Stainton v Footlong Subs Employment Services Pty Ltd

[2011] QCAT 186

CITATION: Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186

PARTIES:	Keiran Stainton
v
Footlong Subs Employment Services Pty Ltd

APPLICATION NUMBER:   ADL082-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 13 May 2011

DELIVERED AT: Brisbane

ORDERS MADE: The complaint is dismissed.

CATCHWORDS: 

ANTI-DISCRIMINATION – where non compliance with directions – where other party is caused unnecessary disadvantage

Queensland Civil and Administrative Tribunal Act 2009, s 48

APPEARANCES and REPRESENTATION (if any):

The tribunal conducted the hearing under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 on the papers in the absence of the parties. 

REASONS FOR DECISION

1. A complaint was referred to the tribunal that Kieran Stainton had been subjected to conduct that was in breach of the Anti-Discrimination Act 1991 in the course of his employment. Mr Stainton was represented by his mother in the proceeding. Mr Stainton filed written contentions in the tribunal as directed and attended a conference at the tribunal held under section 67 of the Queensland Civil and Administrative Tribunal Act 2009.

2. Further directions were made on 1 February 2011 that both parties provide to the tribunal a list of witnesses, witness statements and all other documentation to be relied on at the hearing of the complaint by 25 March 2011.  Mr Stainton did not comply with this direction.

3. A directions hearing was held on 4 April 2011.  Neither Mr Stainton nor his representative attended the directions hearing.  The tribunal made directions that Mr Stainton file in the tribunal a list of witnesses, witness statements and all other documents to be relied on by him by 15 April 2011.  A copy of all documentation filed under this direction was to be sent by Mr Stainton to Footlong Subs Employment Services Pty Ltd by 15 April 2011. 

4. The tribunal included in its directions on 4 April 2011 the following clause: In the event that the Applicant does not comply with these orders by the stated date, the Tribunal will consider dismissing the complaint of the Applicant under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 on the papers not before 21 April 2011.  

5. A copy of the directions was sent on 5 April 2011 to Mr Stainton via his representative.  The tribunal’s directions clearly set out the procedure that the tribunal would follow if Mr Stainton failed to comply with the directions made by the tribunal.  There has been no information provided to the tribunal that would lead the tribunal to conclude that either Mr Stainton or his representative would not be able to understand the directions made by the tribunal or that there are some circumstances that would prevent him from complying with the directions.   

6. He did not comply with the directions made by the tribunal.  He has not filed any list of witnesses, any witness statements or documents in accordance with the directions made by the tribunal.  He has not informed the tribunal that he has no further evidence to provide or that he will rely at the hearing of the complaint on only the evidence produced by him prior to the directions made first on 4 April 2011.  The scope of the evidence that he will seek to rely on at the hearing is unknown. 

7. Mr Stainton has not given any explanation for not complying with the directions of the tribunal.  In default of any explanation, the tribunal concludes that his non compliance has arisen due to a deliberate decision by Mr Stainton not to comply with the directions of the tribunal. 

8. His failure to comply with the directions of the tribunal and his failure to provide evidence in support of his complaint has resulted in disadvantage to the other party.  Footlong Subs Employment Services Pty Ltd has complied with the directions of the tribunal.  That party cannot respond fully to the complaint when information about the complaint is being withheld by Mr Stainton.    

9. It is a obligation of the tribunal under section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 to ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. For this reason directions are made for the filing of witness statements and documents to be relied on before the hearing of a proceeding. Parties are expected to take active steps to engage in a proceeding and have a specific duty in section 45 of the Queensland Civil and Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding.

[10]  The tribunal controls the hearing process not the parties.  The tribunal will not permit evidence being withheld and produced only at a hearing by a party.  Disclosure of the evidence in support of a matter is required to be made well before a hearing so that no party is taken by surprise or rendered at a disadvantage at the hearing.       

[11] The tribunal is satisfied that the non compliance by Mr Stainton with the directions of the tribunal is causing unnecessary disadvantage to the other party in the proceeding. In the absence of an explanation for his lack of action, the tribunal is satisfied that his complaint should no longer proceed and is dismissed under section 48 of the Queensland Civil and Administrative Tribunal Act 2009.