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  4. Mohr-Edgar v Legal Aid Queensland - [2023] ICQ 25

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Mohr-Edgar v Legal Aid Queensland[2023] ICQ 25

Mohr-Edgar v Legal Aid Queensland[2023] ICQ 25

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

PARTIES:

SANDRA MOHR-EDGAR

(appellant)

v

LEGAL AID QUEENSLAND

(respondent)

FILE NO:

C/2020/20

PROCEEDING:

Appeal

DELIVERED ON:

1 November 2023

HEARING DATE:

5 and 9 February 2021

MEMBER:

Davis J, President

ORDERS:

  1. Within 14 days, the respondent produce to the appellant:
  1. (a)
    a copy of any written submissions made by it in review ER 314484;
  2. (b)
    a copy of preliminary assessment ER 314609.
  1. Within 14 days, the respondent shall file and serve upon the appellant an affidavit sworn by a responsible officer of the respondent deposing to whether the following records are in the possession or control of the respondent:
  1. (i)
    Internal calls received on 8 May 2018 by Jessica Dean from Nicky Davies or any Legal Aid HR staff member.
  2. (ii)
    Calls on 9 May 2018 between Jessica Dean and Lyndi Hawkings-Guy between 8.30 am and 10.00 am.
  3. (iii)
    Calls on 8 October 2018 between Jessica Dean and Lyndi Hawkings-Guy from 12.00 pm until 8.45 am on 9 October 2018
  1. The appeal is otherwise dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – where the appellant made claims against her employer and other employees of discrimination – where the complaints were referred to the Queensland Industrial Relations Commission (QIRC) – where the appellant sought disclosure against Telstra – where the appellant sought disclosure against the employer – where some disclosure was given by the QIRC – where some disclosure was refused – where the appellant appealed against the refusal – whether documents were relevant to the appellant’s claims – whether disclosure should otherwise be given

Anti-Discrimination Act 1991, s 164A, s 166

Industrial Relations Act 2016, s 407, s 424, s 557, s 558, s 563, s 564, s 565, s 566, s 567

Industrial (Tribunals) Rules 2011, r 46, r 58, r 64B

Legal Aid Queensland Act 1997, s 41

CASES:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited

Application by Brenda Atkinson to search and take copies of documents [2001] ICQ 30; (2001) 167 QGIG 182, cited

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, cited

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17, cited

Hawkins Road Transport Pty Ltd v Transport Workers’ Union of Australia, Union of Employees [1999] QIC 20; 161 QGIG 108, cited

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, followed

Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185, related

NQEA Australia Pty Ltd v Dare (No 2); NQEA Australia Pty Ltd v Dare (No 3) [2003] ICQ 61; (2004) 175 QGIG 17, cited

Turay v Workers’ Compensation Regulator [2023] ICQ 013, cited

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, followed

COUNSEL:

The appellant appeared on her own behalf

J Marr for the respondent

SOLICITORS:

The appellant appeared on her own behalf

GR Cooper, Crown Solicitor for the respondent

  1. [1]
    The applicant, Sandra Mohr-Edgar, is a solicitor employed by Legal Aid Queensland (Legal Aid).  She is a long-term employee of Legal Aid and has held a position as a lawyer in that office since 20 October 2008.  She has expertise in family law and works in the child protection team within the Family Law Services Directorate of Legal Aid.
  2. [2]
    Ms Mohr-Edgar made various complaints under the Anti-Discrimination Act 1991 (the AD Act) against Legal Aid and three of its employees, Paul Davey, Nicky Davies and Toni Bell.  In July 2019, the complaints were referred to the Queensland Industrial Relations Commission (QIRC) pursuant to s 166 of the AD Act. 
  3. [3]
    Disclosure of documents occurred.  Ms Mohr-Edgar sought further documents so she issued a non-party production notice[1] to both Telstra and Barr Group BCM Pty Ltd and an attendance notice[2] to Legal Aid.  Various objections were made to those notices. 
  4. [4]
    Those objections were heard by the QIRC who on 27 October 2020[3] upheld the non‑party production notice directed to Barr Group BCM Pty Ltd.
  5. [5]
    In relation to the challenges to the non-party production notice against Telstra, the QIRC ordered:

“The Non-Party Disclosure notice regarding Telstra is set aside, except for the following phone records which Ms Mohr-Edgar is to have disclosed to her: records of phone calls made by Ms Hawkings‑Guy to Ms Dean on 9 May 2018 between 8.30am and 10.00am.”

  1. [6]
    In relation to the challenges to the attendance notice directed to Legal Aid, the QIRC ordered:

“With regard to the Attendance Notice directed at Legal Aid Queensland, the following are to be provided to the[4] Ms Mohr-Edgar with the remainder of the items struck out:

  • The 2016 emails regarding the ICL[5] file must be provided to the extent that they exist and are able to be located. If they cannot be located, a document demonstrating that a search took place must be provided to the Applicant.
  • For the client Ms Dean and Ms Hawkings-Guy recalled discussing when providing information to the external investigator, the client file/client advice up to and including 9 May 2018 to be provided to the Applicant.
  • Internal LAQ emails regarding the Applicant's RTI and IP access applications and the OIC external reviews for the period prior to Victimisation Complaint 5 being made.
  • To the extent that information requested to establish past economic loss exists, it must be provided. If no such information is available, Ms Mohr-Edgar should be provided with correspondence to this effect.”
  1. [7]
    Although an attendance notice[6] was served upon Legal Aid, Ms Mohr-Edgar and Legal Aid are parties to the litigation and as between them the issue just becomes one of disclosure.
  2. [8]
    An application to appeal was filed and later amended.  The amended notice of appeal raises various grounds and the relief sought in relation to the non-party production notice against Telstra is:

“1. That pursuant to Section 558(1)(c) of the Industrial Relations Act 2016, the Court allow the appeal in relation to the learned Commissioner’s decision to set aside the Form 29 Notice of Non-Party Disclosure issued against Telstra and amend the decision to allow disclosure to the appellant of the following phone records:

a. Records of incoming phone calls for Jessica Dean on 8 May 2018 from either Nicky Davies or a LAQ HR staff member (numbers of HR staff members as at 8 May 2018 and for Ms Davies to be provided to the registry).

b. Records of incoming phone calls for Jessica Dean on 8 October 2018 from 12pm from Lyndi Hawking-Guy (Numbers to be provided to the registry).

c. Records of incoming phone calls for Lyndi Hawking-Guy on 8 October 2018 from 12pm from Jessica Dean (Numbers to be provided to the registry).”

  1. [9]
    As to the attendance notice against Legal Aid, the relief sought on appeal is:

“2. That pursuant to Section 558(1)(c) of the Industrial Relations Act 2016, the Court allow the appeal in relation to the learned Commissioner’s decision to strike out the Form 32B Attendance Notice issued against Legal Aid Queensland and amend or substitute the decision to allow production of and/or require disclosure pursuant to Rule 46 of the Industrial Relations Tribunal Rules 2016 of the following documents:

a. That in the event that the outcome of the suspected corrupt conduct public interest disclosure (PID) establishes that records of the complaint response to Miss Rhonda Sheehy is in the possession or control of the First Respondent or is retrievable from the internet server those records are to be produced and/or disclosed to the appellant;

b. That if records of the complaint response to Miss Rhonda Sheehy are determined to have been disposed of and are irretrievable, then the First Respondent is to provide to the appellant with a clear and detailed explanation setting out:

i. What form the complaint response took; and

ii. How records of the complaint response came to purportedly not be properly retained in RM8; and

iii. How the complaint response came to be purportedly disposed of.

c. Legal Aid Queensland’s submissions to the Office of the Information Commissioner (OIC) dated 22 August 2019 in relation to External Review 314484;

d. The preliminary assessment by the Office of the Information Commissioner (OIC) in relation to External Review 314609 sent to Legal Aid Queensland, which LAQ then subsequently accepted;

e. All communications between Legal Aid Queensland and Crown Law in relation to:

i. The external investigation conducted by Barrister Group Consultants in Sept/October 2018;

ii. OIC ER 314484 and LAQ’s submissions to the OIC dated 22 August 2019 for ER 314484;

iii. The Public Interest Disclosure (PID) lodged by the appellant with LAQ on or around 18 May 2019 and LAQ’s preliminary assessment of that PID dated on or around 17 July 2019;

iv. Victimisation Contentions Three (3) and Four (4) as outlined in the appellant’s Form 85A filed in QIRC proceedings AD/2019/67.

f. Phone records of internal calls (from one LAQ office number to another LAQ office number) as follows:

i. Phone calls received on 8 May 2018 by Jessica Dean from Nicky Davies or a LAQ HR staff member; and

ii. Phone calls on 9 May 2018 between Jessica Dean and Lyndi Hawkings-Guy between 8:30am and 10am; and

iii. Phone calls on 8 October 2018 between Jessica Dean and Lyndi Hawkings-Guy from 12pm until 8:45am on 9 October 2018.”

  1. [10]
    There is also an application by Ms Mohr-Edgar to adduce further evidence on the appeal.  I shall refer to that application (at least to the extent necessary) in due course.
  2. [11]
    The grounds of appeal are complicated and numerous.  The outlines of argument are complicated and lengthy.  Both in the QIRC and in this Court there was reference to the rules concerning third party production notices and attendance notices.  It is unnecessary to consider those matters.  As will be seen, it is unnecessary to descend into an analysis of the grounds of appeal.  Some of the documents are not in existence and the appeal can otherwise be determined on considerations of relevance.

The Notice requiring Non-Party Production against Telstra

  1. [12]
    The notice against Telstra sought these documents, relevantly:

“Phone Records:

May 2018:

  1. The following records of phone communications are sought for the period 8-9 May 2018 inclusive:

a. All incoming/inbound phone communications received by the following numbers including all phone calls received from external (outside of the Legal Aid Queensland network) and internal phone numbers (other numbers within the Legal Aid Queensland network) and including the date, time and duration of each communication:

i. Jessica Dean (07 3917 0447);

ii. Lyndi Hawkings-Guy (07 3917 0576);

October 2018:

  1. The following records of phone communications are sought for the period 8-9 October 2018 inclusive:

a. All incoming/in bound phone communications received by the following numbers including all phone calls received by external (outside of the legal Aid Queensland network) and internal phone numbers (other numbers within the Legal Aid Queensland network) and including the date, time and duration of each communication:

i. Jessica Dean (07 3917 0447);

ii. Lyndi Hawkings-Guy (07 3917 0576).”

  1. [13]
    Attachment A to the notice explained the relevance of the documents.  The documents are alleged to be relevant to “Victimisation Complaint 1” and “Victimisation Complaint 3”. 
  2. [14]
    Ms Mohr-Edgar applied for a position within Legal Aid in 2016.  She suffered from anxiety.  Put briefly she says that she was discriminated against in relation to that attribute.  When another position became available Ms Mohr-Edgar applied for that position.  That led to the circumstances of Victimisation Complaint 1 and Victimisation Complaint 3. 

The victimisation complaints

  1. [15]
    A statement of facts and contentions (SOFC) has been filed by Ms Mohr-Edgar in the QIRC.  That is conveniently compartmentalised  into factual allegations and legal and other contentions.
  2. [16]
    The factual basis of Victimisation Complaint 1 is alleged as follows in the SOFC as:

“Victimisation Complaint One

Causal Nexus:

  1. On 6 April 2018 I lodged a complaint with the ADCQ.  On 4 May 2018 I was interviewed for the PO4 position VRN 27/18.  My resume listed my current supervisor Principal Lawyer Jessica Dean and previous supervisor Lyndi Hawkings-Guy as referees as well as another previous supervisor Kyle Terrance.
  1. On 8 May 2018 I sent an email at 9:21am to Ms Davies.  My email informed Ms Davies that I’d lodged a complaint with the ADCQ and I attached a copy of the document titled ‘ADCQ’, which I had lodged with the ADCQ.  Ms Davies forwarded my email titled ‘ADCQ’ dated 8 May 2018 to HR Manager Ms Camden at 9:32am on Tuesday, 8 May 2018.  Ms Davies then sent a calendar invitation to Ms Camden.  At 10:34am on Tuesday, 8 May 2018 Ms Camden sent Ms Davies an email accepting this meeting calendar invitation for 9 May 2018.  Ms Camden does not work on Tuesdays.  I assert that Ms Hutchings or another HR staff member made enquiries in relation to the ADCQ complaint in Ms Camden’s absence.  Both Ms Hutchings and Ms Davies have a commitment in their outlook calendar at 2pm on 8 May 2018.
  1. My direct supervisor Ms Dean was in her office for all or most of 8 May 2018.  Shortly after I had sent my email to Ms Davies Ms Dean started receiving phone calls.  She closed her office door and spent most of the day taking phone calls.  I know this because although her office door was closed the soundproofing is not foolproof.  I assert she received phone calls from either HR staff or Ms Davies in relation to the ADCQ complaint I had emailed to Ms Davies.
  1. I recall that I was in the office for most of 8 May 2018.  When I did see Ms Dean emerge from her office during the day she appeared to be a bit stressed and angry.  When Ms Townshend asked her how she was later in the afternoon after Ms Townshend had returned to the office Ms Dean replied with words to the effect ‘quite stressed, actually.’  In the late afternoon of 8 May 2018 after Ms Townshend had returned to the office she asked me which of the two out of the three referees that I had nominated on my resume did I want to be contacted.  Ms Townshend was the Panel Chair for the selection panel for the PO4 Child Protection Lawyer recruitment process.  Ms Townshend told me that Ms Dean would need to be one of the referees as she was my current supervisor.  I told her words to the effect that I would prefer Ms Terrance but that she might be unavailable since I didn’t have her personal contact details and if she wasn’t available then I would rely on Ms Hawkings-Guy as my referee.

Threatened to do an Act:

  1. I was in the office at my workstation on the morning of 9 May 2018.  Ms Dean arrived and went into her office at or around 8:30am.
  1. Between 8:30am and 10am on Wednesday, 9 May 2018 Ms Dean received a phone call from Ms Hawkings-Guy.  I know this because I recall Ms Dean referring to Ms Hawkings-Guy by her first name ‘Lyndi’.  Ms Dean’s office door was open and her part of the phone conversation was clearly audible from my workstation.  During this phone conversation Ms Dean stated the following phrases in the following order:

a. ‘she’ll be gone from here tomorrow.’

b. ‘I’m not doing mine.’

c. ‘HR just need to finalise some stuff.’

d. ‘Out of Family Law Services.’

e. ‘Telling her tomorrow.’

f. ‘Going to be horrendous.’

  1. I understood ‘she’ and ‘her’ to refer to me.  I understood ‘here’ to mean the Child Protection Team.  I understood ‘mine’ to refer to the two referee reports that were required for the PO4 Child Protection Lawyer recruitment process.
  1. I understood Ms Dean’s overheard comments to Ms Hawkings-Guy to be the communication of a threat to transfer me out of Family Law Services because of the ADCQ complaint that I had lodged on 6 April 2018 and given notice to the first respondent about on 8 May 2018 via my email to Ms Davies.
  1. There was no other reason to communicate a threat to transfer me out of Family Law Services.  There were no work performance issues, no disciplinary processes, no reasonable management action against me, and no adverse audit results.  In short, there were no concerns at all that had been expressed with me about my attendance, ability to perform my role responsibilities, quality of the casework that I conducted or the suitability of me as a team member in the Child Protection team or in Family Law Services generally.  There could be no other person that Ms Dean’s comments referred to.  There was no-one in the Child Protection Team that left the team or was transferred out of the team around this time.

Detriment:

  1. I was in a state of panic after overhearing this threatened transfer of me out of Family Law Services.  Overhearing Ms Dean’s threatened transfer comments during her telephone conversation with Ms Hawkings-Guy caused me considerable stress and anxiety.  I would have been devastated about being transferred out of Family Law Services.  Ms Dean was aware that I would be distressed about being transferred out of Family Law Services.  She stated in her conversation to Ms Hawkings-Guy ‘telling her tomorrow’ and ‘going to be horrendous’.  The only thing that I could think to do that would prevent a threatened transfer of me out of Family Law Services was for me to offer to withdraw my ADCQ complaint.
  1. Shortly after at 12pm, I approached Ms Davies in her office.  I immediately referred to the email that I sent her and blurted out that I was sorry for having sent it to her and for having made the complaint to the ADCQ.  I told her straightaway that I would withdraw the ADCQ complaint.  I repeatedly stated numerous times during my brief conversation with Ms Davies that I would withdraw the ADCQ complaint.  There is no other reason or explanation why I would send Ms Davies’ an email giving her notice that I had lodged a complaint with the ADCQ then just over 24 hours later be in tears in her office repeatedly stating that I would withdraw the ADCQ complaint unless something prompted or triggered this reaction.
  1. Ms Davies repeatedly stated during our brief conversation words to the effect that ‘this was the first she knew about anxiety’.  Ms Davies sent herself an email on 9 May 2018 at 3:09pm filenoting the conversation that we had had.  Ms Davies’ email stated ‘Sandra seemed upset.  I invited her to take a seat and she indicated that she was sorry.  I said what for?  Sandra replied for the email I sent yesterday, I shouldn’t have sent it, I am sorry and I will withdraw the complaint.  Sandra was teary.  I indicated that there was material in the document that indicated I thought that she suffered from anxiety and that was the first I had seen of a reference to anxiety.  I said that I did not think that she had anxiety.  Sandra was tearful throughout the meeting which lasted between 10 and 15 minutes’.
  1. I was fearful of being transferred out of Family Law Services to the extent that I couldn’t even articulate this fear to Ms Davies during the meeting particularly in the distressed state that I was in.  I struggled to be able to concentrate on anything other than the intense feelings of panic, fear and despair that I felt following the overheard phone conversation.  My heart was pounding, I was shaky and nervous to the point of being constantly on the verge of tears.
  1. On 10 May 2018 I took sick leave due to the exacerbated anxiety I was still experiencing.  I sent an email to Ms Dean that stated ‘Hi Jess, I think I’ve been the cause of a lot of stress to you this week.  I want you to know that I’m very sorry for that.…  I’ve spoken to Nicky and apologised and told her that I would withdraw it.’  Ms Dean did not respond to this email or make any enquiries with me as to what I meant.”
  1. [17]
    The legal and other contentions advanced by Ms Mohr-Edgar in the SOFC in relation to Victimisation Complaint 1 are:

“Victimisation Complaint One – 8-9 May 2018 (Threatened transfer):

  1. That on 9 May 2018 in contravention of Section 129 of the AD Act 1991 the first respondent Legal Aid Queensland, through its employees specifically Ms Dean, victimised the complainant.
  1. That on 9 May 2018 in contravention of Section 130 of the AD Act 1991 the first respondent Legal Aid Queensland, through its employees specifically Ms Dean:

a. Threatened to do an act by communicating a threat for the complainant to be transferred out of Family Law Services during her phone conversation with Ms Hawkings-Guy on 9 May 2018 between 8:30am and 10am; and

b. The threatened act was to the detriment of the complainant because it caused the complainant distress and to be fearful and anxious; and

c. The complainant was involved in proceedings under the AD Act as she had lodged a complaint with the ADCQ on 6 April 2018 against the first respondent and given notice to the first respondent of this ADCQ complaint on 8 May 2018; and

d. The threatened act by Ms Dean was because of the complainant’s involvement under the AD Act.  Ms Dean was engaged in a number of phone conversations on 8 May 2018 alleged to be in relation to the ADCQ complaint that the complainant emailed to Ms Davies on 8 May 2018.  And at some point prior to Ms Dean’s phone conversation with Ms Hawkings-Guy on 9 May 2018 Ms Dean formed the view that the complainant would be transferred out of Family Law Services.  There was no other reason for a transfer of the complainant out of Family Law Services to be threatened.”

  1. [18]
    An internal investigation was conducted in relation to Ms Mohr-Edgar’s complaints.  The facts alleged by Ms Mohr-Edgar in relation to Victimisation Complaint 3 and Victimisation Complaint 4, which is closely related, are:

“Victimisation Complaints Three and Four:

Did an Act:

  1. On or around 8 or 9 October 2018 Ms Dean and Ms Hawkings-Guy colluded about the evidence that they would provide to the external investigator ahead of Ms Hawkings-Guy’s interview with the external investigator on or around 9 October 2018.
  1. Ms Dean and Ms Hawkings-Guy provided false and/or misleading statements to the external investigator in late September/early October 2018 by stating that the threatened transfer comments that Ms Dean made to Ms Hawkings-Guy during their phone conversation on 9 May 2018 were about transferring a client file from Ms Hawkings-Guy to Ms Dean.

Causal Nexus:

  1. In or around 9 July 2018 I sent an email to Ms Davies attaching a document that set out the circumstances of the victimisation complaint as a WHS issue.  The first respondent did not respond to my victimisation concerns.  On 1 or 2 August 2018 I submitted a WHS incident form in relation to 9 May phone conversation outlining that this had caused me considerable stress.  In this WHS incident form I listed the incident as ‘discrimination/victimisation’.  The WHS form was submitted to Ms Dean.
  1. In September 2018 the first respondent briefed an external investigator.  Ms Dean, Ms Hawkings-Guy and Ms Davies were interviewed as part of this external investigation.  All of these persons were sent letters by the first respondent outlining the allegation that would be investigated.  The letters to Ms Dean, Ms Hawkings-Guy and Ms Davies all stated ‘On or around 9 May 2018 LAQ (through its employees) intended to transfer Ms Mohr-Edgar out of Family Law Services, to the detriment of Ms Mohr-Edgar, because Ms Mohr Edgar had lodged a complaint with the Anti-Discrimination Commission Queensland (dated 6 April 2018).’  The letters to Ms Dean, Ms Hawkings-Guy and Ms Davies were all marked ‘private and confidential’ and the contents of the letters informed these persons ‘you are required to keep the matters the subject of this letter confidential’.
  1. On 8 October 2018 at 12:41pm Ms Camden sent Ms Hawkings-Guy an email informing her of the details of my victimisation complaint.  Ms Camden stated in her email ‘To help you prepare for the interview, it may be useful to see the details of the complaint where you were named as a witness.  9 May 2018 – it is alleged that my supervisor Jessica Dean received a phone call from Lyndi Hawkings-Guy prior to 10am on this date.  As her office door was open Jessica Dean’s part of the conversation was audible from my work station.  It is alleged that this conversation included words to the effect:

a. ‘She’ll be gone from here tomorrow.’

b. “I’m not doing mine.’

c. ‘HR just need to finalise some stuff.’

d. ‘Out of Family Law Services.’

e. ‘Telling her in a meeting tomorrow.’

f. ‘Going to be horrendous.’

  1. Ms Hawkings-Guy was interviewed by the external investigator on or around 9 October 2018.
  1. On the afternoon of on or around 8 or 9 October 2018 Ms Dean had a phone conversation in her office.  I assert that this conversation was with Ms Hawkings-Guy ahead of her interview with the external investigator on or around 9 October 2018.  I assert that Ms Dean and Ms Hawkings-Guy colluded about the evidence that Ms Hawkings-Guy would provide to the external investigator in her interview to ensure that her version of events was consistent with Ms Dean’s evidence.  Ms Dean had already completed her interview statement with the external investigator on or around 22 September 2018.
  1. I outlined my concern about collusion between Ms Dean and Ms Hawkings-Guy in my interview statement to the external investigator and the inappropriateness of witnesses discussing what evidence they will give.  I requested that phone records be obtained if the phone conversation between Ms Dean and Ms Hawkings-Guy was disputed.  To the best of my knowledge, the external investigator made no attempt to obtain phone records as I had requested.  I am able to produce a copy of my interview statement.
  1. The external investigation report dated September/October 2018 stated ‘Ms Dean was also informed that Ms Mohr-Edgar had reported that she had formed this view, about being transferred, largely due to overhearing an apparent telephone conversation between Ms Dean and another person.  Ms Dean then advised that she had intended to raise this issue at this interview as she had become aware from a complaint document, which was not included with her letter from HR about this investigation, that she supposedly had had a conversation with someone, possibly Ms Lyndi Hawkings-Guy.  Ms Dean said it was reported that she had said words to the effect ‘transfer out’ and that it was in reference to Ms Mohr-Edgar.’
  1. The external investigation report indicated that Ms Dean stated to the external investigator ‘Ms Dean further stated that if there was any conversation where the words quoted by Ms Mohr-Edgar were used and it was not behind closed doors it would be more likely to be regarding the transfer of a client/case and usually any meetings she has to do with this type of situation are not pleasant or comfortable.  Ms Dean said she does recall that around that time there was a situation of this nature occurring and so if she did speak to Ms Hawkings-Guy it would have been about that; certainly not about Ms Mohr-Edgar.’
  1. The external investigation report indicated that Ms Hawkings-Guy stated to the external investigator ‘At interview Ms Hawkings-Guy was advised that she may have been a party to a conversation with Ms Dean about transferring a case and that it was a ‘horrendous’ situation or words to that effect and this may have been the conversation overheard by Ms Mohr-Edgar and which she had taken to reference Ms Mohr-Edgar being transferred out of Family Law Services.  Ms Hawkings-Guy said she did recall a conversation of that nature with Ms Dean and it involved a child protection matter; the circumstances were certainly horrendous and the client required special needs and support around her mental health etc.  Ms Hawkings-Guy said she believes she had emailed Ms Dean regarding this client/case and Ms Dean had subsequently called her and they had discussed transferring the case.  Ms Hawkings-Guy also said that in terms of Ms Mohr-Edgar being transferred she did not know anything about that but it would be very unusual and it hardly ever happens and as such it is quite possible the conversation Ms Mohr-Edgar claimed she overheard is the one Ms Hawkings-Guy had had with Ms Dean about the transfer of the client.’
  1. I lodged a RTI application on 23 November 2018 seeking access to documents in relation to the phone conversation between Ms Dean and Ms Hawkings-Guy on 9 May 2018.  Ms Hawkings-Guy responded to the RTI Officer in an email dated 26 November 2018 at 2:29pm ‘Hi Suzie, I have checked back through my emails and I do not appear to have any documents which fall within the scope of Sandra’s request.’  Ms Dean responded to the RTI Officer in a email dated 29 November 2018 and provided copies of emails relevant to the investigation and a copy of her interview summary statement.  I was refused access to her interview statement by the RTI Officer.  Ms Dean further stated in her email dated 29 November 2018 ‘I do not have any further documents sought in Sandra’s application.’
  1. I lodged a further RTI application on 21 December 2018 that included in the documents sought phone records and documents confirming communications between them during 8-10 May 2018 and 8-9 October 2018.  In an email dated 10 January 2019 Ms Hawkings-Guy responded to the RTI officer ‘I have conducted searches as best I can and have not been able to locate any email correspondence, phone records or any phone attendance notes, file notes or any other document relating to these matters.’  Ms Dean responded in an email dated 18 January 2019 to the RTI officer ‘I do not have any emails or file notes/phone attendance notes relating to phone communication with Lyndi Hawkings-Guy between 8-9 October 2018 or 8-10 May 2018.’
  1. I lodged a further RTI application on 23 April 2019 that sought the documents and records on the relevant client file that Ms Dean and Ms Hawkings-Guy to the external investigator they had discussed.  The documents that I sought were documents that would substantiate such a transfer of a client file if one genuinely occurred.  I also emailed Ms Hawkings-Guy directly on 7 May 2019 seeking information from Ms Hawkings-Guy about the client and client file that Ms Hawkings-Guy indicated to the external investigator that she had discussed with Ms Dean during the phone conversation in May 2018.  My email stated ‘Could you please identify the client and relevant client file number that you discussed with Jessica Dean on 9 May 2018 and later referred to in your interview with the external investigator?’  On 15 May 2019 Ms Hawkings-Guy responded to my email and stated ‘I refer to your request for me to identify the client and relevant file number.  I have been advised that it is not appropriate to give out such client information.  From a privacy perspective, it may be confidential and attract privilege.  And in any event, I do not know, have or hold the information in order to be able to give it.’
  1. On 14 February 2019 I submitted a Reply to respondents’ Section 138 submissions with the ADCQ.  In that Reply I suggested false and/or misleading statements had been provided and I indicated the manner in which Legal Aid Queensland should have correctly and ethically handled these circumstances.  The first respondent did not in any way acknowledge my concerns.
  1. In relation to the External Reviews 314484 and 314513 with the OIC, LAQ sent a response to the OIC.  In LAQ’s response, a further version of events was offered as a reason for the lack of any records of a client transfer between Ms Hawkings-Guy to Ms Dean.  In LAQ’s response it is stated:

a. Ms Dean recalled the client’s matter and that her file for the client closed in early 2018 but it appeared likely that the client would require further legal representation in the future.  The client also sought further assistance from LAQ by way of legal advice.  Ms Dean referred the client to get legal advice on domestic violence issues from the Violence Protection and Women’s Advocacy teams and provided legal advice on child protection issues to the client.

b. Ms Dean and Ms Hawkings-Guy recall having a discussion about a possible transfer of the file to Ms Hawkings-Guy should the client require further legal representation.  Subsequently the client re-applied for legal aid but sought representation from a LAQ external service provider so an actual transfer from Ms Dean to Ms Hawkings-Guy was never required and never occurred.

c. The search certificates completed by Ms Dean and Ms Hawkings-Guy set out the action taken by them to search for documents.  Both Ms Dean and Ms Hawkings-Guy do not have records of an email sent by Ms Hawkings-Guy around this time of the purported conversation.  This is unremarkable as such an email would be of a transitory nature and would not be required to be kept.  As no actual transfer actually occurred, no documents about a transfer would exist.

d. Furthermore, while Ms Dean indicated that the telephone conversation in relation to this particular client could possible have been the conversation which Ms Mohr-Edgar overheard neither she nor Ms Hawkings-Guy stated that it was definitely was the purported conversation.

e. LAQ had undertaken further searches in regard to this client and these searches show legal advice on domestic violence issues was provided to the client by a LAQ lawyer (not Ms Hawkings-Guy) on 6 March 2018 and then by Ms Hawkings-Guy 2 July 2018 and advice was provided to the client on child protection issues by Ms Dean on 4 July 2018.  Accordingly it is not clear whether or not the conversation between Ms Dean and Ms Hawkings-Guy about this client is the conversation which Ms Mohr Edgar overheard.

  1. The OIC sent me a preliminary assessment in relation to External Reviews 314484 and 314513 on 3 October 2019.  In this correspondence the OIC stated ‘factors favouring disclosure arise where disclosure of the information could reasonably be expected to:

a. Allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;

b. Reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct; and

c. Reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.

  1. I have carefully considered the information which LAQ has released to you.  I consider its disclosure advances the above public interest factors identified by you significantly.’

Detriment:

  1. Ms Dean and Ms Hawkings-Guy’s false and/or misleading statements lead the external investigator to conclude that there was ‘no evidence’ to substantiate victimisation complaint 1 and 2.  A ‘no evidence’ outcome to the external investigation report adversely affects my prospects of proving victimisation complaints 1 and 2 in the QIRC proceedings.
  1. Ms Dean and Ms Hawkings-Guy’s collusion to engage in dishonest behaviour lead to an unjust outcome in the external investigation.  I have outlined below in this document the distress and disillusionment caused to me by my direct supervisors betraying the trust I had in them and acting unethically and dishonestly.”
  1. [19]
    The legal and other contentions advanced by Ms Mohr-Edgar in relation to Victimisation Complaints 3 and 4[7] are:

“Victimisation Complaint Three – September – October 2018 (Collusion between witnesses):

  1. That in or around September-October 2018 in contravention of Section 129 of the Anti-Discrimination Act 1991 the first respondent Legal Aid Queensland, through its employees specifically Ms Dean and Ms Hawkings-Guy, victimised the complainant.
  1. That in or around September-October 2018 in contravention of Section 130 of the Anti-Discrimination Act 1991 the first respondent Legal Aid Queensland, through its employees specifically Ms Dean and Ms Hawkings-Guy:

a. Did an act by colluding about the evidence that Ms Hawkings-Guy would give in her interview statement to the external investigator prior to Ms Hawkings-Guy’s interview with the external investigator on or around 9 October 2018; and

b. The act was to the detriment of the complainant because it adversely affected the complainant’s prospects of proving victimisation complaint 1 and it caused offence, hurt, distress, exacerbated anxiety, disillusionment and distrust; and

c. The complainant was involved in proceedings under the Act as she had lodged a complaint with the ADCQ on 6 April 2018 against the first respondent which had been accepted by the ADCQ in or around July or August 2018 and Ms Dean and Ms Hawkings-Guy were informed that the complainant had lodged an ADCQ complaint; and

d. The first respondent, through its employees specifically Ms Dean and Ms Hawkings-Guy, did the act because the complainant was involved in proceedings under the AD Act 1991.  Ms Dean and Ms Hawkings-Guy were advised that the complainant had made an ADCQ complaint, that there would be an external investigation and to treat the matter as private and confidential, and were provided with the complainant’s details of the victimisation complaint to be investigated. Ms Dean and Ms Hawkings-Guy are alleged to have had a phone conversation on or around 8 or 9 October 2018 prior to Ms Hawkings-Guy’s interview with the external investigator on or around 9 October 2018 and it is alleged that during that phone conversation they discussed the evidence that Ms Hawkings-Guy would provide to the external investigator to ensure that it was consistent with Ms Dean’s version of events provided in or around late September 2018.

The appeal

The non-party production notice against Telstra

  1. [20]
    What is sought on appeal are records of telephone calls between Jessica Dean, Nicky Davies, Lyndi Hawkings-Guy and Legal Aid Queensland Human Resources staff members.  All these records are of internal calls within Legal Aid said to have occurred on 8 or 9 May 2018.
  2. [21]
    The evidence is that Telstra does not have records of internal calls within Telstra.  If such records exist, they are held within the Legal Aid telephone system and may be in the possession of Legal Aid.  That fact must lead to the dismissal of the appeal insofar as the non-party production notice against Telstra is concerned.

The attendance notice against Legal Aid

Categories a. and b.; the complaint of Ms Rhonda Sheehy

  1. [22]
    Documents in categories a. and b.[8] concern a complaint made by Miss Rhonda Sheehy made in 2016.  That was a complaint made against Ms Mohr-Edgar.  Legal Aid responded to Ms Sheehy’s complaint.  It is that response which Ms Mohr-Edgar seeks.
  2. [23]
    Legal Aid’s position is that despite investigations the document cannot be located.
  3. [24]
    The Industrial Commissioner made two findings in relation to the complaint response, namely:
  1. it was not relevant to Ms Mohr-Edgar’s case;[9] and
  2. it was not in the possession of Legal Aid.[10]
  1. [25]
    On appeal, Ms Mohr-Edgar challenged the finding of a lack of relevance.  She submits that it is relevant to the genuine occupational requirements exemption relied upon by Legal Aid in defence of her victimisation complaints.
  2. [26]
    However, whether or not that is correct, Ms Mohr-Edgar is faced with the factual finding that the document is not in the possession of Legal Aid.  That factual finding seems open and is not infected by any error of law.
  3. [27]
    Ms Mohr-Edgar’s point is that, given Legal Aid’s internal policies and obligations, the complaint response should be in its possession.  The evidence is, though, that it isn’t in Legal Aid’s possession or under its control.
  4. [28]
    There must be some evidence beyond mere suspicion that a party has not given proper disclosure to justify orders requiring further action by the party making disclosure.[11]
  5. [29]
    As earlier observed, Ms Mohr-Edgar seeks to introduce new evidence.  That new evidence is, as it relates to the category a. and b. documents:

“l. The assessment in August 2020 by Queensland State Archives (QSA) of LAQ’s purported disposal of public records without proper authorisation or destruction of evidence required for legal proceedings (the complaint response) as a ‘level one suspected corrupt conduct’ Public Interest Disclosure (PID) and referral by the Crime and Corruption Commission (CCC) of this PID to LAQ to deal with subject to Public Interest Review by the CCC[12].”

  1. [30]
    As any inquiry being conducted by the Crime and Corruption Commission into the disposal of the complaint response is ongoing, the relief which Ms Mohr-Edgar seeks on appeal is effectively conditional upon it being discovered that the document either is in the possession or control of Legal Aid or is otherwise retrievable from the internet server.
  2. [31]
    There are real problems with the admission of fresh evidence on an appeal such as the present.
  3. [32]
    Firstly, while there is power to admit fresh evidence,[13] the appeal is limited to grounds of error of law or jurisdiction.[14]  As observed in Turay v Workers’ Compensation Regulator:[15]

“[52] Construing the 2016 IR Act as a whole, and giving meaning to all provisions,[16] s 567 provides that when the Court is hearing grounds of appeal limited to errors of law or jurisdiction,[17] the Court receives the record below and any further evidence by leave. Receipt of the evidence is for the purpose of discerning error of law or jurisdiction, not for determining whether factual findings were soundly made, and not for determining whether inferences which were drawn were open.” (emphasis added)

  1. [33]
    The Industrial Commissioner found that Legal Aid did not have the document.  There is presently no evidence to the contrary.  At best, if the new evidence is accepted on appeal, there is a prospect that at some point some evidence may be discovered which contradicts Legal Aid’s assertion that they do not have the document.  If such evidence emerges, then (subject to relevance, which I need not decide now) Ms Mohr-Edgar might seek further disclosure.  Such evidence will not show that the QIRC erred.  It acted on the evidence before it.
  2. [34]
    In the meantime, the new evidence is not relevant to any issue on appeal in relation to the documents in categories a. and b.  Its admission should not be allowed.  Further, as the finding that Legal Aid does not have the document is not one that can be disturbed on appeal, the Industrial Commissioner’s determination must stand. 

Document c. - Legal Aid’s submissions in review ER 314484

  1. [35]
    By application lodged with Legal Aid on 17 December 2018, Ms Mohr-Edgar sought access to documents held by Legal Aid.  A decision notice in response to that application was given to Ms Mohr-Edgar on 7 February 2019.  A review of that decision was sought.  In the course of that review, both Ms Mohr-Edgar and Legal Aid made submissions. 
  2. [36]
    The external review became known as ER 314484.  In her attendance notice to produce, Ms Mohr-Edgar sought production of various documents the subject of ER 314484.  She now only seeks production of the submissions made by Legal Aid on the review.  It was common ground before the QIRC and on appeal that the Legal Aid response is likely to include an explanation of the subject matter of the communication of 9 May 2018. 
  3. [37]
    In the investigation of Ms Mohr-Edgar’s complaint, Legal Aid maintain that the subject matter of any conversation on 9 May 2018 was in relation to client files.  Ms Mohr-Edgar says that it was a conversation about moving her.
  4. [38]
    In the QIRC, the notice was set aside as regards the documents sought in relation to ER 314484.  This was for two reasons:
  1. The request was too wide and therefore was a “fishing expedition”.[18]
  2. The documents were not relevant to a fact in issue.[19]
  1. [39]
    As to the finding of fishing, Ms Mohr-Edgar has now limited her request to one document.  It is not said that the document does not exist and it is not said that it is not in the possession of Legal Aid.
  2. [40]
    For reasons which follow, the QIRC has erred in determining that the submission by Legal Aid (being one of the documents originally requested) was not relevant.  Therefore, this Court has the jurisdiction to make any order which the QIRC could have made.  Where the document is identified and, for the reasons which follow, it can be established to be relevant, Ms Mohr-Edgar is not fishing when she seeks production of it.
  3. [41]
    The finding of a lack of relevance by the QIRC seems to have been upon acceptance of a submission made by Legal Aid recorded in the judgment as:

“[69] The Respondent says that this category of documents aims to prove that the conversation on 9 May 2018 was not about the client file but about something else, namely a threat to move her. However, proving what the conversation was not about, does not prove that it was in fact in relation to what she claims it was about.”

  1. [42]
    To be relevant, a document does not have to in itself prove the case of the party seeking production of it.  It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.[20]
  2. [43]
    Here, a fact in issue between the parties is the content of the conversation of 9 May 2018.  Ms Mohr-Edgar asserts that the subject of the conversation was her being moved.  Legal Aid says the subject of the conversation was client files.  Evidence which tends to disprove the position of one party does, in fact, assist the proof by the other party of its contrary position.  That is because, logically, in proving a particular position, a party disproves a contrary position.  Put another way, if there are two competing positions and one is disproved, the likelihood of the other being found to be correct is enhanced.
  3. [44]
    Ms Mohr-Edgar should have access to Legal Aid’s submission.

Document d. - preliminary assessment of the OIR in ER 314609

  1. [45]
    This relates to Victimisation Complaint 5.
  2. [46]
    An application for access to information was made by Ms Mohr-Edgar on 23 April 2019.  Legal Aid’s Information Officer, Ms Brandt, determined the application was non‑compliant.
  3. [47]
    Ms Mohr-Edgar alleges that Ms Brandt’s decision was motivated so as to discriminate against her.
  4. [48]
    Ms Mohr-Edgar lodged an external review which became ER 314609.  That review met with some success.  At paragraph [105] of the SOFC, Ms Mohr-Edgar said:

“105. I lodged an external review request with the OIC in relation to the RTI Officer Ms Brandt’s decision to find my RTI application non-compliant. On 27 September 2019 the OIC sent me a letter in relation to this external review. This letter from the OIC stated ‘As advised, OIC had recently received a response from Legal Aid Queensland (LAQ). LAQ have today confirmed that it accepts my preliminary view that your access application dated 23 April 2019 is compliant with the requirements of section 24(2)(b) of the Right to Information Act 2009 (QLD) (RTI Act) and is therefore prepared to deal with the access application.”

  1. [49]
    The preliminary assessment of the OIR in ER 314609 was one of a category of documents that was sought by the notice.  Like document c., the notice was set aside in relation to that category for two reasons:
  1. the request was too wide and was therefore a “fishing expedition”; and
  2. the documents were not relevant to a fact in issue.
  1. [50]
    As with document c., Ms Mohr-Edgar has limited her request to one document, being the preliminary assessment.  It is not said that the document does not exist and it is not said that it is not in the possession of Legal Aid.
  2. [51]
    For reasons which follow, the QIRC has erred in determining that the document was not relevant.  It follows that this Court has jurisdiction to make any order which the QIRC could have made.  Where the document is identified and, for the reasons which follow, it can be established to be relevant, Ms Mohr-Edgar is not fishing when she seeks production of it.
  3. [52]
    On appeal, Legal Aid accepted that the preliminary assessment was referred to in the SOFC and then submitted:

“82. Of course, a mere reference to a document does not make it relevant to an issue in dispute. The fact of the ER 314609 Preliminary Assessment is not an issue in dispute. The appellant’s focus on this document misconceives the issue which is central to Victimisation Contention Five - which is not whether the OIC reached a different preliminary view to Ms Brandt, but whether Ms Brandt’s assessment of the appellant’s RTI request was motivated by the appellant’s discrimination complaint.”

  1. [53]
    True it is that “the issue which is central to Victimisation Contention Five” is whether Ms Brandt’s assessment was motivated by discriminatory factors.  It does not, though, follow that the determination of the OIC is not relevant. 
  2. [54]
    It can be seen that the chronology is:
  1. Ms Mohr-Edgar lodged the external review;
  2. the OIC formed a preliminary view that Ms Brandt is wrong and that Ms Mohr-Edgar’s request was compliant; and
  3. importantly, Legal Aid accepted that Ms Brandt was wrong when she said that the request was non-compliant.
  1. [55]
    Ms Mohr-Edgar proving that Ms Brandt’s decision was wrong, does not necessarily prove that Ms Brandt was motivated to discriminate against Ms Mohr-Edgar.  However, whether the decision was wrong is clearly relevant to Ms Mohr-Edgar’s allegations.  It would be difficult to mount a discrimination case on the basis of a correct categorisation of the application as non-compliant.  Further, by accepting the preliminary view, Legal Aid has arguably admitted that Ms Brandt’s decision was wrong.
  2. [56]
    The preliminary assessment, in the context of an admission of its correctness, is directly relevant to Victimisation Complaint 5 and Ms Mohr-Edgar should have access to the document.

Document e. - communications between Legal Aid and the Crown Solicitor’s office

  1. [57]
    The communications between Legal Aid and the Crown Solicitor’s office were not sought at first instance, but the documents are sought on appeal.[21]  The respondent submits that this Court has no jurisdiction to entertain Ms Mohr-Edgar’s claim for the documents.
  2. [58]
    Chapter 11 of the Industrial Relations Act 2016 (IR Act 2016) concerns “industrial tribunals and the registry”.  For present purposes, this Court and the QIRC are both “industrial tribunals”.
  3. [59]
    This Court is established as a superior court of record by s 407 of the IR Act 2016.  It is though a superior court of limited jurisdiction with no inherent powers.[22]
  4. [60]
    While this Court does not have inherent jurisdiction, it does have implied powers.  In Application by Brenda Atkinson to search and take copies of documents,[23] this Court was asked to make orders concerning documents which had come into the possession of the QIRC pursuant to powers exercised by it.  President Hall found:

“In my view it is settled that as a statutory tribunal the Industrial Court of Queensland has no inherent jurisdiction, see Hawkins Road Transport Pty Ltd v Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) (1999) 161 QGIG 108 and WorkCover Queensland v Trever Ernest Markwell (No. 2) (2001) 165 QGIG 351. It may be acknowledged that the grant of various statutory powers to a court of statutory creation carries with it, by implication, the power to do that which is incidental to the exercise of the power, see Jackson v Sterling Industries Limited (1987) 162 CLR 612 and NCSC v Bankers Trust Australia Limited (1989) 91 ALR 321. However, the implication of a power to alter orders of the Queensland Industrial Relations Commission is not necessary to give efficacy to the various powers vested in the Industrial Court of Queensland.”[24]

  1. [61]
    The jurisdiction of this Court is vested by s 424 of the IR Act 2016, as follows:

“424 Jurisdiction and powers

  1. The court may—
  1. perform all functions and exercise all powers given to the court under this Act or another Act; and
  1. hear and decide, and give its opinion on, a matter referred to it by the commission; and
  1. hear and decide an offence against this Act, unless this Act provides otherwise; and
  1. hear and decide appeals from an industrial magistrate’s decision in proceedings for—
  1. an offence against this Act; or
  1. recovery of damages, or other amounts, under this Act; and
  1. if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—
  1. the commission and magistrates exercise their jurisdictions according to law; and
  1. the commission and magistrates do not exceed their jurisdictions.
  1. In proceedings, the court may—
  1. make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
  1. give directions about the hearing of a matter.
  1. The court’s jurisdiction is not limited, by implication, by a provision of this Act or another Act.
  1. The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.”
  1. [62]
    Questions concerning disclosure of documents passing between Legal Aid and the Crown have not been referred to this Court by the QIRC,[25] do not concern an offence against the IR Act 2016[26] and do not arise in an appeal from an industrial magistrate.[27]  No application is made for prerogative orders.[28]
  2. [63]
    Therefore, this Court’s only jurisdiction, relevantly here, is that bestowed by either the IR Act 2016 or another Act.[29]
  3. [64]
    The AD Act vests jurisdiction to hear complaints both on the Queensland Civil and Administrative Tribunal and the QIRC depending upon whether or not the complaint is “work related”.[30]  No provision in the AD Act vests jurisdiction upon this Court.
  4. [65]
    The only jurisdiction vested in this Court to hear matters arising under the AD Act are the provisions which allow appeals to this Court from the QIRC.  By those provisions,[31] this Court may hear an appeal from a decision of the QIRC.
  5. [66]
    The grounds of appeal are prescribed by s 557.[32]  Appeals are limited to those based on grounds of error or law or excess or want of jurisdiction[33] except by leave, and leave may only be given where it is in the public interest to do so.[34]
  6. [67]
    An appeal, by its very nature, is a proceeding to correct error.[35]  If the QIRC was not asked to rule on the documents, it cannot be said to have committed an error of law or exceeded its jurisdiction.[36]
  7. [68]
    This Court does not have jurisdiction to consider what is, in effect, an initiating application for specific disclosure.

Documents f. - phone records of internal calls

  1. [69]
    As earlier observed, Telstra do not hold these records.  If they exist, they are held by Legal Aid.  The parties embarked upon detailed and complicated arguments as to whether the Industrial Commissioner erred in setting aside the attendance notice as it related to these records.
  2. [70]
    However, during the course of argument, it became apparent that Legal Aid do not in fact hold the records.  If that is so, the whole exercise becomes pointless. 
  3. [71]
    I shall order that within fourteen days a responsible officer of Legal Aid shall swear and file an affidavit deposing to whether the following records are in the possession or control of Legal Aid:
  1. Internal calls received on 8 May 2018 by Jessica Dean from Nicky Davies or any Legal Aid HR staff member.
  2. Calls on 9 May 2018 between Jessica Dean and Lyndi Hawkings-Guy between 8.30 am and 10.00 am.
  3. Calls on 8 October 2018 between Jessica Dean and Lyndi Hawkings-Guy from 12.00 pm until 8.45 am on 9 October 2018.

Conclusions and orders

  1. [72]
    Ms Mohr-Edgar has had partial success and should obtain orders.  Otherwise, the appeal ought to be dismissed.
  2. [73]
    It is ordered:
  1. Within 14 days, the respondent produce to the appellant:
  1. a copy of any written submissions made by it in review ER 314484;
  1. a copy of preliminary assessment ER 314609.
  1. Within 14 days, the respondent shall file and serve upon the appellant an affidavit sworn by a responsible officer of the respondent deposing to whether the following records are in the possession or control of the respondent:
  1. Internal calls received on 8 May 2018 by Jessica Dean from Nicky Davies or any Legal Aid HR staff member.
  1. Calls on 9 May 2018 between Jessica Dean and Lyndi Hawkings-Guy between 8.30 am and 10.00 am.
  1. Calls on 8 October 2018 between Jessica Dean and Lyndi Hawkings-Guy from 12.00 pm until 8.45 am on 9 October 2018.
  1. The appeal is otherwise dismissed.

Footnotes

[1]Industrial (Tribunals) Rules 2011, r 64B, referred to in various documents as a “non-party disclosure notice”.

[2]Industrial (Tribunals) Rules 2011, r 58.

[3]Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185.  This was incorrectly published showing the State as the respondent when Legal Aid Queensland is a corporate entity established by s 41 of the Legal Aid Queensland Act 1997.

[4]The word ‘the’ was included in error.

[5]ICL is a reference to Independent Children’s Lawyer.

[6]Industrial (Tribunals) Rules 2011, r 46.

[7]Victimisation complaint 4 is closely related to victimisation complaint 3.

[8]See paragraph [9].

[9]Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185 at [51].

[10]At [52].

[11]Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276 at [8] and [10].

[12]The reference to CCC is a reference to the Crime and Corruption Commission.

[13]Industrial Relations Act 2016, s 567(2).

[14]Industrial Relations Act 2016, s 557(1).

[15][2023] ICQ 013.

[16]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[17]Industrial Relations Act 2016, s 557(1).

[18]Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185 at [71] and [76].

[19]At [69]-[74].

[20]Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276 at 282-3 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323 at [45].

[21]T 1-26.

[22]Hawkins Road Transport Pty Ltd v Transport Workers’ Union of Australia, Union of Employees [1999] QIC 20; 161 QGIG 108 and NQEA Australia Pty Ltd v Dare (No 2); NQEA Australia Pty Ltd v Dare (No 3) [2003] ICQ 61; (2004) 175 QGIG 17.

[23][2001] ICQ 30; (2001) 167 QGIG 182.

[24]And see also DJL v Central Authority (2000) 201 CLR 226 followed in Allesch v Maunz (2000) 203 CLR 172.

[25]Section 424(1)(b).

[26]Section 424(1)(c).

[27]Section 424(1)(d).

[28]Section 424(1)(e).

[29]Section 424(1)(a).

[30]Anti-Discrimination Act 1991, s 164A.

[31]Industrial Relations Act 2016, ss 557-559.

[32]As modified by Division 5, Part 6 of Chapter 11; ss 563-567.

[33]Section 557(1).

[34]Section 565.

[35]CDJ v VAJ (1998) 197 CLR 172 at [111] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14].

[36]Dhanhoa v The Queen (2003) 217 CLR 1 at [49].

Close

Editorial Notes

  • Published Case Name:

    Mohr-Edgar v Legal Aid Queensland

  • Shortened Case Name:

    Mohr-Edgar v Legal Aid Queensland

  • MNC:

    [2023] ICQ 25

  • Court:

    ICQ

  • Judge(s):

    Davis, President

  • Date:

    01 Nov 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Allesch v Maunz [2000] HCA 40
1 citation
Jump To
Cite 1 - [2000] HCA 40
Application by Brenda Atkinson to search and take copies of documents [2001] ICQ 30
2 citations
Jump To
Cite 1 - [2001] ICQ 30
Cite 2 - [2001] ICQ 30
CDJ v VAJ (1998) 197 CLR 172
2 citations
Jump To
Cite 1 - (1998) 197 CLR 172
Cite 2 - (1998) 197 CLR 172
CDJ v VAJ (1998) HCA 67
1 citation
Jump To
Cite 1 - (1998) HCA 67
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
1 citation
Jump To
Cite 1 - [2000] HCA 47
Decision Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia [1999] QIC 20
2 citations
Jump To
Cite 1 - [1999] QIC 20
Cite 2 - [1999] QIC 20
Dhanhoa v R [2003] HCA 40
1 citation
Jump To
Cite 1 - [2003] HCA 40
Dhanhoa v The Queen (2003) 217 CLR 1
2 citations
Jump To
Cite 1 - (2003) 217 CLR 1
Cite 2 - (2003) 217 CLR 1
DJL v The Central Authority (2000) 201 CLR 226
2 citations
Jump To
Cite 1 - (2000) 201 CLR 226
Cite 2 - (2000) 201 CLR 226
DJL v The Central Authority [2000] HCA 17
1 citation
Jump To
Cite 1 - [2000] HCA 17
Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (1999) 161 QGIG 108
1 citation
Jump To
Cite 1 - (1999) 161 QGIG 108
Jackson v Sterling Industries Ltd (1987) 162 C.L.R 612
1 citation
Jump To
Cite 1 - (1987) 162 C.L.R 612
Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2) [2020] QIRC 185
4 citations
Jump To
Cite 1 - [2020] QIRC 185
Cite 2 - [2020] QIRC 185
Cite 3 - [2020] QIRC 185
Cite 4 - [2020] QIRC 185
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 91 ALR 321
1 citation
Jump To
Cite 1 - (1989) 91 ALR 321
NQEA Australia Pty Ltd v Dare (No 2) (2004) 175 QGIG 17
2 citations
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Cite 1 - (2004) 175 QGIG 17
Cite 2 - (2004) 175 QGIG 17
NQEA Australia Pty Ltd v Dare (No. 2); NQEA Australia Pty Ltd v Dare (No. 3) [2003] ICQ 61
2 citations
Jump To
Cite 1 - [2003] ICQ 61
Cite 2 - [2003] ICQ 61
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
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Cite 1 - (1998) 194 C.L.R 355
Re Brenda Atkinson (2001) 167 QGIG 182
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 182
Cite 2 - (2001) 167 QGIG 182
Turay v Workers' Compensation Regulator [2023] ICQ 13
2 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
4 citations
Jump To
Cite 1 - [1999] QCA 276
Cite 2 - [2001] 1 Qd R 276
Cite 3 - [2001] 1 Qd R 276
Cite 4 - [2001] 1 Qd R 276
WorkCover Queensland v Trevor Ernest Markwell (No.2) (2001) 165 QGIG 351
1 citation
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Cite 1 - (2001) 165 QGIG 351
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

Case NameFull CitationFrequency
AB v Workers' Compensation Regulator [2025] QIRC 1132 citations
Chen v Gold Coast Hospital and Health Service [2024] ICQ 12 citations
Nicholls v State of Queensland (Department of Child Safety) [2024] QIRC 1712 citations
Parmar v State of Queensland (Queensland Health) [2024] QIRC 1172 citations
Phillips v State of Queensland (Department of Transport and Main Roads (No. 2) [2024] QIRC 1382 citations
Plumb v Rockhampton Regional Council (No. 3) [2025] QIRC 1892 citations
Smith & Sherlock v State of Queensland (Queensland Health) (No. 5) [2024] QIRC 1212 citations
Smith v State of Queensland (Queensland Health) (No. 4) [2024] QIRC 672 citations
Smith v State of Queensland (Queensland Health) (No.4) [2024] QIRC 1982 citations
Smith v Workers' Compensation Regulator [2025] QIRC 1051 citation
State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 1793 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2025] QIRC 2033 citations
Zarin Amavand v Kanjini Co-Op Ltd [2025] QIRC 862 citations
1

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