Turner v Racing Queensland Ltd & Orchard - [2013] QCAT 707

CITATION:

Turner v Racing Queensland Ltd & Orchard [2013] QCAT 707

PARTIES:	Bevan Turner (Applicant)
v
Racing Queensland Limited Jamie Orchard (Respondents)

APPLICATION NUMBER:

ADL035-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

28 November 2013

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

3 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant can rely only on paragraphs 1, 2, 5, 9 and 15 of the second Affidavit of Lyle Neville Beaton filed in the Tribunal on 15 November 2013.

2. The application made on behalf of Bevan Turner for an order for the respondents to produce documents is dismissed.

3. The applicant has leave to re-apply for an order for the production of documents after the filing of evidence by the respondents in this proceeding.

CATCHWORDS:

ANTI-DISCRIMINATION – production of documents before the close of evidence – premature application

Queensland Civil and Administrative Tribunal Act 2009 ss 28, 62

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Bevan Turner represented by Mr Reidy of Counsel instructed by Susan Moriarty & Associates

RESPONDENTS:

Racing Queensland Limited and Jamie Orchard represented by Dr Spry of Counsel instructed by Latitude Lawyers

REASONS FOR DECISION

Bevan Turner was employed as a steward/investigator by Racing Queensland Limited until his employment was terminated on 8 September 2011. He was one of three steward/investigators at Racing Queensland prior to the termination of his employment. At the time of the termination of his employment, Mr Turner was 63 years of age and the other steward/investigators were considerably younger than Mr Turner.
In the period from 2007, Mr Turner had been treated for three serious medical conditions, including pancreatic cancer. As a result of his medical conditions, Mr Turner had had some lengthy absences from work. Mr Turner alleges he had developed some impairment as a consequence of the medical conditions. The other steward/investigators did not have any such impairment.
Mr Turner complains that his employer placed restrictions on his employment and treated him differently for rostering purposes that amounted to unfavourable treatment of him under the Anti-Discrimination Act 1991 and that the other steward/investigators were not placed under those restrictions or rostering arrangements. Mr Turner complains that he had been treated unfavourably on the basis of his impairment.
Mr Turner was made redundant on 8 September 2011. He complains that the decision to terminate his employment was unfavourable treatment based on his age and on his impairment. Mr Turner seeks an apology and monetary compensation for the loss of his employment.
The respondents deny that their conduct amounts to unlawful discriminatory conduct in breach of the Anti-Discrimination Act 1991. The respondents contend that Mr Turner was at all times a valued employee and deny that he was rendered more vulnerable to termination of employment by redundancy because of his age or impairment.
It is contended by the respondents that due to the changing nature of the workload of the area in which Mr Turner worked, a restructure took place of the positions within the workforce. The position held by Mr Turner was made redundant as new roles were required to meet the changed needs of the business conducted by the employer. It is contended that Mr Turner did not have legal qualifications and he was not able to perform racing appeals to the standard required by the employer. The respondents deny that the selection of the position held by Mr Turner for redundancy was in any way discriminatory.
The complaint has been set down for hearing in May 2014. Mr Turner brought an application seeking orders for the production of certain documents which he contends are in the possession of the respondents and which he contends are relevant to the issues to be determined by the tribunal in this complaint. In general terms the sought after documents relate to the restructure of the workforce and the redundancy of Mr Turner’s position, to the performance of Mr Turner in his role as steward/investigator and to details of the remuneration paid to the employee engaged to replace Mr Turner.
The respondents resisted the application for production of documents. Although several grounds were relied on to resist the application, the primary ground was that the application was premature.
It was argued by the respondents that Mr Turner had been ordered in October 2013 to file amended contentions updating any changes to the outcomes he was seeking from the tribunal. He was also ordered to file his statement of evidence and statements from his witnesses by 25 January 2014. The respondents have until 31 March 2014 in which to file their response to the amended contentions and to file their evidence. It was argued that until the final version of the contentions had been filed by the parties and until the evidence of the parties had been filed, there was no utility in requiring the respondents to produce documents and to order the respondents to do so would incur unnecessary costs before the final version of the case to be met was known.
It was argued by the respondents that evidence of the facts sought to be established via the production of the sought after documents may yet be set out in the witness statements to be filed by the respondents. It was argued that it was wrong to impose an obligation on the respondents to produce documents at this stage of the proceedings.
The tribunal has an obligation to ensure that as far as practicable all relevant material is disclosed to the tribunal in a proceeding.[1] The best time to assess whether all relevant material is available to the tribunal is after the evidence of the parties has been filed. That time will not occur until at least 31 March 2014. Until then, it would not be feasible to identify what material additional to the filed evidence should be disclosed to the tribunal so it can decide the proceeding with all the relevant facts.
[1] QCAT Act s 28(3)(e).
I accept the submissions of the respondents that it is premature to require the respondents to produce documents by way of evidence in this proceeding before the contentions are finalised and before the evidence of the parties is filed. All the issues required to be determined by a hearing are not necessarily identified at this stage and the extent of the evidence to be produced by the respondents in filed witness statements is not yet known, even by the respondents.
It is not mere sophistry to find that this application is premature. QCAT has not incorporated into its processes all of the rules, practices or procedures of the courts. It is expressly not bound by the practices or procedures of the courts.[2] Disclosure of documents, as required in the initial stages of an action in the courts, is not a usual part of QCAT’s processes.
[2] QCAT Act s 28(3)(b).
Section 62 of the QCAT Act provides the tribunal with the power to give a direction at any time in a proceeding, including a direction requiring a party to produce a document or to provide information to the tribunal or to another party in the proceeding. The exercise of that power is discretionary and would have to be consistent with the requirement that the tribunal must act fairly and with as little formality and technicality as the proper consideration of the matters before the tribunal permit.[3] The exercise of the power must also be consistent with the objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[3] QCAT Act s 28(2), (3)(d).
I was not satisfied that making an order requiring the respondents to produce specific documents at this stage of the proceeding would achieve the objects of the QCAT Act to deal with this matter in a way that was fair, just or economical. An order for production of documents before the evidence of the parties had been filed would result in work being done by the respondents and by their lawyers and costs being incurred which may be later found to be unnecessary if the final version of the contentions of the parties and their evidence do not give rise to a need to prove the facts set out in the documents sought to be produced.
An example was highlighted during the hearing of the application. Mr Turner sought documents held by the respondents that record details about his performance in his role as steward/investigator as he states that he has a reasonable apprehension that his performance will be relied on to justify the decision to terminate his employment. The respondents argued that there was no basis on the face of the respondents’ contentions for this apprehension that performance was a factor in the decision to terminate his employment as the respondents have always relied on redundancy as the ground for termination of Mr Turner’s employment.
Mr Turner may want to argue that this ground merely was a cover for discriminatory conduct on the part of the respondents and he would be able to raise that argument at the hearing and cross examine the witnesses of the respondents on this point in order to seek to prove that issue. However that will be a matter for the hearing. I was not satisfied that Mr Turner needs to have documents from the respondents prior to preparing his own evidence that he will rely on at the hearing.
As the application for production of documents was premature, the application was dismissed. However Mr Turner has leave to re-apply after the respondents have filed their evidence.