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  • Unreported Judgment

Treanor v State of Queensland

 

[2019] QIRC 146

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Treanor v State of Queensland (Queensland Police Service) [2019] QIRC 146

PARTIES:

Treanor, James

(Applicant)

v

State of Queensland (Queensland Police Service)

(First Respondent)

and

Burness, Scott

(Second Respondent)

and

Lehmann, Troy

(Third Respondent)

and

MacQueen, Scott

(Fourth Respondent)

and

Chase, Simon

(Fifth Respondent)

and

James, Paul

(Sixth Respondent)

CASE NO:

B/2018/31

PROCEEDING:

Application to dismiss proceedings

DELIVERED ON:

11 October 2019

HEARING DATE:

20 September 2019

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDER:

Application dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION TO DISMISS PROCEEDINGS – where application for order to stop alleged incidents of bullying – whether breach of legislative provisions – whether sufficient evidentiary nexus with the allegations to establish a case – where applicant taken in excess of twelve months to progress application – whether insufficient evidence against the public interest – where claims of noncompliance with directions.

LEGISLATION:

Industrial Relations Act 2016, s 272, s 273, s 275, s 541

Public Service Ethics Act 1994

Police Powers and Responsibilities Act 2000, s 796

Industrial Relations (Tribunal) Rules 2011 (Qld), r 45, r 56

CASES:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Rajski v Scitec Corporation Pty Ltd, unreported, NSWCA, 16 July 1986

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR1

Conway v Rimmer (1968) AC 910

Mio Art Pty ltd v Macequest Pty Ltd [2013] QSC 211

Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205

Amie Mac v Bank of Queensland Ltd & Others [2015] FWC 774

Director of Public Prosecutions v Smith [1991] 1 VR 63

Quinlan v Rothwell & Anor [2001] QCA 176

Workers' Compensation Regulator v Bero [2019] QIRC 36

Burton v The Shire of Bairnsdale (1908) "The Argus" Law Reports, Vol. XIV, 529

Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 61 ALJR 393

Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405

APPEARANCES:

Mr J. Treanor, Applicant, in person.

Mr G. Carthew, Public Safety Business Agency for the Respondents.

Decision

  1. [1]
    The State of Queensland (Queensland Police Service) (QPS/the first respondent) filed an application in existing proceedings on 29 July 2019 to the Queensland Industrial Relations Commission (the Commission) seeking that matter B/2018/31 be struck out under s 541 of the Industrial Relations Act 2016 (the Act).
  1. [2]
    In his Affidavit accompanying the application, Mr Carthew, representing all respondents, stated:
  1. I am the Manager for the Employee Relations Unit for the Public Safety Business Agency and an authorised agent for the Queensland Police Service and the Respondents listed in the Application of Mr Treanor, B/2018/31.
  2. On 6 July 2018 the applicant, Mr James Treanor filed an Application number B/2018/31 under s 273 of the Act.
  3. The applicant's application consisted of 33 pages with a total of 25 alleged incidents of bullying by senior officers of the Queensland Police Service based in the Gold Coast District. The number of allegations were reduced to twelve (12).
  4. The application listed a series of allegations and those officers allegedly responsible for the actions that the applicant maintains breached s 273 of the Act.
  5. On 29 May 2019 at a mention of the matter B/2018/31 before the Commission the applicant assured the Commission that he had sufficient information to prepare his affidavit to outline his arguments in respect of his allegations.
  6. In accordance with the Directions Order issued on 29 May 2019 the applicant was required to file 'a statement of evidence for each witness to be called (including the applicant) which have not yet been provided and which are to be relied upon in the hearing by 4.00 pm on Friday 12 July 2019'.
  1. (a)
    The Applicant failed to provide any affidavit or statement of evidence on the date set in the directions order.
  2. (b)
    The Applicant filed their affidavit on 29 July 2019, over two weeks late.
  3. (c)
    The Applicant has failed to comply with a directions order under s 45(1) of the Industrial Relations (Tribunals) Rules 2011 (the Rules).
  1. The affidavit of the applicant does not make any evidentiary statement as to the respective incidents and issues that are the subject of the application.
  1. (a)
    The applicant's affidavit, has reiterated his original allegations and has inferred that specific exhibits explain his contention that the issues breach the legislation.
  1. By virtue of r 56 of the Rules an affidavit filed out of time cannot be used in evidence unless the Commission otherwise decides.
  2. The applicant has not demonstrated sufficient evidentiary nexus with the allegations in his application and his affidavit to establish a case. The applicant's affidavit fails to demonstrate how the exhibit and the allegation interconnect to amount to a breach of the legislative provisions and as such should not be used in evidence.
  3. The applicant has taken in excess of twelve months to progress this application which has had a significant impact upon the Queensland Police Service and policing within the Gold Coast District.
  4. Any continuation of this matter due to the time element and insufficient evidence demonstrated by the applicant is against the public interest and should be dismissed by virtue of s 541(b) of the Act.
  1. [3]
    A Directions Order was issued by the Commission on 31 July 2019 requesting the parties to file written submissions in relation to this application.

Respondents' written submissions

Introduction

  1. [4]
    On 16 August 2019 the first respondent submitted that Mr James Treanor filed an application on 6 July 2018 for an Order to Stop Bullying (B/2018/31) against the QPS and eight other respondents pursuant to s275 of the Act.
  1. [5]
    A conference was held between the parties in relation to the matter on 18 July 2018 before Bloomfield DP at which time there was no resolution and the applicant sought the matter proceed to arbitration.

  1. [6]
    The matter was listed for Mention before the Commission as constituted on 17 August 2018 at which time the applicant reduced the number of issues for the proposed hearing from twenty-five (25) to twelve (12) together with a removal in the number of respondents to four (4) in addition to the QPS. On 27 November 2018 one of the respondents who had been removed was reinstated. In late 2018 the applicant reintroduced a matter that had been removed together with the corresponding respondent.

  1. [7]
    Between 17 August 2018 and 29 May 2019, the applicant requested disclosure on those matters in the application that were nominated for hearing.

  1. [8]
    At the mention on 29 May 2019 the applicant stated:

Well, I'll give you an undertaking, and I'll comply with that undertaking. That I will give you - I will provide an affidavit to my friend for the incidents where I have all the material that's been disclosed.[1]

The statement addressed the concern of the Commission that the matter needed to be progressed.

Application to strike out

  1. [9]
    On 29 July 2019 the respondent in this matter lodged an Application Form 4 together with an affidavit from Mr Glenn Carthew, Manager Employee Relations for the Public Safety Business Agency seeking the applicant's matter B/2018/31 be struck out under s 541 of the Act.

  1. [10]
    The respondent relied on the following material in respect of its application for strike out.

Non-Compliance with Directions Order

  1. [11]
    On 29 May 2019 the applicant, after probing for documentation for twelve months committed to the Commission that he was prepared to provide an affidavit outlining his case based on the current material that he had received from the respondents. The applicant maintained that he had sufficient material to provide an affidavit of his case.

  1. [12]
    The applicant was directed to lodge statements of all witnesses (affidavits) to be called (including the applicant) which have not yet been provided and which are to be relied upon by 4.00 pm 12 July 2019.

  1. [13]
    The applicant failed to lodge his affidavit on 12 July 2019 and lodged his affidavit on 29 July 2019, over two weeks late without a reasonable excuse. The applicant did not advise the Commission or the Respondents on the day when the affidavit was due that it was going to be late.

  1. [14]
    The Directions Order of 29 May 2019 required the lodgement of statements of evidence, i.e. the written account of a person's testimony. In this respect it is the testimony of the applicant as to the facts demonstrating what the applicant contends in their original application. The affidavit of the applicant will be used along with their witness statements to prove the truthfulness of statements as they relate to the assertions of the applicant in their application.

  1. [15]
    The provision of these statements as required by a Commission Directions Order is fundamental in the progression of the matter to hearing. These statements and affidavits are beneficial to both parties in preparing for hearing so that each party can be adequately advised on their prospects of success.

  1. [16]
    It has been observed that the filing and serving of affidavits or witness statements ensures the early appraisal of the opposite party with information about the matters truly in issue, thereby ensuring the saving of time and money for the parties and the court.[2]

  1. [17]
    Rule 45 of the Industrial Relations (Tribunal) Rules 2011 (Qld) (the Rules) states:

45Failure to attend or to comply with directions order

  1. This rule applies if -
  1. a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  2. the party fails to attend the hearing or conference.

  1. This rule also applies if -
  1. a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  2. the party fails to comply with the order.

  1. The court, commission or registrar may -
  1. dismiss the proceeding; or
  2. make a further directions order; or
  3. make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  4. make orders under paragraphs(b) and (c).

  1. [18]
    At the mention on 29 May 2019, the transcript confirms, that the applicant would provide an affidavit (based on the material that he already had in his possession) by 12 July 2019 which was subsequently filed two weeks late without any indication from him regarding the failure to meet the timeframes in the relevant Directions Order. This resulted in a breach of the Rules.

  1. [19]
    It is the submission of the respondents that based on the failure of the applicant to comply with the Directions Order of 29 May 2019 that the matter B/2018/31 be dismissed.

Non-admissible as evidence

  1. [20]
    In the alternative, should the Commission not be inclined to dismiss, it is the submission of the respondents that consideration be given to refusing to accept the affidavit of the applicant as evidence in this matter.

  1. [21]
    The respondent had reviewed the affidavit of the applicant and considers that the applicant has not made any evidentiary statement as to the respective incidents he alleges created a breach of the statutory provisions of s 272 of the Act.

  1. [22]
    The applicant's affidavit simply reiterates the original assertions of the application, he has then added exhibits with the assertions inferring that there is the evidence of a link between the assertions, the exhibits and the alleged criteria of the legislative provisions of s 272 of the Act. An affidavit is a written alternative to a person attending Court to give oral evidence in the witness box. An affidavit is used to (sic) evidence, or prove, a number of things. They also allow for the examination of evidence presented in the affidavit by the opposing party.

  1. [23]
    It is not for the respondents in this matter to wade through the allegations of the applicant and attempt to reconcile the assertions, the exhibits and the alleged breach of the legislative provisions. It is the contention of the respondents that the applicant has not demonstrated sufficient evidentiary relationship with the allegations and the statements in the affidavit to establish his case. The applicant's affidavit fails to demonstrate how the exhibits and the allegations interconnect which makes any examination of the evidence challenging with the potential of drawing incorrect inferences on what the applicant was attempting to prove.

  1. [24]
    Rule 56[3] identifies the significance of the provision of an affidavit in proceedings by allowing the Commission to exclude the affidavit from being used as evidence if it has not been filed within a particular time. The Directions Order of 29 May 2019 required that the affidavit of the applicant was to be filed on 12 July 2019. The affidavit was not filed on that date.

  1. [25]
    Not only was the affidavit of the applicant late it has not presented evidentiary material sufficient to demonstrate the applicant's case.

The Public Interest

  1. [26]
    The application B/2018/31 was lodged with the Commission in July 2018. The applicant alleges that he has been bullied and seeks a stop bullying order under the provisions of the Act. The allegations refer to matters that occurred in and since 2014 and reference a range of police officers and public servants who work or did work for the QPS who were present, were involved in, or were directly related to the allegations.

  1. [27]
    Since July 2018 the applicant has been probing for information that has expended a significant amount of time, energy and resources of the QPS. The impact of this lengthy and unnecessary delay by having extraordinary amounts of paperwork produced, has had significant adverse impact upon the QPS and senior officers within the region. The matter is also nowhere near completion as it is anticipated that it will be at least another nine months before the matter reaches hearing. In the interim the ability of the QPS within the region to maintain its commitment to the community in policing is being harmed. There has been no evidence presented that establishes the alleged bullying has occurred however the allegations have found their way to the media who then sought release of information from the Commission, information which sits within the region and will continue to adversely affect the management of the region.

  1. [28]
    The applicant's crusade against officers is unnecessary and the extent to which the applicant has probed for information to support his allegations against officers is mischievous, particularly considering the applicant's affidavit which does not disclose evidence substantiating his allegations.

  1. [29]
    The respondent submits that the continuation of this matter due to the already extensive time commitment, the insufficient evidence demonstrated by the applicant and the impact upon the policing within the region is against the public interest and is enough to dismiss the matter under s 541(b) of the Act.

Applicant's written submissions

Background

  1. [30]
    An application for a Stop Bullying Order was filed with the Commission on 6 July 2018 and following a conference held on 18 July 2018, the matter proceeded to arbitration. Subsequently, direction hearings and mentions were held as follows:

  • 16 August 2018;
  • 17 August 2018;
  • 23 October 2018;
  • 27 November 2018;
  • 2 February 2019;
  • 29 March 2019;
  • 29 May 2019; and
  • 30 July 2019.

Respondents' submissions

  1. [31]
    The issues relied upon in this application were:

  • applicant's affidavit had not been provided in compliance with Directions Order (29 May 2019) and was inadmissible;
  • the affidavit had not met with the respondent's expectations; and
  • the public interest.

Clean hands

  1. [32]
    The doctrine of "clean hands" can be applied as a general principle of law and remains one of the maxims for which a person seeking relief must come to court.

Unclean hands

  1. [33]
    There were questions raised about the QPS advocate in the proceedings having acted for certain of the respondents without the proper authorisation although no issue was formally taken by the applicant "as they were technical in nature".

  1. [34]
    On 17 August 2018 the Commission issued directions requiring the respondents to provide a list of documents by 7 September 2018 which were subsequently provided on 10 September 2018. Copies of documents on the list were to be provided by 21 September 2018 and subsequently delivered on 3 and 4 October 2018. These were examples of the respondents failing to comply with directions orders for which there were no adverse consequences for the respondents.

  1. [35]
    Inspector McQueen had refused to provide information which was an integrity issue and on another occasion the QPS advocate at a directions hearing on 30 July 2019 told the Commission " . . . I've requested this to be done by an AC down the coast in relation to a verification of this, who has refused. I've asked again and sort of said could he please provide it to an officer so that I could have it verified in relation to MrTreanor and I have still not heard back - anything from the police service".[4]

  1. [36]
    The respondents had in effect been obstructing the applicant's ability to progress his application and had failed to comply with the Rules in not meeting their undertakings to the Commission.

  1. [37]
    The respondents do not come to the Commission with "clean hands" and it would be unfair to dismiss his application when the respondents had disregarded orders of the Commission with no consequences.

Self-Represented Litigants

  1. [38]
    There ought to be a degree of leniency afforded to self-represented litigants when it comes to the strict application of rules and procedures. In Rajski v Scitec Corporation Pty Ltd, Samuels JA said:

An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[5]

  1. [39]
    In stating that the rules should not be ignored by self-represented litigants, Samuels JA leaned towards a balance of:

  • harm suffered by the other party;
  • reason for the breach; and
  • impact of the breach on the case.

  1. [40]
    In this case the respondents had suffered no harm due to the late submission of the affidavit.

Reason for affidavit delay

  1. [41]
    The applicant underestimated the requirement and volume of material he was required to catalogue to complete his affidavit and also underestimated the personal reaction in having to relive those events in detail. Also at the time there were other factors including:

  • court appearance on 15 July 2019 for Public Nuisance (Language);
  • on annual leave 10 to 15 July 2019 to manage stress;
  • the QPS posted details of the Public Nuisance charge on the "MyPolice" website;
  • on 16 July 2019 he was found to have breached the QPS Social Media Policy and the QPS Standard of Practice; and
  • he took recreational and sick leave from 17 to 23 July 2019.

The applicant conceded he should have notified the Commission of the details for the delay.

Delay caused by the respondents

  1. [42]
    As referenced previously the respondents themselves failed to disclose material in line with directions orders and on 2 November 2018 when he requested disclosure of documentation the QPS advocate responded in part by stating:

While I will endeavour to seek the information I would have thought the opportunity for you to seek this information from within would have been far more expedient for you to do so especially in respect of matters under RTI.

  1. [43]
    Police officers openly refused to produce documents under the direction of a senior officer and it appears that the QPS had not acted to obtain the material.

Attendance for cross-examination

  1. [44]
    The applicant submitted that the Commission had no "contempt of court" provisions however the Public Service Ethics Act 1994 (PSE Act) imposes an ethical duty on police to comply with orders of a Court, Tribunal, Commission or otherwise. A failure (or refusal) to comply with orders of a Commission undermines the integrity and impartiality of the QPS. Section 796 of the Police Powers and Responsibilities Act 2000 (PPR Act) requires police to help tribunals.

  1. [45]
    The Commission would benefit from the appearances of the respondents, the Assistant Commissioner and Ethical Standards Command to explain why they have failed and refused to comply with orders of the Commission.

Structure of affidavit

  1. [46]
    The affidavit provided by the applicant was a statement of fact and does not include opinion, conclusions or submissions. The complaints about the affidavit were unfounded and add no weight to the claim that the matter be dismissed. If the Commission had concerns about deficiencies further directions could be made in lieu of striking out the application.

Public interest

  1. [47]
    The respondent referenced the "extraordinary amounts of paperwork produced" by the applicant most of which was produced without assistance from the respondents, however there were many more documents he could have requested but he had chosen to his own detriment not to seek them.

  1. [48]
    In the matter of Sankey v Whitlam (Sankey)[6] the litigant sought disclosure of file notes, minutes of meetings, letters, telexes and notes which were the claim of privilege based on "Crown privilege". The High Court applied the principles in Conway v Rimmer:

There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[7]

  1. [49]
    Further, in Sankey the point was made by Stephen J:

the proper functioning of the . . . public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of . . . the public service . . .[8]

  1. [50]
    In the matter before the Commission there were allegations of conduct that could be viewed as grossly improper functions of senior officers towards the applicant. The "Stop Bullying" application was necessary to prevent further injury being caused by the respondents.

  1. [51]
    The Honourable Murray Gleeson, AC in "The Purpose of Litigation" wrote:

The Question is: What would society be like if we did not have the courts to enforce our rights, and require others (including governments) to honour their obligations? It requires very little imagination to identify some people or organisations who would be very unpleasant to deal with if there were no practical possibility that they could be taken to court.[9]

  1. [52]
    In this case the public interest would be served by ensuring a powerful and secretive government agency could be put before the Commission to account for its conduct, particularly where the conduct causes injury to an employee.

Conclusion

  1. [53]
    The application in existing proceedings should be dismissed because:

  • acceptable reasons for the delay in submitting the affidavit were given and no harm had been caused to the respondents;
  • the respondents had not claimed relief with "clean hands" and in fact had caused unnecessary and unacceptable delay through the refusal to comply with Orders of the Commission; and
  • his affidavit was completed to a standard required by the Commission and should be accepted as evidence in the proceedings.

Respondents' written submissions in response

  1. [54]
    The applicant relied upon a number of responses to the application to strike out the matter that were:

  • respondents' "unclean hands";
  • applicant's delay and breach of r 45(2) of the Rules;
  • delay caused by the respondents;
  • attendance for cross-examination;
  • structure of affidavit; and
  • public interest.

Equitable principle of "Clean Hands"

  1. [55]
    The applicant had not demonstrated actions commensurate with the principle. The technical issues associated with the respondents' representation had no turpitude or illegality that would invoke the equitable principle of clean hands. The respondents complied to the best of their abilities within the legal framework in matters associated with the substantive matter.

  1. [56]
    The applicant conveniently omitted details of information, documentation and requests under disclosure that occurred between the parties from 21 September 2018 and early October 2018. The applicant had been guilty of the same types of breach which he now alleges against the respondents.

  1. [57]
    The initial application under B/2018/31 provided a list of allegations by the applicant against the QPS and a number of senior officers which under normal legal principles are the pleadings of the applicant and subsequently "disclosure" relates to those pleadings. All material relevant to the allegations in the application under the QPS control had been provided and there had been no actions by the respondent that would warrant the applicant seeking additional disclosure material.

  1. [58]
    The respondents are located on the South Coast and that made contact with them at times problematic due to work and shift arrangements. The level of documentation sought by the applicant had required a significant amount of time and resources to source and in some instances amounted to three and four thousand pages of information that had to be reviewed. The claim by the applicant that "he has sought most of the required documents himself" was total fabrication and a further claim that the respondents "have failed to comply with every directions order for disclosure" was said to be disingenuous. In fact, he could not prepare his affidavit without the disclosure material having been made available. In a mention of the matter held on 29 May 2019 the applicant stated:

Well, I'll give you an undertaking, and I'll comply with that undertaking. That I will give you - I will provide an affidavit to my friend for the incidents where I have all the material that's been disclosed.[10]

  1. [59]
    At a mention held on 31 July 2019 the applicant nominated only four matters of disclosure being sought that had not been disclosed. The applicant was also mischievous regarding the Solicitor Conduct Rules in that the advocate for the respondent was acting in the capacity of an employee of the State of Queensland and was not in the mode of being "in the course of legal practice" despite being a solicitor.

  1. [60]
    The applicant had made no attempt to contact the Commission or the respondents in this matter during the period of the two weeks to advise he would be late with his affidavit.

Attendance for cross-examination

  1. [61]
    Whilst the applicant referenced the PSE Act and the PPR Act as statutes creating obligations on officers working in the QPS to comply with court orders, any obligation irrespective of an interpretation of the respective legislative provisions, would have to be tempered with the law on self-incrimination, privilege and in no small way the very character of the circumstances and the nature of the orders from the court.

  1. [62]
    None of the officers had failed or refused to comply with Commission orders and in respect of the items awaiting disclosure, these were matters from the ESU which were being reviewed by the QPS Legal Unit as to privilege and relevance to the allegations of the applicant's initial application.

  1. [63]
    It was noteworthy that the applicant explains his delay through personal issues but does not understand or accept legitimate delays when he expects information to be provided to him. The four items not disclosed were not detrimental to the applicant's capacity to present his affidavit outlining his case with the option to provide an amended affidavit.

  1. [64]
    The nominated parties were not all police officers and as such not subject to the PPR Act.

  1. [65]
    The strike out application relates to:

  • length of time this matter had progressed;
  • detrimental affect the action of the applicant was having upon the region of the QPS; and
  • the management authority within the region were also suffering a detriment.

Structure of the Affidavit

  1. [66]
    The general principles associated with an affidavit or pleadings is that it may be struck out if it is vague or too general so as to embarrass an opposing party who does not know what is alleged against them. A court may strike out a pleading that discloses no reasonable cause of action.[11]

  1. [67]
    In this case the applicant's affidavit is littered with frivolous and vexatious allegations that failed to formulate a reasonable case in support of the allegations and the legislative criteria[12] that he is endeavouring to prove.

  1. [68]
    In Callide Power Management Pty Ltd v Callide Coalfields, Jackson J on the court's exercise of discretion said:

Where the problem is one inadequate or inaccurate pleading which has a tendency to prejudice or delay a fair trial, or the pleading contains unnecessary or scandalous allegations or frivolous or vexatious allegations, . . . there tends to be a general discretion.[13]

  1. [69]
    The applicant indicated that in examination his opinion can be sought on the matters he presents in evidence which is an issue for the respondents in that the material does not establish sufficient nexus that a "reasonable cause of action is disclosed". The applicant's opinion as to whether he was bullied will always be subjective while information contained in an affidavit must be objective to ensure that the pleadings/affidavit has legitimate value to present a reasonable cause.

Public interest

  1. [70]
    The applicant states that if not for amendments to the Act which came into effect in 2017, he would not have had a course of action against his employer and officers of the QPS who had allegedly bullied and harassed him to the extent that he suffered a psychological injury.

  1. [71]
    It was inconceivable that an employee of the State Government could have been bullied and harassed for a considerable time and not sought assistance within the QPS through the Health Safety and Management Unit and Regional Peer Support Officers. It was further inconceivable that he had not:

  • sought assistance through legal avenues available to him;
  • workers' compensation; and
  • health and safety legislation in Queensland for bullying in the workplace.

  1. [72]
    It was implausible that a Senior Constable who had undertaken legal qualifications, completed within the last twelve months would not have known of the avenues available to him to have the alleged bullying matters ceased.

  1. [73]
    The issue that arises is that many years after the alleged events the applicant has now decided to take this action, nominating senior officers in the QPS, passing information on to the media and creating an unsettling environment within all ranks of the QPS in the Gold Coast Region.

  1. [74]
    The impact of the application upon the QPS has included:

  • generation of extensive paperwork supplied to the applicant; and
  • significant level of work for the QPS that has impacted on normal workloads in the region.

  1. [75]
    The respondents had not made counter allegations against the applicant and provided material when and where they could in the timeframe required by the applicant.

  1. [76]
    The criteria for establishing a matter as bullying under the Act is that the behaviour against a person needs to be repeated and unreasonable.[14] In Amie Mac v Bank of Queensland Ltd & Others[15] Hatcher VP provides examples of what unreasonable behaviour would be classed as bullying. The list is extensive and includes:

  • intimidation;
  • coercion;
  • threats;
  • shouting;
  • sarcasm;
  • pranks;
  • verbal abuse;
  • belittling; and
  • bad faith.

  1. [77]
    The applicant had over twelve months to gather material and prepare an affidavit demonstrating the alleged bullying activity which had occurred over a five-year period and by five police officers.

  1. [78]
    The allegations by the applicant in his application were specific however the documentation requested is not commensurate with the allegations and the applicant may have been on a "fishing expedition" for information that doesn't exist to assist in his case.

  1. [79]
    The respondents contend that:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.[16]

  1. [80]
    The matters subject of consideration by the Commission were:

  • length of time that this matter has been before the Commission;
  • continued deleterious affect the matter was having upon the QPS and management within the region; and
  • whether a reasonable cause of action was disclosed.

  1. [81]
    The applicant as part of his process had incorporated the news media into his issues thereby extending the matter beyond the internal machinations of the QPS and into the broader community. This type of action was enticing that element within the community to respond to the allegations as if they were proven facts and had become problematic for the QPS in being able to manage and provide policing in the region.

  1. [82]
    The applicant had not provided a reasonable cause of action and the evidence would suggest that the case is frivolous and irrespective of four pieces of undisclosed material yet to be provided, the majority of disclosure has occurred. The action is defective and should be dismissed. The ongoing prosecution of the matter by the applicant is against the public interest.

Hearing

  1. [83]
    At a hearing on 20 September 2019, the applicant in oral submissions addressed a number of points raised by the respondent in their written response that included:

  • no counter allegations made by the respondents;
  • claims that contact with officers on the South Coast had been problematic due to work commitments;
  • massive workload generated for the Gold Coast Region in providing disclosure to the applicant;
  • workers' compensation that had been ongoing for two years; and
  • attempts to address issues through complaints made to ESC and CCC.

  1. [84]
    The applicant acknowledged that a number of affidavits already filed on his behalf in respect of the substantive application were to be relied upon by him to prosecute the application.

Conclusion

Background

  1. [85]
    An application was filed by the applicant with the Industrial Registry on 6 July 2018 pursuant to s 273 of the Act:

273Application for a commission order to stop bullying

An employee who reasonably believes the employee had been bullied in the workplace may apply to the commission for an order under section 275.

  1. [86]
    The application referenced 25 alleged incidents of bullying involving senior officers of the QPS which were later reduced to 12 alleged incidents. Additionally the number of individual respondents were reduced to four. Between the lodgement of the application and 30 July 2019 there had been some nine occasions when the parties appeared before the Commission for the purposes of the conference and a number of mentions.

  1. [87]
    A review of transcript from the mentions reveals that on numerous occasions there were issues regarding the non-production of documents being sought by the applicant which occupied the time of the Commission, particularly as the QPS were not for various and legitimate reasons able to produce the documentation in a timely fashion, with the effect of undoubtedly prolonging the process.

  1. [88]
    At a mention on 29 May 2019 the applicant gave an undertaking that he would "provide an affidavit to my friend for the incidents where I have all the material that's been disclosed". A further Directions Order was issued on 29 May 2019 that required:

. . . the Applicant supply to the Respondent, and file in the Industrial Registry a statement of evidence for each witness to be called (including the Applicant) which have not yet been provided and which are to be relied upon in the hearing, by 4.00 pm on Friday 12 July 2019.

  1. [89]
    The applicant on 30 July 2019 filed a sworn affidavit with the Industrial Registry which was 18 days beyond the date stipulated in the relevant Directions Order.

  1. [90]
    The respondent filed an Application in Existing Proceedings on 29 July 2019 seeking that the substantive matter B/2018/31 be struck out under s 541 of the Act:

541Decisions generally

The court or commission may, in an industrial cause do any of the following -

  1. make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  2. dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
  1. the cause is trivial; or
  2. further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

Grounds to strike out

Non-compliance with Directions Order

  1. [91]
    The basis of the argument presented by the respondent was that the applicant's affidavit had been filed "over two weeks late" without reasonable cause and further that the applicant had failed to notify the Commission or the respondent.

  1. [92]
    The respondent relied also upon Rule 45 of the Rules:

45Failure to attend or to comply with directions order

  1. This rule applies if -
  1. a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  2. the party fails to attend the hearing or conference.

  1. This rule also applies if -
  1. a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  2. the party fails to comply with the order.

  1. The court, commission or registrar may -
  1. dismiss the proceeding; or
  2. make a further directions order; or
  3. make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  4. make orders under paragraphs(b) and (c).

  1. [93]
    The applicant conceded in the first instance that the Commission and the respondent should have been advised of the delay and secondly there were a number of reasons advanced to explain the delay that included:

  • under estimated the requirement of preparing the affidavit due to the volume of the material and the personal reaction of having to relive the events;
  • had taken annual leave between 10 and 15 July 2019 to manage stress; and
  • delay caused by the respondent failing to disclose material in accordance with directions orders issued previously.

  1. [94]
    The applicant submitted that a degree of leniency ought to have been afforded to him for the fact that he is a self-represented litigant.

  1. [95]
    The delay of a little more than two weeks to provide the affidavit beyond the due date of 12 July 2019 was not necessarily excessive in circumstances where the application had been on foot for a period of time in excess of twelve months and a prospective hearing date was likely to be months away from being set.

  1. [96]
    In any event the applicant provided to the Commission an explanation for not having complied with the "letter" of the Further Directions Order (dated 29 May 2019) that was in my view both credible and satisfactory. Also, I am unable to conclude that the respondent suffered a prejudice of any standing to enliven the use of the discretionary power. In Witten v Lombard Australia Ltd Walsh JA stated:

Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.[17]

  1. [97]
    I do not accept that failure of the applicant to file his affidavit some two weeks beyond 12 July 2019 was sufficient in its own right to warrant the granting of the strike out application for the substantive matter and do so in acknowledgement of the commentary in Quinlan v Rothwell & Anor attributed to by Thomas JA:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[18]

  1. [98]
    Further on the reliance of the appellant that his status as a self-represented litigant afforded him a degree of leniency in the proceedings, I note the comments of O'Connor VP in Workers' Compensation Regulator v Bero:

I am also concerned that Mr Bero fails to appreciate the seriousness of his history of noncompliance as he told me "I’m not worried about - that’s not my point. I don’t care because I’m not a lawyer. "http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QIRC/2019/36.html?context=1;query=workers%20compensation%20regulator%20v%20bero%20;mask_path= - fn12 Mr Bero appears to be under a misunderstanding that as a self-represent litigant he is entitled to an unlimited amount of leniency from this Commission. A lack of legal representation is as the authorities have suggested a "misfortune, not a privilege".[19]

Non-admissible as evidence

  1. [99]
    The respondent adopted the position, in the alternative, that if the Commission was to refuse the striking out application based on the failure of the applicant to comply with the Further Directions Order of 29 May 2019, then consideration should be given to refusing to accept that affidavit in evidence for reasons that included:

  • affidavit made no evidentiary statement as to the respective incidents he alleges created a breach of s 272 of the Act; and
  • affidavit failed to demonstrate sufficient evidentiary relationship between the allegations and content of the affidavit.

  1. [100]
    Effectively the applicant had not presented sufficient evidentiary material to demonstrate his case in that it was littered with frivolous and vexatious allegations that had failed to formulate a reasonable case in support of the allegations and the legislative criteria that had to be satisfied. In Callide Power Management Pty LtdvCallide Coalfields the following extraction had been relief upon by the respondent:

Where the problem is one inadequate or inaccurate pleading which has a tendency to prejudice or delay a fair trial, or the pleading contains unnecessary or scandalous allegations or frivolous or vexatious allegations, . . . there tends to be a general discretion.[20]

  1. [101]
    The applicant rejected the complaints levelled against his affidavit suggesting they were unfounded and stated that his affidavit was a statement of fact that did not include opinion, conclusions or submissions. If the Commission had concerns that the affidavit was deficient then further directions could be made rather than striking out the application.

  1. [102]
    In consideration of whether the appellant's affidavit ought to be struck out, I am conscious that the application subject of this decision had been made to strike out the substantive matter B/2018/31 and had not been amended for the purposes of striking out a single affidavit that forms part of the proceedings.

  1. [103]
    In this case the relevance of the applicant's affidavit is whether prima facie it sufficiently establishes that the allegations of bullying behaviour made against senior officers of the QPS have some prospects of a positive finding in the substantive proceedings.

  1. [104]
    The Commission had the opportunity to examine the affidavit of the applicant not in isolation, but in circumstances where the applicant provided pleadings as part of the substantive application on 6 July 2018, comprising 33 pages, not all of which are still relevant but nevertheless some did remain relevant. Additionally, there were ten affidavits from police officers, former police officers and administration officers filed by the applicant in support of the substantive application.

  1. [105]
    The position advanced by the respondent regarding the affidavit having failed to formulate a reasonable case in support of the allegations is not without some attraction, however I am inclined to rule against the respondent on the basis of the general principle enunciated in Burton v The Shire of Bairnsdale where O'Connor J stated:

Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights, and summarily disposing of an action as frivolous and vexatious in point of law, will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.[21]

  1. [106]
    Whilst not expressing a view on the prospects or otherwise of the applicant in the substantive application, I can only indicate that I'm not satisfied that his application "is so obviously untenable that it cannot possibly succeed".

Public Interest

  1. [107]
    The respondent in pursuing reasons relating to the public interest relied upon reasoning that included:

  • impact of lengthy and unnecessary delays had upon the QPS;
  • no evidence presented that established the alleged bullying;
  • information released to the media had and continued to have an adverse effect on the management of the Gold Coast region; and
  • the public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.[22]

  1. [108]
    The applicant argued that the public interest would be served by ensuring a powerful and secretive government agency could be put before the Commission to account for their conduct and in doing so relied upon comments from the Honourable Murray Gleeson, AC in "The Purpose of Litigation":

The Question is: What would society be like if we did not have the courts to enforce our rights, and require others (including governments) to honour their obligations? It requires very little imagination to identify some people or organisations who would be very unpleasant to deal with if there were no practical possibility that they could be taken to court.[23]

  1. [109]
    The area of public interest is often difficult for a party to argue and advance which is supported by the minority judgement of Deane J in the High Court of Australia in Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia where he stated:

In the rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise cf. per Higgins J., Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No.1) [1920] HCA 40; (1920) 28 CLR 278, at p 281.

Justice Deane went on to say:

Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary considerations of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice: Social and Historical Context" in Cappelletti and Weisner (eds.) Access to Justice, vol.II, book 1 (1978) pp.5ff.; Raz, The Authority of Law, (1979), at p.217).

In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf. the comments of Higgins J. in Australian Builders' Labourers' Federation v. Archer (1913) 7 CAR 210, at p 217).[24]

  1. [110]
    I am not convinced that the respondent had established grounds in circumstances where it was "so special or extraordinary that the public interest requires that it (the Commission) refrain from the ordinary exercise of its jurisdiction". In respect of the respondent's concerns regarding the media's conduct there are of course avenues available to an aggrieved party in those circumstances to address inaccurate reporting of events, if in fact that had occurred, which doesn't extinguish an applicant's right to progress an application of this nature. Therefore, in all circumstances I am not satisfied that grounds exist upon which the substantive application should be struck out in the public interest.

  1. [111]
    Accordingly, the application to strike out matter B/2018/31 is dismissed.

Footnotes

[1] T6-9, L1-3.

[2] Emmett, 'Practical Litigation in the Federal Court of Australia: Affidavits' (2000) 20 Australian Bar Review 28, 28; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 635 [175].

[3] Industrial Relations (Tribunal) Rules 2011.

[4] T7-12, L11-15.

[5] Rajski v Scitec Corporation Pty Ltd, unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16 July 1986.

[6] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.

[7] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 citing Conway v Rimmer (1968) AC 910, 940.

[8] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.

[9] (2009) 83 ALJ 601, 602-8.

[10] T6-9, L1-3.

[11] Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 2011.

[12] Industrial Relations Act 2016, s 272.

[13] Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205, [17]-[32].

[14] Industrial Relations Act 2016, s 272.

[15] Amie Mac v Bank of Queensland Ltd & Others [2015] FWC 774, [99].

[16] Director of Public Prosecutions v Smith [1991] 1 VR 63.

[17] Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405, 412.

[18] Quinlan v Rothwell & Anor [2001] QCA 176, [29].

[19] Workers' Compensation Regulator v Bero [2019] QIRC 36, [20].

[20] Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205, [17]-[32].

[21] Burton v The Shire of Bairnsdale (1908) "The Argus" Law Reports, Vol. XIV, 529.

[22] Director of Public Prosecutions v Smith [1991] 1 VR 63.

[23] (2009) 83 ALJ 601, 602-8.

[24] Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 61 ALJR 393.

Close

Editorial Notes

  • Published Case Name:

    James Treanor v State of Queensland (Queensland Police Service), Scott Burness, Troy Lehmann, Scott MacQueen, Simon Chase and Paul James

  • Shortened Case Name:

    Treanor v State of Queensland

  • MNC:

    [2019] QIRC 146

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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