The State has been recognised for observing model litigant principles in a Queensland Industrial Relations Commission (QIRC) matter involving an impecunious litigant.
In June last year, “TK” applied to the QIRC for re-instatement to a position with Queensland Health, and after conciliation failed, the matter was referred to Industrial Commissioner Dwyer for hearing in Brisbane last Wednesday.
In his decision published on Friday, Commissioner Dwyer said the unrepresented litigant’s Statement of Facts and Contentions (SOFC) troubled him.
“The SOFC was not in the proper form but more particularly, it contained extensive content that alleged persecutory conduct by certain colleagues of the Applicant and various satanic references,” he said.
“It ought to be noted the SOFC caused me significant cause to suspect that the Applicant lacked capacity to properly conduct proceedings on his own behalf.
“As such, in the absence of independent medical verification of capacity, I was unprepared to allow the matter to proceed.”
Commissioner Dwyer said he needed to ensure TK could have an opportunity to lucidly present his case.
“But it is not for the Commission to simply declare a litigant unfit on a mere suspicion that they are. Fairness demands that any such conclusion, and any order that follows it, must be supported by independent expert evidence from a properly qualified registered medical practitioner,” he said.
Commissioner Dwyer said an “unfortunate impasse” then arose because TK could not afford a medical report.
“As an impecunious litigant unable to comply with such a request, the Applicant was liable to suffer significant injustice until the impasse was broken,” he said.
“Given the situation, the Respondent, in a proper discharge of the model litigant principles and other professional duties, consented to pay for the report.”
The subsequent psychiatrist report contained a diagnosis of delusional disorder and a differential diagnosis of schizophrenia.
“I consider it would be grossly unfair to the Applicant to permit him to squander his right to be heard on the reinstatement application while he so plainly lacks capacity,” Commissioner Dwyer said.
He said the only appropriate step was to stay the proceedings, which neither party had sought, but which the IRC was nonetheless allowed to order under the Industrial Relations Act 2016 (Qld).
“In circumstances where I am now in possession of compelling expert evidence confirming the Applicant’s lack of capacity to conduct proceedings on his own behalf, I am satisfied that the interests of justice are best served by staying the proceedings,” he said.
“In coming to this conclusion, I am faced with a further dilemma in that I am now no longer able to act, with any confidence, on any submission made by the Applicant.
“This would include hearing from the Applicant as to why I should not stay the proceedings. This situation will persist until such time as the evidence of his incapacity that is contained in the report is displaced.”
Commissioner Dwyer ordered the proceeding be stayed until 31 July 2025.
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