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  • Unreported Judgment

Mulholland v State of Queensland

 

[2020] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mulholland v State of Queensland and Anor [2020] QIRC 192

PARTIES:

Mulholland, Selamawit

(Complainant)

v

State of Queensland

(First Respondent)

AND

Orr, Martin

(Second Respondent)

CASE NO:

AD/2020/33

PROCEEDING:

Application in existing proceedings for joinder of a Third Respondent.

DELIVERED ON:

11 November 2020

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Full orders at end of Decision.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – Application in existing proceedings – where the First Respondent seeks to join a further respondent to the proceeding – where the Complainant objects to the joinder – whether this Commission is empowered to join an additional respondent – whether this Commission is empowered to allow the parties to amend their pleadings – whether a third party has a ‘direct interest’ in the proceeding – whether a third party has a sufficient ‘indirect interest’ in the proceeding.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 133, s 174B, s 174C, s 177, s 178, s 208, s 209

Industrial Relations Act 2016 (Qld) s 447, s 451, s 536, s 539, 541, sch 2

EXPLANATORY NOTES:

Explanatory Notes, Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Bill 2009 (Qld)

CASES:

Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77

China First Pty Ltd v Mount Isa Mines Limited [2019] 3 Qd R 173

Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 84

Hopper v Mount Isa Mines Ltd [1999] 2 Qd R 496

MM v State of Queensland [2014] QCAT 478

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417

Reasons for Decision

  1. [1]
    The substantive proceeding is a complaint of discrimination brought by Ms Selamawit Mulholland (‘the Complainant’) against the State of Queensland (‘the First Respondent’) and Dr Martin Orr (‘the Second Respondent’).[1]
  1. [2]
    On 15 September 2020, the First Respondent filed an Application in existing proceedings, which sought the joinder of Wavelength International Pty Ltd ACN 092 071 693 (‘Wavelength International’) as a Third Respondent to the proceedings, along with ancillary orders (together, ‘the Joinder Application’). That application is the subject of this decision.
  1. [3]
    The Second Respondent and Wavelength International indicated their consent to the joinder. The Complainant opposed it. The parties filed written submissions about the matter, and the application was decided on the papers.
  1. [4]
    Broadly, there are two issues to be decided in the Joinder Application:
  1. Is this Commission empowered to grant the joinder and ancillary orders sought?
  1. Should this Commission exercise its discretion to grant the joinder and ancillary orders sought?
  1. [5]
    For the reasons that follow, my findings are that:
  1. This Commission is empowered to join a further respondent to the proceedings and is empowered to the ancillary orders sought including amending pleadings, disclosure and the like.
  1. I will exercise my discretion to join Wavelength International as the Third Respondent in these proceedings, along with the ancillary orders sought, albeit in slightly different terms than those sought in the application.

The Joinder Application

  1. [6]
    The Joinder Application and supporting affidavit of Ms N Hrle filed 15 September 2020 can be summarised as follows:
  • On 6 June 2017 the First Respondent entered into a ‘Standing Offer Arrangement Deed for the Provision of Locum Medical Officers and Recruitment of Medical Officers Through Recruitment Agencies’ with Wavelength International (‘the Recruitment Agreement’).
  • The Recruitment Agreement effectively facilitates a process whereby the First Respondent may engage Locum medical officers through Wavelength International.
  • Under the terms of the Recruitment Agreement, from 4 June 2018 to 28 June 2019 Wavelength International engaged the Second Respondent as a locum medical officer and provided him to Queensland Health. He was to engage in consulting psychiatrist services on its behalf, and particularly for the Cairns and Hinterland Hospital and Health Service (‘CHHHS’).
  • The Recruitment Agreement provided that, as a locum medical officer, the Second Respondent was not an employee of the First Respondent. Rather, he was either an employee or subcontractor of Wavelength International.
  • The Complainant pleads, in her Statement of Facts and Contentions, that the First Respondent is vicariously liable for the actions of the Second Respondent. The inclusion of Wavelength International in the proceedings will be essential to addressing that point.
  • In summary, the Joinder Application seeks the following orders:
  1. That, pursuant to ss 536(a) and (b) of the Industrial Relations Act 2016 (Qld)[2] and ss 177(1) and (2) of the Anti-Discrimination Act 1991 (Qld),[3] Wavelength International be joined as a Third Respondent to the proceedings.
  1. That the First Respondent is to file and serve an amended response to the Complainant’s Statement of Facts and Contentions, as set out in the affidavit of Ms Hrle.
  1. That Wavelength International, as Third Respondent, be ordered to file and serve a response, provide disclosure to the other parties, and attend a further conciliation conference with all other parties.

The Complainant’s submissions of 25 September 2020

  1. [7]
    The Complainant opposed the Joinder Application in written submissions, which can be summarised as follows:
  • The Complainant does not seek any relief against Wavelength International.
  • Questions as to any subsequent liability Wavelength International may have to the First Respondent are a matter for a different place and should not be resolved within the determination of the complaint.
  • Before these proceedings commenced in the Queensland Industrial Relations Commission (‘QIRC’), a complaint was made to the Queensland Human Rights Commission in the usual way. There, the question of the inclusion of some out-of-time allegations was determined. In that process, the Second Respondent’s submissions accepted that he was an employee of the First Respondent. There was no further consideration of the matter at that stage, because the First Respondent did not raise it.
  • The First Respondent did not seek any order joining Wavelength International before or after the first conciliation conference at the QIRC.[4]
  • In his subsequent Statement of Facts and Contentions, the Second Respondent admitted he was an employee of the First Respondent.
  • It was not until 10 August 2020 that the First Respondent, in its Statement of Facts and Contentions, raised the issue of Wavelength International being the Second Respondent’s employer. There has been no explanation as to why that occurred.
  • The Complainant intends to amend her claim, so as to allege that the Second Respondent was either a worker or an agent of the First Respondent, and that the harassment occurred in the course of work or while acting as an agent. On that basis, the claim of vicarious liability will be pressed under s 133 of the AD Act.
  • The QIRC’s jurisdiction to hear and determine the substantive proceedings is provided for by s 174B of the AD Act. That jurisdiction is to hear and decide ‘complaints’ which are referred to the Commission.
  • The QIRC’s powers are therefore exercised within the jurisdiction conferred by s 174B of the AD Act, which flows from the processes set out in Ch 7 of the AD Act. In short: a complaint is made, a conciliation generally occurs, and if conciliation is unsuccessful the complainant may elect to proceed to hearing.
  • The AD Act does not permit a person to litigate a claim arising under that Act that has not been through the complaint and investigation process. Neither does the AD Act make provision for a respondent to seek relief in respect of a matter arising out of a complaint. Further, the AD Act does not set out any jurisdiction nor power by which the QIRC may resolve a commercial dispute between a labour hire company and its principal by way of indemnifying one party against the other.
  • The Commission has power to join a party to a proceeding. Pursuant to Gilbert,[5] parties with a direct legal interest are permitted to be joined as a matter of right. Parties with an indirect interest may be joined as a matter of discretion. The more remote the interest, the less likely it is that the party would be joined or permitted to be heard. 
  • Where the Commission has power to join an additional party, that power must be exercised consistently with the Commission’s jurisdiction. In matters such as this, the jurisdiction is founded on the complaint which is referred, citing Hopper.[6]
  • Black & White (Quick Service) Taxis Ltd[7] is further authority regarding how the procedural powers of joinder should operate with respect to the QIRC’s jurisdiction.
  • The Complainant has framed her case against the First and Second Respondent. She makes no allegations against Wavelength International, nor does she seek relief against them. Wavelength International has no interest in the proceeding as presently constituted. Neither is there any basis for one respondent to seek relief against another in proceedings such as this.
  • To grant the Joinder Application would circumvent the legislative scheme set out in the AD Act, namely investigation and conciliation through the Queensland Human Rights Commission before proceeding to litigation.
  • In circumstances where no relief is sought by the Complainant against Wavelength International, and the First Respondent is not permitted to pursue relief against them in this proceeding, Wavelength International has no relevant interest in the proceeding.
  • Even if the Commission has jurisdiction to order joinder, the discretion should be exercised to not make such an order.
  • The First Respondent has not explained why this issue has been raised so late in the proceedings, which is particularly true given that the time limit for raising a complaint against Wavelength International has expired.
  • There is also a risk that if the order was made, Wavelength International may seek to be discharged from the proceedings because no relief is sought against it by the Complainant.
  • It is also likely that the proceedings will be further complicated by additional evidence as to the merits of the First Respondent’s claim against Wavelength International. That will extend the hearing of the matter, both in duration and complexity, and has nothing to do with the complaint itself.
  • There is also no indication of what contribution Wavelength International may have to the proceeding, particularly on the substantive questions informing whether the allegations are borne out, beyond the cases advanced by the First and Second Respondent.
  • The Complainant also seeks to be heard on the issue of costs.
  1. [8]
    The submissions of the First Respondent in support of their Joinder Application can be summarised as follows:
  • As a matter of fact, Wavelength International was the Second Respondent’s employer at all times relevant to the complaint.
  • The relief sought by the First Respondent’s proposed amended response clearly contemplates a finding of liability against Wavelength International based on s 133 of the AD Act, and also the legal arrangement between Wavelength International and the First Respondent.
  • The First Respondent seeks that the Commission exercise its powers under s 177 of the AD Act, or in the alternative under ss 536(a) and 539(b) of the IR Act, to grant the joinder.
  • S 177 of the AD Act expressly empowers the Commission to join a party to the proceeding. It was considered by Member Roney QC in MM v State of Queensland.[8] In that case, the Member noted that s 177 was amended to substantively its present form in 2009, to overcome previously narrow constructions given to the clause in matters including Black & White (Quick Service) Taxis Ltd. The relevant change is encapsulated in the words ‘… whether or not the person was a complainant for, or respondent to, the complaint to which the proceeding relates.’ The Member also noted the explanatory notes accompanying that amendment, before going on to find that the joinder power had been broadened by that amendment.
  • In MM, Member Roney QC also distinguished the recent iteration of the AD Act and s 178 of the AD Act from the outcome in Hopper v Mount Isa Mines,[9] wherein his Honour Justice Moynihan considered the process to be undertaken in amending pleadings, amongst other things.
  • The Commission’s broad powers to join a party are reinforced by s 174C of the AD Act, which preserves the Commission’s powers under the IR Act.
  • The relevant principles governing joinder have been collected in Gilbert. In particular, the First Respondent relies upon the test propounded by Lord Diplock in Pegang Mining Co Ltd v Choong Sam[10] and the recent decision of the Queensland Court of Appeal in China First Pty Ltd v Mount Isa Mines Limited,[11] insofar as it expressed the proper approach to joinder:[12]

These cases reveal a systematic approach taken by courts to the determination of whether orders made or sought have had, or if made, will have, a direct effect on a legal right or liability. That approach has involved an identification of the specific legal right or liability said to have been affected or liable to be affected, and an assessment of its legal characteristics. Next, the court has inquired into whether the right or liability itself has been affected, or is liable to be affected. Typically, the inquiry has sought to establish whether there is an effect on the existence of the right or liability or on its legal characteristics; or whether there is an effect on the legal environment in which the right might be exercised or the liability discharged, such as would impact upon its exercise or discharge from a legal perspective. An effect of either kind has been regarded by courts as a direct effect on the right or liability for the purposes of the test.

  • The Complainant’s arguments, insofar as they regard the jurisdiction of the Commission to join additional parties being limited by the complaint, fail to appropriately consider the precise wording in s 177. The power afforded is specifically ‘whether or not the person was a … respondent to … the complaint to which the proceeding relates.’
  • As to the powers the Commission may have to allow the ancillary orders, including allowing the First Respondent to amend their response, the First Respondent points to s 451 of the IR Act. That section affords the Commission power to do all things necessary or convenient to be done for the performance of its functions. One of those functions is exercising the power under s 177 of the AD Act to allow for amendments, and consequential amendments are necessary to facilitate that process. In the alternative, the First Respondent relies upon s 539(c) and (d).
  • In returning to the question of whether Wavelength International has an interest in the proceedings as the Second Respondent’s employer, the First Respondent notes that the complaint as presently constituted regards conduct of the Second Respondent while he was a ‘worker’ and ‘in the course of work’. The First Respondent submits that, on the evidence before the Commission, that can only apply to Wavelength International. Even if the Second Respondent were an independent contractor, that contract was with Wavelength International rather than with the First Respondent.
  • Further, the First Respondent will seek to argue in the substantive proceeding that the any finding of vicarious liability under s 133 of the AD Act should also attach itself to Wavelength International. The basis for that includes the control exercised over the Second Respondent by Wavelength International.
  • The powers afforded to this Commission under s 448(b) of the IR Act may also extend to empowering this Commission to act upon the indemnity clause between the First Respondent and Wavelength.
  • It is expedient, just and fair to permit the Joinder Application in circumstances where, as employer of the Second Respondent, Wavelength International clearly has rights and responsibilities in respect of the Second Respondent.
  1. [9]
    The Complainant’s submissions in reply can be summarised as follows:
  • Neither the amendments to ss 177 and 178 of the AD Act, nor MM v State of Queensland [2014] QCAT 478 are of assistance to the First Respondent, for three reasons.
  • First, those amendments do not alter the nature of the Commission’s jurisdiction, which is to hear and determine a complaint referred to it. It is the Complainant’s case to make, and the complaint defines the scope of the proceeding. The Complainant can elect not to pursue relief against any entity.
  • Second, the power to amend the complaint is provided to the Complainant. Respondent parties are not afforded such an entitlement to amend the scope of the proceeding under the AD Act, nor the ability to bring a cross-claim.
  • Third, MM v State of Queensland involved a Complainant seeking to amend their complaint and join additional Respondents to address those changes. That is fundamentally different than the case advanced by the First Respondent with respect to the Joinder Application.
  • Contrary to the position of the First Respondent, the question for determination is not whether there is power for the First Respondent to amend its response. The question is whether the First Respondent is entitled to bring a claim for relief against Wavelength International. There is no such power under the AD Act.
  • The Commission is not empowered to determine what is effectively a cross-claim by the First Respondent against Wavelength International in the course of determining the complaint. The powers relied upon by the First Respondent are inapplicable. S 451 relates to the performance of the Commission’s functions, which does not include litigating a cross-claim. Joining Wavelength International is neither necessary nor convenient for the resolution of the complaint brought by the Complainant. S 539 empowers the Commission only once jurisdiction has been established, and cannot be used on the way to determining jurisdiction. S 488 is not helpful to the First Respondent either, because it is not the complaint of sexual harassment that needs to be an industrial matter, but rather the claim by the First Respondent against Wavelength International. That cross-claim is not about the rights, privileges or functions of an employer – it is a claim for indemnification from a commercial client against a labour hire provider. Further, the First Respondent’s claim against Wavelength International does not concern discrimination in employment, but rather concerns the contractual arrangement between those two entities. The indemnification relating to a labour hire arrangement does not place it within the definition of industrial matter.
  • Even if the Commission is empowered to grant the Joinder Application, it should exercise its discretion not to do so. The submissions in that regard are largely reflected in the initial submissions of the Complainant.
  • Further to those, it must be noted that this Commission is hearing proceedings brought under the AD Act, which in turn does not countenance for a respondent to make cross-claims against a third party, or indeed against a complainant. The AD Act is beneficial legislation designed to provide rights and remedies to a person the subject of sexual harassment. Any discretion should be exercised consistent with the framework established in the AD Act.
  • The proceedings have been on foot for quite some time, both in the Queensland Human Rights Commission and now in the QIRC. Only now has the First Respondent sought to agitate the notion that Wavelength International should be a respondent to the proceedings.
  • Both the First and Second Respondents have previously referred to their relationship as being employer/employee, to various degrees. That inconsistency has not been explained.
  • If the Joinder Application were granted, Wavelength International may seek to be discharged from the proceedings because no relief is sought against it by the Complainant.
  • Regardless of the position taken by Wavelength International, it is likely that the proceedings will be further complicated by additional evidence going to the merits of the First Respondent’s claim against Wavelength International. That is wholly unrelated to the complaint against the First and Second Respondents and will cause undue expense and delay.
  • The First Respondent has not indicated what contribution Wavelength International will make to the proceeding. There is no basis to conclude that Wavelength International will be able to make any contribution to the substantive questions of whether the Complainant was sexually harassed and/or victimised. It is also relevant to note that the First and Second Respondent are legally represented. As such, Wavelength International will offer no assistance to the Commission in determining the complaint.
  • The observations in Black & White (Quick Service) Taxis Ltd are apposite to the question of whether discretion should be exercised to join Wavelength International.

Is this Commission empowered to grant the orders sought?

Power to join party

  1. [10]
    The Complainant submits, and I agree, that the Commission’s power to hear and decide her complaint stems from s 174B of the AD Act, which provides:

174B Functions of industrial relations commission

The industrial relations commission has the following functions—

  1. (a)
    in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act—

(i) to make orders under section 144 before the complaints are referred to the tribunal; and

(ii) to review decisions of the commissioner under section 169 about lapsing of the complaints; and

(iii) to enforce agreements for resolution of the complaints by conciliation; and

(iv) to hear and decide the complaints;

  1. (b)
    to grant exemptions from this Act in relation to work-related matters;
  1. (c)
    to provide opinions about the application of this Act in relation to work-related matters;
  1. (d)
    any other function conferred on the commission by this Act;
  1. (e)
    to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).
  1. [11]
    The Commission’s powers under the IR Act are available to it in dealing with a matter under the AD Act, by virtue of s 174C of the AD Act:

174C Powers of tribunal under relevant tribunal Act

  1. (1)
    If this Act confers jurisdiction on the tribunal in relation to a complaint or other matter, the tribunal may exercise the powers conferred on it under this Act or the relevant tribunal Act.
  1. (2)
    Nothing in this Act limits the industrial relations commission’s powers under the IR Act, section 539.
  1. [12]
    The AD Act also relevantly provides:

177 Tribunal may join a person as a party

  1. (1)
    The tribunal may join a person as a party to a proceeding whether or not the person was a complainant for, or respondent to, the complaint to which the proceeding relates.
  1. (2)
    This section does not limit a provision of the relevant tribunal Act about joining a party to a proceeding.
  1. [13]
    The First Respondent relies upon MM v State of Queensland [2014] QCAT 478, where Member Roney QC made several references to the changes to s 177 of the AD Act and the relevant portions of the explanatory notes. Those explanatory notes provide:[13]

The inclusion of a new section 177 is to clarify that QCAT may join a third party to a proceeding where the person is not a complainant or respondent to the complaint to which the proceeding relates. Former decisions of the ADT have narrowly interpreted the former section 177 thus restricting the use of section 177 to join third parties to a proceeding. The relevant decisions include Lundbergs v QSuper [2003] QADT 8, Mickelo v Kotlaro & Cellcom Pty Ltd t/a Melbourne Hotel [2004] QADT 31, H v T [2006] QADT 20 and Black and White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77.

  1. [14]
    In reading s 177, there is clearly a discretion provided to the Commission to join an additional respondent to the proceeding after the complaint has been referred to the QIRC, whether or not that entity was a respondent to the complaint. In considering whether this Commission is empowered to grant the joinder sought, rather than whether it should occur, that section provides no limitations that would assist the Complainant’s position. It does not import any requirement that the complainant consent. The tribunal may join an entity as a respondent even if they were not a respondent to the complaint to which the proceeding relates. That is a very broad discretionary power.
  1. [15]
    The reasoning in cases such as Black & White (Quick Service) Taxis Ltd regarding the jurisdiction afforded to a tribunal to add parties to the proceeding under the previous iteration of s 177 can be distinguished by virtue of the amendment to that section in late 2009. Subsequent amendments also provided that the QIRC and QCAT may exercise that power, but there was no change to the scope of the power itself. The result of those amendments is that the Commission is afforded a very wide scope to join parties to the proceeding, irrespective of whether they were parties to the complaint to which the proceeding relates. Indeed, when one reads the explanatory memorandum for that amendment, it becomes clear that the legislature specifically sought to overcome the narrow interpretation applied in Black & White (Quick Service) Taxis Ltd.
  1. [16]
    As such, I find that the Commission is empowered to grant the joinder order sought by the First Respondent in respect of Wavelength International.
  1. [17]
    In respect of joinder, the First Respondent submits two alternative sources of power, namely the AD Act and the IR Act. Given my finding as to s 177 of the AD Act, which specifically addresses joinder of an additional party in proceedings under the AD Act, it is unnecessary to have recourse to the alternative powers in the IR Act. In any event, the factors which inform the exercise of those powers are largely identical.

Power to grant ancillary orders sought

  1. [18]
    The First Respondent seeks a variety of ancillary orders in the Joinder Application. Those include affording the First Respondent an opportunity to amend their response and providing Wavelength International a period to engage in disclosure and file their own response material.
  1. [19]
    The AD Act at s 174B provides that the QIRC’s functions under the AD Act include hearing and deciding complaints, and taking other action incidental or conducive to the discharge of that process.
  1. [20]
    At s 174C of the AD Act, the QIRC’s powers under the IR Act are preserved. The IR Act at s 447 provides that the Commission’s functions include functions which have been conferred upon it under another act.[14] The IR Act goes on in s 451 to provide that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. Further, the IR Act at s 536 provides that the Commission may issue directions it considers just and necessary in relation to interlocutory matters, including discovery. 
  1. [21]
    In the process of hearing and deciding a complaint, it is necessary to facilitate processes such as filing and exchanging Statements of Facts and Contentions, amendments to those materials, ordering disclosure, and the like. That occurs as a matter of course in proceedings such as this. The Commission is empowered to grant the ancillary orders sought, including allowing the First Respondent to amend their Statement of Facts and Contentions. However, that is not tantamount to a finding that this Commission is empowered to grant the relief sought by the First Respondent against Wavelength International in those amendments. That issue is considered later in this decision.

Should the Joinder Application be granted?

  1. [22]
    In Gilbert,[15] his Honour Vice President O’Connor considered the joinder of an additional party under ss 536 and 539 of the IR Act with respect to an application for declarations. The parties agree that Gilbert sets out the relevant principles which inform the exercise of my discretion in dealing with joinder generally. I am also of that view.
  1. [23]
    While considering whether the QNMU had a direct interest in the proceedings, his Honour Vice President O’Connor said (citations removed, emphasis retained):[16]

The test of what is a sufficient ground to entitle a person to be added as a party was expressed by the Privy Council in Pegang Mining Co Ltd v Choong Sam. Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council, said:

The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships’ view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.

It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and in Farbenindustrie AG Agreement [1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between ‘legal’ and ‘commercial’ interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

  1. [24]
    His Honour went on to note that the High Court had indirectly endorsed that approach, by way of its reliance on a chain of precedent including News Ltd v Australian Rugby Football League Ltd where it was said that (citations removed, emphasis added):[17]

There are some classes of case where the ascertainment of the necessary parties who “ought to have been joined” is not difficult. Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest. Grovenor v Permanent Trustee Co of New South Wales Ltd is an example of this class of case. Where the subject matter of the proceedings is not of this kind, the ascertainment of necessary parties who ought to have been joined may be more difficult. In our opinion, the question should be decided according to the test proposed by Lord Diplock. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party’s rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

  1. [25]
    The question of whether to exercise my discretion to join Wavelength International to these proceedings requires determining the interest, if any, which Wavelength International has in these proceedings.
  1. [26]
    The Complainant’s position is that Wavelength International has no relevant interest in these proceedings. Wavelength International’s only interest is related to their potential indemnification of the First Respondent for conduct of the Second Respondent, which is not an issue to be resolved in determining the complaint. 
  1. [27]
    The First Respondent’s position is effectively that such an interest is sufficient to warrant Wavelength International’s joinder to these proceedings. The First Respondent also submits, in effect, that this Commission is empowered to consider the indemnification in any award of damages or costs. I will deal with each of those points.

Is the Commission empowered to apportion damages in an Anti-Discrimination matter?

  1. [28]
    The First Respondent proposes to make a variety of amendments to their Statement of Facts and Contentions. They intend to plead that Wavelength International should be jointly and severally liable for any damages or costs incurred in these proceedings by the First Respondent, or in the alternative that Wavelength International should indemnify the First Respondent for such liability in accordance with the Recruitment Agreement. 
  1. [29]
    As I have previously found, the Commission is empowered to allow the Respondents to amend their response materials. Within reason, the First Respondent is entitled to respond to the complaint in the manner they see fit. However, for the purposes of determining whether Wavelength International has a sufficient interest in these proceedings to warrant their joinder as a party, it is necessary to consider whether this Commission is able to grant the orders sought by the First Respondent at paragraphs 76(d) and (e), in concert with paragraph 66A, of their proposed amended Statement of Facts and Contentions.
  1. [30]
    Paragraph 76(d) provides that, so far as the First Respondent is found to be vicariously liable, Wavelength International is to be held jointly and severally liable with the First Respondent per s 133(1) of the AD Act. It is not unusual or unreasonable for Respondents’ interests to diverge, and this Commission is indeed empowered by s 133 to order joint and several vicarious liability. The question of whether there is any vicarious liability, and between whom, is ultimately a matter for the Commissioner hearing the proceeding to determine. There is nothing untoward in the First Respondent’s contention about that issue if Wavelength International is a party to the proceeding.
  1. [31]
    Paragraph 76(e) provides that, further or in the alternative to 76(d), Wavelength International be ordered to indemnify the First Respondent pursuant to the Recruitment Agreement with respect to liability incurred by the First Respondent in these proceedings.
  1. [32]
    The First Respondent refers to several powers within the AD and IR Acts to grant the Joinder Application. So far as the ancillary orders are concerned, the First Respondent submits that s 451, or s 488(b) of the IR Act empowers this Commission to grant the orders sought.
  1. [33]
    The Complainant submits that the hearing of the complaint is not the appropriate venue for the First Respondent to bring, in effect, a cross-claim against Wavelength International. That is an attractive proposition. The task of this Commission in a matter such as this is to hear and determine the complaint. I am doubtful that this Commission is empowered to determine the veracity and effect of an indemnity in a contract between two respondents in that process.
  1. [34]
    S 451 of the IR Act empowers this Commission to do all things necessary or convenient to be done for the performance of its functions. Further, s 448 of the IR Act provides:

448 Commission’s jurisdiction

  1. (1)
    The commission may hear and decide the following matters—
  1. (a)
    a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
  2. (b)
    all questions—
  1. (i)
    arising out of an industrial matter; or
  2. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  3. (iii)
    it considers expedient to hear and decide about an industrial matter;

  1. (e)
    all matters referred to the commission under this Act or another Act.
  1. [35]
    The term ‘Industrial matter’ is defined in s 9 to mean:

9  What is an industrial matter

  1. (1)
    An industrial matter is a matter that affects or relates to—
  1. (a)
    work done or to be done; or
  2. (b)
    the privileges, rights or functions of—
  1. (i)
    employers or employees; or
  2. (ii)
    persons who have been, or propose to be, or who may become, employers or employees; or
  1. (c)
    a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
  1. (2)
    However, a matter is not an industrial matter if it is the subject of a proceeding for—
  1. (a)
    an indictable offence; or
  2. (b)
    a public service appeal.
  1. (3)
    Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.
  1. [36]
    At sch 1 of the IR Act, the term is more expansively defined to include discrimination in employment, including in remuneration or other employment conditions.
  1. [37]
    The power for this Commission to award compensatory damages in a proceeding under the AD Act stems from s 209, which provides:

209 Orders the tribunal may make if complaint is proven

If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders—

  1. (b)
    an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;

 

  1. [38]
    The issue of costs in proceedings under the AD Act is dealt with in sch 2 of the IR Act.
  1. [39]
    I am doubtful that the orders sought by the First Respondent regarding what is tantamount to a cross-claim against Wavelength International constitute an industrial matter as defined in the IR Act. The privileges, rights and functions of the employer as set out in s 9 and sch 1 of the IR Act contain some inherent restraint. They would not encapsulate an employer seeking to exercise their rights against other suppliers of goods or services simply because their contract with that entity occurred in the workplace. The definition is not boundless – it relates to entities acting in their capacity as an employer or employee, or as a prospective employer or employee. When the First Respondent entered into the Recruitment Agreement they were acting in their capacity as a client seeking labour – they acted as a ‘customer’.[18] The definition of industrial matter does not allow this Commission to hear and determine matters related to any right an entity may have, simply because they also happen to be an employer or employee. It concerns matters specifically occurring in the capacity of employer or employee. I am not aware of any precedent supporting the interpretation proposed by the First Respondent. To follow that interpretation to its natural conclusion would involve venturing beyond the reasonable limits of this Commission’s jurisdiction.
  1. [40]
    Further, there is nothing within section 209, sch 2 of the IR Act, or within the AD Act more broadly, which would expressly empower this Commission to apportion an award of damages, or to order that one respondent should pay an amount to another. This Commission is empowered to order that the respondent pay an amount considered appropriate to compensate the Complainant for loss or damage caused by the contravention. The purpose of any award of damages must therefore be to compensate for loss or damage caused to the complainant, not between any of the respondents. The words ‘caused by the contravention’ do not appear to invite apportionment between each of the respondents, but rather to establish causation between the contravention and the loss. I acknowledge that such a view certainly presents some oddities in how an award of damages is to be made, particularly where one respondent’s conduct caused more loss to the complainant. Nevertheless, there simply does not appear any power to make such an apportionment.
  1. [41]
    Hopper v Mount Isa Mines Ltd, insofar as his Honour Justice Moynihan considered apportionment, provided:[19]

At first blush it seems extraordinary that the third, fourth and fifth appellants, whose harassment was constituted by a single incident, should be treated as equally responsible with the second appellant who was in a supervisory position and whose relations with the respondent continued over a period of time. The more so with respect to the first appellant which is vicariously responsible for both the harassment and discrimination by the other appellants which it was open to the Tribunal to find.

The Act, however, makes no provision for apportionment. Apportionment of damages in accordance with the various parties’ degree of fault is a creature of statute. It was first introduced into English maritime law in 1911 in lieu of a rule of equal division and more generally in Queensland by the Law Reform Act 1995. See the discussion in Fleming, The Law of Torts (9th ed., 1998) p. 306. Absent an applicable statutory provision there does not seem to have been any power to apportion.

  1. [42]
    While that decision may be distinguished insofar as it deals with a previous iteration of the power to join parties to a proceeding under the AD Act, the legislation underpinning an award of damages has not been altered in any relevant sense since his Honour’s decision. It is therefore binding upon this Commission.
  1. [43]
    I find that there is no basis for this Commission to apportion damages in a proceeding under the AD Act. Nor is there any basis for this Commission, in hearing and deciding a proceeding under the AD Act, to litigate what is effectively a cross-claim between the First Respondent and Wavelength International.
  1. [44]
    However, this Commission is empowered, and indeed required, to determine the Complainant’s contention of vicarious liability. For reasons which follow, Wavelength International has an interest in the proceeding in that sense, and their involvement will assist the Commission in considering that point. Further, my findings as to the orders sought by the First Respondent against Wavelength International do not obviate Wavelength International’s interest in these proceedings arising as a result of their liability to the First Respondent.

Does Wavelength International otherwise have a sufficient interest to warrant joinder to these proceedings?

  1. [45]
    The Complainant’s Statement of Facts and Contentions includes the contention that the First Respondent is vicariously liable for a variety of contraventions of the AD Act said to have been committed by the Second Respondent, by way of s 133 of the AD Act:

133 Vicarious liability

  1. (1)
    If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
  1. (2)
    It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
  1. [46]
    In the complaint as presently constituted, there is no contention that Wavelength International is vicariously liable for the actions of the Second Respondent. In that sense, there is no direct interest. However, that is not the end of the matter.
  1. [47]
    There is a contemplation within both Pegang Mining Co Ltd and News Ltd that the liability a third party will incur to a party to the proceedings in respect of the subject matter of the proceedings and as a result of those proceedings is a direct interest. The judgements in both matters also emphasised that each case will turn on its own facts and the practical realities of the proceeding. In that sense, it is also highly pertinent that there is a real dispute as to who the Second Respondent’s employer was, and the roles of the First Respondent and Wavelength International.
  1. [48]
    In considering the test as posed by Lord Diplock in Penang Mining Co Ltd, Wavelength International faces a clear possibility of liability to the First Respondent in the event that they are held vicariously liable for any discriminatory actions of the Second Respondent. If an order were made in the proceedings to that effect, the First Respondent would become jointly and severally liable.[20] In turn, Wavelength International would become liable for those damages by way of the indemnification in the Recruitment Agreement. In considering the Recruitment Agreement, that seems a very real prospect. In the sense expressed in Pegang Mining Co Ltd and News Ltd, Wavelength International’s interest in the proceeding is direct.
  1. [49]
    In Gilbert, his Honour Vice President O’Connor summarised the relevant principle in Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division[21] as follows:[22]

What can be gleaned from the reasoning of Gibbs CJ in Ludeke is: first, that every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and secondly, the principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.

  1. [50]
    With respect to further authorities dealing with the joinder of an intervening party, His Honour went on to say:[23]

I accept that the authorities support the proposition that a party whose direct legal interests will be affected by the litigation will have a right to intervene in proceedings. Further, a party whose interests are only indirectly affected may be heard as a matter of discretion. However, the discretion is less likely to be exercised in favour of a party in circumstances where the interest is more remote.

  1. [51]
    The Complainant’s summary of the relevant legal principles governing joinder included:[24]

Parties with a direct legal interest are permitted to be joined as a matter of right. Parties with an indirect interest may be joined as a matter of discretion. However, the more remote the interest the less likely it is that a party would be joined or permitted to be heard.

  1. [52]
    In the alternative to my finding of direct interest, I have considered whether Wavelength International has a sufficiently proximate indirect interest. If Wavelength International’s contractual arrangements with the First and Second Respondents only constituted an indirect interest in these proceedings, I would find that such indirect interest is significant enough to warrant their joinder as a party. Their interest is not remote, and indeed is tightly tied to these proceedings. It stems from:
  1. Their agreement to indemnify the First Respondent with respect to the actions of the Second Respondent;
  2. Their status as potential employer or principal of the Second Respondent; and
  3. The pleading of vicarious liability by the Complainant, which itself relates to a. and b. above.
  1. [53]
    The Complainant also makes several points about whether Wavelength International should be joined. In summary, she submits that:
  1. The proceedings have been on foot for quite some time, both in the Queensland Human Rights Commission and now in the QIRC. Only now has the First Respondent sought to agitate the notion that Wavelength International should be a respondent to the proceedings.
  1. Both the First and Second Respondents have previously referred to their relationship as being employer/employee, to various degrees. That inconsistency has not been explained.
  1. If the Joinder Application were granted, Wavelength International may seek to be discharged from the proceedings because no relief is sought against it by the Complainant.
  1. Regardless of the position taken by Wavelength International, it is likely that the proceedings will be further complicated by additional evidence going to the merits of the First Respondent’s claim against Wavelength International. That is wholly unrelated to the complaint against the First and Second Respondents and will cause undue expense and delay.
  1. The First Respondent has not indicated what contribution Wavelength International will make to the proceeding. There is no basis to conclude that Wavelength International will be able to make any contribution to the substantive questions of whether the Complainant was sexually harassed and/or victimised. It is also relevant to note that the First and Second Respondent are legally represented. As such, Wavelength International will offer no assistance to the Commission in determining the complaint.
  1. The observations in Black & White (Quick Service) Taxis Ltd are apposite to the question of whether discretion should be exercised to join Wavelength International.
  1. [54]
    I will deal with each of those matters in turn.
  1. [55]
    First, I agree that the Joinder Application was not brought at the earliest opportunity. The lateness of the hour at which it has been brought does cause some inconvenience to all of the parties, but it is not overbearing. The matter is still in the conciliation stage in the QIRC, and in this jurisdiction the parties’ cases are set out in Statements of Facts and Contentions. It is quite usual for changes to occur in both the substance of the proceeding, and the composition of the parties to the proceeding, in the time between the complaint being referred and the matter being heard. I also note that the delay on the part of the First Respondent is to a far lesser degree than in Black & White (Quick Service) Taxis Ltd, where the matter had already progressed through conciliation.
  1. [56]
    Second, it is true that there have been some inconsistencies in the categorisation of the relationship between the First and Second Respondent to date. The relevance of those inconsistencies to the outcome of these proceedings, however, is not apparent. The First Respondent has provided, in the affidavit of Ms Hrle, cogent evidence that the Second Respondent’s employer was in fact Wavelength International by way of the Recruitment Agreement. The Recruitment Agreement also provides an indemnification by Wavelength International in favour of the First Respondent. That relates to the interest of Wavelength International in these proceedings. It does not appear that the Complainant takes a well-defined position as to who the Second Respondent’s employer was. Nor does it appear that she contests the factual basis of the First Respondent’s submission that Wavelength International was the Second Respondent’s employer. As such, nothing turns on the inconsistencies noted by the Complainant. Even if there were something to be made of such inconsistencies, it would be a matter to be addressed at hearing. 
  1. [57]
    Third, the notion of Wavelength International seeking to be removed from the proceedings at some later stage seems very distant in circumstances where they have consented to being joined. If such an application were made, it would be a matter for the Commissioner hearing the matter to decide, though no doubt their previous consent to be joined and their status as the apparent employer of the Second Respondent would be pertinent. It would be an undesirable outcome for Wavelength International to seek to be removed as a respondent at a later stage, but it seems a remote prospect. The risk of that occurring could be obviated almost entirely if the Complainant elected to amend their Statement of Facts and Contentions to include the Third Respondent in their claim.
  1. [58]
    As to the fourth and fifth points, vicarious liability became an issue in these proceedings when the Complainant plead to that effect. That issue may well be contentious, and its resolution will require the parties to lead evidence about it. That is not particularly unusual. It is a necessary step in determining whether there is some vicarious liability, and between whom. I do not agree that the hearing of the proceeding need devolve into the resolution of issues as to indemnification. This Commission is tasked with considering, inter alia, whether one entity should be vicariously liable for the actions of another entity. If that is the case, then both the discriminating party and the vicariously liable party become jointly and severally liable in accordance with s 133(1) of the AD Act.
  1. [59]
    It is not necessary to decide at this stage whether some apportionment or consideration of the contractual relationship between the Second Respondent and Wavelength International should occur, and subsequently be reflected in any award of damages. Such questions should be resolved after the complaint, including issues of vicarious liability, is resolved. That process reflects the Commission’s role in hearing and determining complaints.
  1. [60]
    As such, I do not agree with the First Respondent’s contention that the hearing of the complaint is also an appropriate venue to give effect to their indemnity clause. Yet that does not obviate Wavelength International’s interest in these proceedings. It cannot be said that the resolution of vicarious liability is unrelated to resolving the complaint or will cause undue expense or delay; it is a part of the Complaint. The Commission will be assisted in determining that matter by Wavelength International being a party to the proceeding. 
  1. [61]
    In dealing with the sixth point, it is useful to first briefly summarise Black & White (Quick Service) Taxis Ltd. At first instance in that matter, Black & White (Quick Service) Taxis Ltd brough an application before QCAT. They sought inter alia that Black & White (Quick Service) Taxis Ltd be discharged from the Complaint, or that another company said to be the taxi owner be joined as a co-respondent. A series of events followed which are not relevant to these proceedings, but the culmination of those was that the application of Black & White (Quick Service) Taxis Ltd was dismissed. On appeal, his Honour Jones J found:[25]

The circumstances here called for the Tribunal to determine whether it had jurisdiction and then to decide how the discretion was to be exercised. The Tribunal member purported to exercise her discretion whilst holding a doubt about her power to do so. This, it seems to me, gives rise to error and requires the Court now to exercise its powers under s 218 of the Act.

  1. [62]
    His Honour went on to re-determine the matter and engage in an exercise of discretion as to whether or not to grant the application:

Foremost amongst the factors touching upon the discretion is the fact that the joinder has, in my view, little relationship to the stated purposes of the Act as referred to in paragraph [39] above. Secondly, there is the matter of delay. The complaint was lodged on 31 March 2005 and the Commission referred the complaint to the Tribunal in August 2005. The matter was first raised before the Tribunal in October 2006, some one year and three months after the referral. There was a hearing by the Tribunal on 27 February 2006 when procedural orders were made for the two complaints to be joined together and for the complainant to provide witness statements. Some of the delay might then be attributed to the complainant’s failure to comply but that fact did not prevent Black & White Taxis from raising the joinder question in February 2006 or at any time thereafter.

Thirdly, the effect of any joinder would be to add significantly to that delay whilst Black & White Taxis and the owner identify the issues between them and deal with any interlocutory matters. One anticipates that there might well be an application by the owner to be discharged from a complaint which is raised not by a complainant but by a respondent. Whilst not expressing any view about the merits of such an application, it simply highlights that there is a potential for the existing serious delay to be further extended.

Finally, it seems to me, that the facts of the case are in relatively small compass. It is the type of case which ought to be dealt with speedily and without allowing legal issues to introduce complexity which is against the spirit of the legislation.

I would, therefore, in the exercise of my discretion refuse the application.

  1. [63]
    Those findings can be distinguished from the present case in several material ways.
  1. [64]
    First, as set out above, the legislation which was considered by his Honour has since changed. The effect of that change was, according to the explanatory memorandum, specifically to avoid the narrow interpretation applied in Black & White (Quick Service) Taxis Ltd and cases like it. That must be borne in mind when considering the relevance of that case to the present proceedings.
  1. [65]
    In [39] of that decision, his Honour noted that the tribunal did not have the power to grant orders in favour of Black & White (Quick Service) Taxis Ltd insofar as they regarded a cross-claim or the like, and afforded that factor foremost importance in exercising his discretion. That certainly appears the case in my opinion, and so it might well be said that the relevance of his Honour’s findings in that regard have survived the amendments to s 177. However, I have not found that factor to be as relevant to the circumstances of this case, because in accordance with Gilbert I have considered the relevant test to be the interest which Wavelength International has in these proceedings.
  1. [66]
    His Honour’s second and third points both relate to delay, expedience, and the potential for the third party to seek to be removed from the proceedings. I have already considered the potential for Wavelength International to seek to be removed as a party, and found it to be remote. Further, this matter is in its comparative infancy, having not yet progressed past the conciliation stage. I do not believe any significant delay will arise from allowing the Joinder Application.
  1. [67]
    As for his Honour’s fourth point, this case presents a far more complex factual stratum than was before his Honour. In that case, the complaint centred around a single allegation of a racial slur. Here, there are said to be a multitude of different events constituting the conduct complained of. In the usual course, each event will bear upon the others with regard to how they are viewed in context. I do not believe unnecessary complexity will be imported to the proceedings by making Wavelength International a party to these proceedings.
  1. [68]
    Several of the factors raised by the Complainant present a mild inconvenience. The others are matters which would be determined by the Commissioner hearing the matter, or are inherently improbable, or weigh only lightly in favour of rejecting the Joinder Application. Taken together, along with the interest that Wavelength International has in these proceedings and the usefulness their presence will have in determining the complaint, the factors raised by the Complainant do not militate against granting of the Joinder Application.
  1. [69]
    In addition, I am acutely aware that these proceedings are still at an early stage in the QIRC. The matter is to be returned for at least one further conciliation conference. The involvement of all relevant interests at that stage, particularly an entity that is potentially the employer of the Second Respondent and an indemnifier of the First Respondent, will be conducive to a swift resolution of the matter. The additional disclosure requirements set out in the ancillary orders sought will also allow the parties to better understand the prospects of the vicarious liability claim. Those factors weigh in favour of granting the Joinder Application.

Costs

  1. [70]
    The matter is still in the conciliation stage. It would not be conducive to resolving the matter by agreement to embroil the parties in costs disputes at this stage. The costs of the joinder application are reserved, to be determined by the Commissioner who hears the matter should it progress to that stage. If the matter resolves by agreement, except only for the issue of the costs of this application, then the parties should advise the Industrial Registry to that effect and I will hear the parties as to costs.

Conclusion

  1. [71]
    The primary consideration in determining whether Wavelength International should be joined as a party is whether they have a direct interest in these proceedings, or a sufficiently proximate indirect interest. That need not arise from a cross-claim from the First Respondent. Here, it arises from a combination of the Complainant’s case pleading vicarious liability, and Wavelength International’s contractual arrangements with both the First Respondent and the Second Respondent.
  1. [72]
    The Complainant’s case involves contending that the First Respondent is vicariously liable for the actions of the Second Respondent. Wavelength International, by way of the Recruitment Agreement, appears to have agreed to indemnify the First Respondent with respect to the acts of the Second Respondent. Therefore, if there is a finding in favour of the Complainant on that point and damages awarded, Wavelength International will become liable to the First Respondent. That is a direct interest, as established in Pegang Mining Co Ltd and News Ltd.
  1. [73]
    Further, the Complainant’s case requires the Commission to determine whether vicarious liability should be imposed, and upon whom. In answering that question, the Commission will be assisted by the presence of all the entities who exercised control over the Second Respondent in his employment, or who engaged him to provide a service through either employment or as an independent contractor, during the relevant period.   
  1. [74]
    It is relevant that this matter is in the conciliation stage. Disclosure from each of those entities may well allow the parties to better understand the prospects of their case. The resolution of the complaint at this early stage, which I am optimistic can occur, will be assisted by the presence of all relevant entities, who will each no doubt have a commercial interest in concluding the matter prior to an expensive, time-consuming and public hearing, the outcome of which is fraught with uncertainty.
  1. [75]
    As such, I have determined to join Wavelength International as the third respondent to these proceedings and grant the ancillary orders which are necessary to facilitate that process. That includes disclosure and the filing and amending of Statements of Facts and Contentions. Further to that, I note that the First Respondent’s draft amended pleading includes contentions that Wavelength International indemnify them, which I have determined are beyond the scope of this proceeding. I will allow the First Respondent and Second Respondent a brief period to file any amended Statement of Facts and Contentions, whatever those amendments may be, rather than in the terms of the draft attached to the affidavit of Ms Hrle.
  1. [76]
    I will first allow the Complainant an opportunity to amend her material in light of this decision, should she wish to do so.
  1. [77]
    Costs of the application are reserved until either the substantive proceeding is determined, or the matter is resolved by agreement bar only for the issue of the costs of the application.
  1. [78]
    I order accordingly.

Orders:

  1. That Wavelength International Pty Ltd ACN 092 071 693 (‘Wavelength International’) be joined as the Third Respondent to these proceedings.
  1. That, by 4:00pm on 16 November 2020, the Complainant file in the Industrial Registry and serve on the parties any amended Statement of Facts and Contentions.
  1. That, by 4:00pm on 20 November 2020, the First Respondent and Second Respondent file in the Industrial Registry and serve on the parties any amended Responses.
  1. That, by 4:00pm on 18 December 2020, the Third Respondent file in the Industrial Registry and Serve on the parties its Response.
  1. That, by 4:00pm on 4 January 2020, the Third Respondent supply to each party, but not file in the Industrial Registry, a list of documents in its possession or under its control which are relevant to a matter in issue in the proceedings, and the other parties supply to the Third Respondent their lists of such documents.
  1. That, by 4:00pm on 11 January 2020, the Third Respondent supply to each other party, but not file in the Industrial Registry, copies of those documents contained in its list of documents which each party requests from the Third Respondent, except those documents subject to a legal claim to privilege. The other parties are to supply to the Third Respondent copies of those documents contained in their lists of documents which the Third Respondent requests from each party, except those documents subject to a legal claim to privilege.
  1. Costs of the application are reserved until either the substantive proceeding is determined, or the matter is resolved by agreement bar only for the issue of the costs of the application.
  1. All parties are to attend a conciliation conference before Commissioner McLennan, on a time and date to be advised.

Note: The parties are to advise the Industrial Registry as to their availabilities in January and February 2020 to attend a conference in this matter.

 

Footnotes

[1] For convenience, in this decision I have referred to the parties as they appear in the substantive proceedings.

[2] ‘IR Act’.

[3] ‘AD Act’.

[4] I am conscious of s 208(2) of the AD Act imposing a prohibition on considering events within the conciliation process and have limited my consideration accordingly. The submission is primarily illustrative of the fact that the issue was not yet raised by that stage, which does not require delving into the contents of the conciliation itself.

[5] Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 84.

[6] Hopper v Mount Isa Mines Ltd [1999] 2 Qd R 496, [8].

[7] Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77.

[8] MM v State of Queensland [2014] QCAT 478.

[9] Hopper v Mount Isa Mines [1999] 2 Qd R 496.

[10] Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52.

[11] China First Pty Ltd v Mount Isa Mines Limited [2019] 3 Qd R 173.

[12] Ibid [60].

[13] Explanatory Memorandum, Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Bill 2009 (Qld), 259 - 260.

[14] Industrial Relations Act 2016 (Qld) s 447(1)(p).

[15] Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 084.

[16] Ibid [27].

[17] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, 523-525.

[18] Affidavit of Ms N Hrle filed 15 September 2020, [4](b) – [4](d).

[19] Hopper v Mount Isa Mines Ltd [1999] 2 Qd R 496, [60]-[61].

[20] Anti-Discrimination Act 1991 (Qld) s 133(1).

[21] Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417, 421-422.

[22] Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 084, [25].

[23] Ibid [41].

[24] Complainant’s submissions, filed 25 September 2020, [21].

[25] Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77, [41].

Close

Editorial Notes

  • Published Case Name:

    Mulholland v State of Queensland and Anor

  • Shortened Case Name:

    Mulholland v State of Queensland

  • MNC:

    [2020] QIRC 192

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    11 Nov 2020

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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