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Doorley v State of Queensland (Department of Premier and Cabinet)

 

[2019] QIRC 205

INDUSTRIAL REGISTRAR

CITATION:

Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 205

PARTY: 

Doorley, Neil Robert

(Applicant)

v

State of Queensland (Department of Premier and Cabinet)

(Respondent)

CASE NO:

GP/2018/33

PROCEEDING:

General Protections - Application for Amendment Application

DELIVERED ON:

24 December 2019

HEARING DATES:

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's submissions 5 September 2019

Applicant's submissions 3 October 2019

Respondent's submissions in reply 28 October 2019

CATCHWORDS:

INDUSTRIAL LAW - GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL - application for amended application - proposed amendments not allowed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 314 and s 341

Industrial Relations (Tribunals) Rules 2011 (Qld), r 19, r 22, r 23 and r 226

Work Health and Safety Act 2011

O'Sullivan v Farrer [1989] 168 CLR 210

CASES:

Lejmanoski v The University of Western Australia (No 2) [2014] FCCA 1179

Knowles v Roberts (1888) 38 Ch D 263

Coco v Ord Minnett Ltd [2012] QSC 324

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

Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875

Haines v Bendall (1991) 172 CLR 60

Kernal Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171

Allan v State of Queensland [2018] QIRC 36

Reasons for Decision

Introduction

  1. [1]
    Neil Doorley ('the Applicant') was employed by the State of Queensland (Department of Premier and Cabinet) ('the Respondent') on or about 30 September 2015 as a Senior Media Advisor. The Applicant was dismissed on 27 November 2018.
  1. [2]
    On 21 December 2018, the Applicant made an application claiming that his dismissal was in contravention of ch 8, pt 1 of the Industrial Relations Act 2016 ('the Act'). This general protections application was made three days out of time.
  1. [3]
    On 29 March 2019, an application in existing proceedings was filed requesting an extension of time and leave to proceed with the general protections application.  That application was opposed by the Respondent. On 11 June 2019, Industrial Commissioner Black granted an extension of time.
  1. [4]
    On 5 July 2019, the Applicant filed an amended general protections application ('the amended application'). In the amended application, the Applicant does not distinguish the amendments from the original text as required by r 19 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules').
  1. [5]
    On 11 July 2019, the Respondent filed a response and counter claim objecting to part of the amended application. The reasons underlying the Respondent's objections to the impugned paragraphs were that they were scandalous and irrelevant.
  1. [6]
    The parties exchanged written submissions in accordance with Directions Orders issued on 15 August 2019 by Vice President O'Connor.  No hearing was conducted.  Pursuant to r 23, I have discretion to allow or disallow the amendments sought by the Applicant.
  1. [7]
    The question for my determination is whether I should exercise my discretion to allow or disallow those paragraphs in the amended application objected to by the Respondent, namely:
  • paragraphs 5 to 10 and 14;
  • paragraph 15;
  • paragraphs 18, 19, 23 and 24;
  • paragraph 37 (a) and (b);
  • paragraphs 61 to 66, 69 and 70.
  1. [8]
    There is a preliminary issue. That is whether I should allow or disallow the Respondent's objections to paragraphs 61 to 66, 69 and 70 which were not included in its filed response.

The additional objections of paragraphs 61 to 66, 69 and 70 not included in the Respondent's filed response

  1. [9]
    Rule 23 provides:

23 Determination of amended application

  1. (1)
    If a party objects to all or part of an amended application, the court, commission or registrar may, after hearing the objecting party, allow or disallow the proposed amendment.
  1. (2)
    The decision must be made by -

  (a) if the hearing of the application has not started - the registrar; or

  (b) if the hearing of the application has started-the court, commissioner or    registrar hearing the application.

  1. (3)
    The court, commission or registrar may make the decision on the terms the court, commission or registrar considers appropriate.
  1. [10]
    The Applicant objected to the additional objections to paragraphs 61 to 66, 69 and 70 as submitted by the Respondent in their outline of submissions in support of its objections. The Applicant contended that there is no power to disallow those paragraphs since they were not included in the filed response pursuant to r 22 and, as such, the matters are not properly before me and cannot be considered.
  1. [11]
    Both parties concede that r 23 is cast in very broad terms.  As the High Court held in O'Sullivan v Farrer:[1]

Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made. 

  1. [12]
    I accept, as submitted by the Applicant, that the power in r 23 may only be exercised where there is an objection pursuant to r 22.  However, consideration must also be given to r 226 which provides:

226 Effect of failure to comply with rules

  1. (1)
    A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity
  1. (2)
    If there has been a failure to comply with these rules, the court, commission, a magistrate or the registrar may -
  1. (a)
    set aside all or part of a proceeding; or
  1. (b)
    set aside a step taken or order made in the proceeding; or
  1. (c)
    declare a document or step taken to be ineffectual; or
  1. (d)
    declare a document or step taken to be effectual; or
  1. (e)
    make another order that could be made under these rules; or
  1. (f)
    make another order dealing with the proceeding generally as the court, commission, magistrates or registrar considers appropriate.
  1. [13]
    I am not persuaded by the Applicant's argument to not consider the Respondent's further objections relating to paragraphs 61 to 66, 69 and 70 because they were not included in the response filed pursuant to r 22.  The omission by the Respondent is an irregularity.
  1. [14]
    Pursuant to s 539(e) of the Act, I have discretion to waive an irregularity in the proceedings, whether substantive or formal.  Both parties have made submissions regarding the Respondent's objections to these paragraphs. For this reason, it is appropriate that I consider the Respondent's objections to these paragraphs.

The approach to be taken in the exercise of my discretion to allow or disallow parts of the proposed amendments

  1. [15]
    The Applicant submitted that:

…the discretionary power to strike out portions of an Amended Application should be applied sparingly and only in a clear case where it is plain and obvious that impugned portions of the pleadings are unarguable … the Registrar should not approach amendments to Applications with a greater degree of technicality where such requirements are not necessary in respect to filing Applications pursuant to rule 10.

  1. [16]
    The Respondent objected to that submission on the basis that there is nothing in the language of r 23 which limits the power to disallow proposed amendments to a '… clear case where it is plain and obvious that impugned portion … are unarguable'.  The Respondent submits the:

…line of authorities cited in support[2] of that proposition were inapplicable in this case because it relates to striking out a pleading on the basis that it discloses no reasonable cause of action, which derives from the principles applicable to summary judgement/dismissal of proceedings…

  1. [17]
    The Respondent further submits that:

… the discretion to disallow parts of an application or strike out parts of a pleading, and the appropriate level of satisfaction required, varies according to the basis on which the disallowance or strike-out is sought.[3]

  1. [18]
    Both parties agree that the discretion must be exercised judicially.
  1. [19]
    Pursuant to r 6, the purpose of the Rules is to '…provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at the minimum of expense.'
  1. [20]
    There are no mandated considerations in the Rules in respect of determining whether an amended application should be allowed or disallowed. 
  1. [21]
    Rule 23 specifically relates to a determination of an objection to an amended application which is the subject of this decision. That rule relevantly states that decision may be on the terms the I consider appropriate.  I do not accept the Applicant's submissions that the striking out of the objectional pleadings should be applied sparingly and only in a clear case and that it must be plain and obvious that impugned portions of the pleadings are unarguable before they will be struck out.  I agree however with their submission that material facts '… must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.' [4]  However, as occurred in Knowles v Roberts,[5] irrelevant and unnecessary allegations were struck out as tending to embarrass the defendant because they would tender further issues that did not need to be tried.
  1. [22]
    The Respondent provided two reasons underlying their objections to the impugned paragraphs. They were that they were scandalous and irrelevant.  They further submitted that '…the discretion to disallow parts of an application or strike out parts of a pleading, and the appropriate level of satisfaction required, varies according to the basis on which the disallowance or strike-out is sought.'  I agree with the line of authority as cited in the Respondent's submissions in Coco v Ord Minnett Ltd[6] where Jackson J stated:

[I]f the court determines that a statement of claim discloses no reasonable cause of action it is determining that the facts pleaded are not capable in law of giving rise to the relief sought. ... On the other hand, where the problem is one of 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, or is otherwise an abuse of the process of the court, there tends to be a more general discretion.

  1. [23]
    Given the objections are based on irrelevance and scandal, I will utilise my general discretion in reaching my decision for each of the impugned paragraphs.
  1. [24]
    The amended application did not distinguish the text added or deleted, however the amendments can be broadly categorised as:
  • a background and timeline to the Applicant's employment (paragraphs 5 to 10, 14, 15, 18, 19, 23 to 24 and, 37(a) and (b)); and
  • an allegation of a separate claim of workplace right under the Work Health and Safety Act 2011 (Qld) (paragraphs 61 to 66, 69 and 70).

Paragraphs 5 to 10 and 14

  1. [25]
    Paragraphs 5 to 10 refer to conversations between the Applicant and various people prior to the Applicant's employment.
  1. [26]
    Paragraph 14 states that '…the Applicant in accepting the offer, took a significant pay cut, but he was interested in working for government and having a healthier work-life balance to spend time with his family.'
  1. [27]
    The Applicant asserts that paragraphs 5 to 10 and 14 demonstrate that the Applicant was not making false, baseless, unreasonable or contrived accusations when making the complaints set out in the amended application.  The Applicant further submits that paragraphs 5 to 10 are relevant by way of background, however concedes that these paragraphs are only relevant to explain the timeline of the Applicant's employment and that paragraph 14 will be relevant when the Commission comes to consider the monetary order in the event the Applicant is successful in his claim.
  1. [28]
    The Respondent objected to:
  • paragraphs 5 to 10 on the basis that they are irrelevant and contain allegations of events pre-dating the Applicant's employment; and
  • paragraph 14 on the basis it is irrelevant to the quantum of compensation which may be ordered under s 314 of the Act. 
  1. [29]
    Further to this, the Respondent submits that these paragraphs are not relevant to the alleged exercise of workplace rights, as pleaded at paragraphs 60 to 70 and alleged adverse action in respect of the alleged exercise of workplace rights, as pleaded at paragraphs 72 to 85.
  1. [30]
    I agree with the Respondent's submissions these paragraphs do not have any relevance to the alleged exercise of workplace rights and alleged adverse action in the exercise of a workplace right; and that disallowing these paragraphs would not impact on the Applicant's ability to prove the contraventions alleged.
  1. [31]
    With regard to paragraph 14 and its inclusion, as a majority of the High Court stated in Sagona v R & C Piccoli Investments Pty Ltd & Ors[7] citing Haines v Bendall:[8]

The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort has not been committed.

  1. [32]
    The inclusion of these paragraphs would waste time and incur unnecessary costs and impact on the just and expeditious disposition of these proceedings.
  1. [33]
    Paragraphs 5 to 10 and 14 are not allowed.

Paragraph 15

  1. [34]
    Paragraph 15 alleges that there were several leaks to the media from the Office of the Minister, by the Minister, for which the Applicant would often get blamed by senior staff.  These leaks are broadly particularised.  
  1. [35]
    The Respondent asserts that '… this serious allegation is made without descending to pleading the alleged facts in support of the allegation and that the allegation is scandalous and should be struck out.' 
  1. [36]
    The Respondent then submits that:

…by the making of the first complaint as alleged in paragraph 17, the allegations levelled against the Minister in paragraph 15 that, as a matter of fact, the Minister personally leaked information to the media, are not necessary for the Applicant to establish that he complained about those matters and which appear to be made for the purpose of abusing or prejudicing the Respondent by making serious allegations calculated to be damaging to the Minister in his public office.

  1. [37]
    The Respondent further submits that the particulars relating to paragraph 15 are not sufficiently particularised because they do not state when or how the leaks are alleged to have been made by the Minister and that they are so vague that they can not be said to be relevant to the material facts to be proved. 
  1. [38]
    The Applicant asserts that paragraph 15 is relevant given the alleged leaks are relied upon in paragraph 16 of the amended application to which objection is not taken and that it establishes that complaint one at paragraph 17 of the amended application is not a "…false, baseless, unreasonable or contrived accusations".  The Applicant further submits that if the Respondent is concerned about the lack of particulars of 15 in the amended application, this is a basis for requesting particulars, not striking out the paragraph.
  1. [39]
    Paragraph 15 does not allege adverse action, the existence or exercise of a workplace right, or the taking of adverse action for a prohibited reason.  Paragraphs 16 and 17 have not been objected to by the Respondent and these paragraphs provide the material facts that are being relied upon as exercise of a workplace right.
  1. [40]
    I do not see that the inclusion of paragraph 15 places anymore relevance to the exercise of a workplace right or the taking of adverse action for a prohibited reason. 
  1. [41]
    The inclusion of this paragraph is unnecessary and would waste time and incur unnecessary costs and impact on the just and expeditious disposition of these proceedings.
  1. [42]
    Paragraph 15 is not allowed.

Paragraphs 18, 19, 23 and 24

  1. [43]
    Paragraph 18 and 19 relate to conversations regarding campaigning for the Minister if an election was called.
  1. [44]
    Paragraph 23 and 24 refers to a meeting where the Applicant met with a Mr Anderson and a Ms Tibbetts regarding the current media protocol.
  1. [45]
    The Respondent submitted that these paragraphs are not necessary to prove any element or any of the alleged contraventions because none of the paragraphs allege adverse action, the existence or exercise of a workplace right, or the taking of adverse actin for a prohibited reason. 
  1. [46]
    The Applicant conceded that paragraphs 18, 19, 23, and 24 are only relevant to explain the timeline of the Applicant's employment but submitted that they demonstrate that the Applicant was not making false, baseless, unreasonable or contrived accusations when making the complaints.
  1. [47]
    The inclusion of these paragraphs does not provide any relevance to the allegation of an adverse action, the existence or exercise of a workplace right, or the taking of adverse action for a prohibited reason.
  1. [48]
    The inclusion of these paragraphs would waste time and incur unnecessary costs and impact on the just and expeditious disposition of these proceedings.
  1. [49]
    Paragraphs 18, 19, 23 and 24 are not allowed.

Paragraph 37(a) and (b)

  1. [50]
    Paragraphs 37(a) and (b) refers to a meeting where the Applicant informed a Mr Barbargallo that:
  1. (a)
    he had been transferred to Minister Enoch's office by the Premier's Deputy Chief of Staff Kirby Anderson in March 2017 and that Mr Anderson had explained to the Applicant that Minister Enoch was “a lazy Minister" and that Minister Enoch's office was grossly underperforming in a media sense when it came to “selling" the Advance Queensland initiative; and
  1. (b)
    he had requested to leave Minister Enoch's office in November 2017 because of ongoing conflict.
  1. [51]
    The Respondent took objection to these paragraphs on the basis that the allegations were not relevant to the alleged exercise of workplace rights and alleged adverse action in respect of the alleged exercise of workplace rights as referred to in paragraphs 72 to 85 in the amended application.
  1. [52]
    The Applicant asserts that paragraphs 37(a) and (b) are relevant to explain the difficulties referred to in paragraph 37(c) in which the Applicant alleges he '…had significant difficulties in Minister Enoch's office and provided examples (the "Fifth Complaint").' 
  1. [53]
    Paragraph 37(a) and (b) do not provide any specificity of the significant difficulties allegedly faced by the Applicant that are the subject of the Fifth Complaint. The general proposition in respect of pleadings is that material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.[9]  
  1. [54]
    Paragraph 37(a) is an opinion expressed by Mr Anderson which does not provide the specificity regarding the 'significant issues' experienced by the Applicant.  Paragraph 37(b) too does not provide any additional information that would explain the significant issues to advance the Fifth Complaint.
  1. [55]
    I do not accept that paragraphs 37(a) and (b) provide any relevance in explaining the significant difficulties referred to in paragraph 37(c).
  1. [56]
    The inclusion of these paragraphs would waste time and incur unnecessary costs and impact on the just and expeditious disposition of these proceedings.
  1. [57]
    Paragraphs 37(a) and (b) are not allowed.

Paragraphs 61 to 66, 69 and 70

  1. [58]
    Paragraphs 61 to 66, 69 and 70 of the amended application are asserted as follows:
  1. The Applicant was entitled to be provided with a workplace by the Respondent in accordance with section 19 of the Work Health and Safety Act 2011 (Qld) which is an entitlement of a benefit of an industrial law.
  1. The Work Health and Safety Act 2011 (Qld) is an industrial law within the meaning of the Act, being a law of a state that regulates the relationships between employers and employees.

Particulars

Schedule 5 of the Act

  1. In the premises, the Applicant had a workplace right with respect to the benefit referred to in [61] above, being a benefit to which the Applicant was entitled under an industrial law, within the meaning of section 284 (1)(a) of the Act.
  1. The Applicant had a role and/or responsibility to take reasonable care for his own health and safety.
  1. The role and/or responsibility referred to in [64] above is a role or responsibility of the Applicant under section 28 of the Work Health and Safety Act 2011 (Qld).
  1. In the premises, the Applicant had a workplace right with respect to his role and/or responsibility referred to in [65] being a role or responsibility under an industrial law, within the meaning of section 284(1)(a) of the Act.
  1. The Applicant exercised the workplace rights pleaded in [61]-[63] when making the Second, Third and Fifth Complaints for the purposes of s 285(1)(a)(ii) of the Act.

  1. The Applicant was entitled to the benefit of, or has a role or responsibility under an industrial law pleaded in [64]-[66] (above) when making the Second, Third and Fifth Complaints for the purposes of s 285(1)(a)(i) and (ii) of the Act.
  1. [59]
    The Respondent submits:
  1. (a)
    paragraphs 61 to 66, 69 and 70 relate to a workplace right under the Work Health and Safety Act 2011 (Qld); and
  1. (b)
    if these complaints were complaints which the Applicant was able to make in relation to his employment, it is irrelevant whether, in making those complaints, the Applicant was also ''…entitled to the benefit of, or ha[d] a role or responsibility under an industrial law."[10] 
  1. [60]
    The Respondent further submits that the Applicant does not assert that the adverse actions identified at paragraphs 72 to 85, nor the orders sought at paragraphs 87 to 89, relate to a benefit under an industrial law including a benefit under the Work Health and Safety Act 2011 (Qld), but rather a complaint made.
  1. [61]
    Industrial Commissioner Black in his decision of Allan v State of Queensland[11] stated:

[20] I accept that there is a prima facie case that rights pertaining to workplace health and safety matters are excluded from s 284 of the IR Act.  The case to this effect turns primarily on the difference in expression of s 284 in the IR Act and the equivalent section (s 341) in the Fair Work Act 2009 (FW Act).  Firstly the IR Act refers to industrial law and industrial instrument while the FW Act refers to “workplace law" and “workplace instrument".  Secondly, s 12 of the FW Act in defines “workplace law" to include any other law that regulates the relationships between employers and employees “(including by dealing with occupational health and safety matter)".  In contrast, “industrial law" in the IR Act is defined to include “another Act regulating the relationship between employers and employees".  In short, despite an intention for the IR Act provisions to reflect the FW Act provisions, the reference to safety matters is excluded.

[21] The Respondent took the exclusion to be significant in circumstances where the adverse action provisions of the IR Act were modelled on those contained in the FW Act.  Therefore, the omission of the reference to health and safety matters from s 284 of the IR Act demonstrates the legislature's intention to specifically exclude laws dealing with occupational health and safety matter from being deemed to be “industrial laws" under the IR Act.

[22] The inclusion in Part 6 of the Work Health and Safety Act 2011 of extensive provisions dealing with discriminatory, coercive and misleading conduct which go beyond a replication of IR Act general protections provisions is further evidence of an intention that health and safety matters are not to be included in s 284 of the Act.

  1. [62]
    I accept the decision of Industrial Commissioner Black.
  1. [63]
    For those same reasons I do not see how I could accept the inclusion of paragraphs 61 to 66, 69 and 70 in the amended application. 
  1. [64]
    Paragraphs 61 to 66, 69 and 70 are not allowed.

Footnotes

[1] O'Sullivan v Farrer [1989] 168 CLR 210, 216  (Mason CJ, Brennan, Dawson and Gaudron JJ).

[2] Which included Lejmanoski v The University of Western Australia (No 2) [2014] FCCA 1179, [25].

[3] Outline of submissions in reply, paragraph 11

[4] Submissions on objections, paragraph 27.

[5] (1888) 38 Ch D 263, cited in Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205, [27] (Jackson J).

[6] Coco v Ord Minnett Ltd [2012] QSC 324, [18]-[19]

[7] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875, [351].

[8] Haines v Bendall (1991) 172 CLR 60.

[9] Kernal Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171, 173 (French J).

[10] The Respondent's submissions, paragraph 27-28.

[11] Allan v State of Queensland [2018] QIRC 36, [20]-[22]

Close

Editorial Notes

  • Published Case Name:

    Doorley v State of Queensland (Department of Premier and Cabinet)

  • Shortened Case Name:

    Doorley v State of Queensland (Department of Premier and Cabinet)

  • MNC:

    [2019] QIRC 205

  • Court:

    QIRC

  • Judge(s):

    Industrial Registrar Shelley

  • Date:

    24 Dec 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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