mr Kumar represent him in any further stage of this complaint at QCAT.
Mr Singh had submitted in written submissions filed in the tribunal that the practical effect of the respondents’ actions in issuing the letters of complaint would involve the imposition of financial penalties and the revocation of the right of Mr Singh to drive a taxi in Rockhampton. It was submitted that if this should occur, Mr Singh would lose his source of income, he will suffer severe financial hardship and his ability to proceed with his complaint and any other remedy would be of little value to Mr Singh.
It was submitted that the course of action involved with the letters of complaint would undermine any conciliation conferences which may be held over the course of Mr Singh’s complaint made under the Anti-Discrimination Act 1991. It was submitted that Mr Singh had established a prima facie case of unlawful discrimination and that the balance of convenience lies in favour of Mr Singh.
Despite being ordered to send a copy of his written submissions to the respondents by 23 September 2013, Mr Singh did not do so and Ms Donoghue had not had the benefit of considering the submissions prior to the hearing. Nevertheless, all parties agreed that the hearing should proceed on 30 September 2013.
Mr Kumar at the hearing conceded that he had not prepared the written submissions and he was unable to enlarge on the assertion contained in the written submissions that Mr Singh had already established a prima facie case in his complaints of unlawful discrimination.
Mr Kumar used most of his address to the tribunal to argue that the proposed hearing of the complaints made against Mr Singh by the by-law committee of Rockhampton Cab Company Ltd would be unfair and would amount to victimisation of Mr Singh for speaking out about discrimination and for lodging his original complaint with the Commission. He stated that Ms Donoghue would be part of the by-law committee and that she would influence the outcome of the committee.
The tribunal was told by Ms Donoghue that the by-law committee could not terminate Mr Singh’s licensing arrangements with Rocky Cabs but if the conduct complained of was substantiated, the committee could impose either a $500 fine or remove Mr Singh’s rights to be allocated jobs for 5 days. Mr Kumar disputed that assertion and told the tribunal that due to the potential number of demerit points involved in the four complaints, Mr Singh could face a fine of $1,000 and not $500.
Mr Kumar did not dispute the assertion made by Ms Donoghue that the by-law committee could not itself revoke the ability of Mr Singh to drive cabs for Rocky Cabs for more than a temporary period of time if he preferred to take the penalty of having time off the road over paying a monetary penalty. Ms Donoghue further clarified for the tribunal that a revocation of the authorisation to drive cabs for Rocky Cabs could eventuate if an appeal was taken to the Board of Directors.
The assertions made by Ms Donoghue are supported by the documents provided to the tribunal by Mr Singh setting out the schedule of offences and penalties used by Rockhampton Cab Company Ltd to deal with allegations of improper conduct by its drivers. It appears from those documents that the conduct alleged against Mr Singh would not result in a Board hearing or put Mr Singh at risk of having his authorisation to drive with Rocky Cabs either suspended or withdrawn. In essence the outcome would be either a direct financial penalty or a penalty with financial implications through loss of work for a period of some days.
Mr Kumar stated that Mr Singh was not seeking the interim order because of the financial impact that the letters of complaint process may have on him but rather because of the humiliation and hurt to his pride that would ensue if he had to undergo publically a process that was discriminatory. Mr Kumar argued that QCAT should act now to prohibit the continuation of a discriminatory process.
QCAT’s power to make an interim order prohibiting action that Rockhampton Cab Company Ltd would otherwise be lawfully able to take is provided in section 144 of the Anti-Discrimination Act 1991. The power is limited by the express terms of that section but is a power that can be exercised at the discretion of the tribunal. Mr Singh must satisfy the tribunal that the terms of section 144 can be established before an interim order is made.
The particular requirements of section 144 require an applicant to satisfy the tribunal that it is necessary to prohibit some action on the part of the respondents as that action might prejudice the investigation or conciliation of the complaint or might prejudice an order that the tribunal might make after a hearing. Only once one of those terms are satisfied does the tribunal have to consider the factors commonly considered in granting injunctive relief: is there a prima facie case and what is the balance of convenience.
During the hearing I had to draw Mr Kumar back to the terms of section 144 and ask him to address those terms. In particular I asked Mr Kumar if he could tell the tribunal how continuing with the by-law committee meeting and the possible imposition of a penalty by that committee might prejudice the investigation or conciliation of the complaint at either the Commission or QCAT. He could not provide an explanation and indeed it would be difficult to endeavour to argue that any steps that will be undertaken by the Commission or QCAT would be prejudiced by the holding of the by-law committee meeting. I am satisfied that holding such a meeting and the imposition of a penalty as allowed by the by-laws will not interfere with the progress of Mr Singh’s discrimination complaint in any way through the Commission or QCAT.
Mr Kumar similarly was unable to explain how the holding of the by-law committee meeting and imposition of a penalty would prejudice or interfere with any order that QCAT could make if it ultimately found that there had been some unlawful discriminatory conduct on the part of the respondents. QCAT could award monetary compensation for lost income and for any hurt and humiliation that Mr Singh could prove he had experienced by any discriminatory conduct or victimisation.
The written submissions filed on behalf of Mr Singh had submitted that Mr Singh’s ability to proceed with his complaint would be undermined and any order made would be of little value to Mr Singh if an interim order were not to be made. The submissions relied on decisions made by QCAT in which interim orders had been made under section 144, in particular McIntyre v Hastings Deering (Australia) Ltd.[1]
[1] [2012] QCAT 438.
It was submitted that Mr Singh’s case was analogous to the McIntyre case. I do not agree. If an interim order was not made in the McIntyre case, the applicant could not continue to work as her family responsibilities prevented her from working under the new roster, to which she had objected, and any ultimate order made for re-instatement after a hearing would have been impractical.
I am satisfied that the tribunal can make an order adequately compensating Mr Singh for any personal and financial impacts on him from any conduct which is found to be unlawful discrimination after a hearing. Even if the respondents revoked his authority to drive taxis for Rocky Cabs prior to a hearing of his complaint by QCAT, which was not a proposition seriously argued, an order could be made requiring that driving authority to be re-instated by the respondents. Accordingly, an order from QCAT awarding monetary compensation or ordering re-instatement would have great value for Mr Singh.
It was not explained how Mr Singh’s ability to proceed with his complaint would be undermined if an interim order were not to be made. He is effectively self represented and has not disclosed any need to continue working in order to cover legal costs incurred in this complaint.
I am not satisfied that an interim order should be made under section 144. In view of the failure of Mr Singh to establish the existence of grounds for an interim order, I refuse his application.