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Baragan v State of Queensland & Ors[2019] QCAT 119

Baragan v State of Queensland & Ors[2019] QCAT 119

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Baragan v State of Queensland & Ors [2019] QCAT 119

PARTIES:

DORIN BARAGAN

(Applicant)

v

STATE OF QUEENSLAND

PAUL STEWART

LAWRIE STURGESS

DAVID WINTER

DAVID CUSKELLY

DARRYL DUNLOP

(Respondents)

APPLICATION NO/S:

ADL043–16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

1 May 2019

HEARING DATE:

21 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

  1. The Complaint is amended to comprise the items of the Schedule filed on 29 March 2018 which are specified in these Orders.
  2. The items of the Schedule filed on 29 March 2018 which are specified in these Orders are to proceed to hearing.
  3. The items of the Schedule filed on 29 March 2018 which are specified in these Orders are as follows:

1, 2, 3, 4, 5, 6, 6(a), 7, 8, 8(a), 8(b), 8(c), 9, 9(a), 9(b), 9(c), 9(d), 10, 10(a), 10(b), 11, 47.

  1. The matter is to be set for a Directions Hearing at a time and date to be advised.

CATCHWORDS:

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – public interest disclosure – other matters – where a person allegedly made disclosures to a public authority and suffered reprisals - where the original complaint referred by the Anti-Discrimination Commission Queensland was sought to be significantly extended – whether the referred complaint should be amended, and to what extent

Anti-Discrimination Act 1991 (Qld)

Public Interest Disclosure Act 2010 (Qld)

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Murdoch QC and C Martin of Counsel, instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    Mr Baragan is a police officer with the Queensland Police Service. He has named members of the police service as Respondents in this matter.
  2. [2]
    The complaints originate from Mr Baragan’s employment at the Upper Mount Gravatt Police Station in the Child Protection and Investigation Unit.
  3. [3]
    A reprisal complaint by Mr Baragan, under the Public Interest Disclosure Act 2010 (Qld), was referred to the Tribunal under section 166 of the Anti-Discrimination Act 1991 (Qld), on 13 June 2016.
  4. [4]
    Leave has been granted to all parties to be legally represented in the proceedings.
  5. [5]
    A non-publication order was made by the Tribunal on 17 November 2016 as follows:

The names and any identifying information about any children referred to in the Anti-Discrimination Commission referral documents, and in documents filed in the Tribunal by the parties, are to be kept anonymous, and are not to be disclosed to any persons apart from the parties in this proceeding.

  1. [6]
    Numerous directions were made by the Tribunal from 17 November 2016 to
    12 October 2017 in relation to steps in the proceedings, including the filing of statements of evidence.
  2. [7]
    Mr Baragan filed a statement of evidence on 12 October 2017, of 35 pages together with two folders of material.
  3. [8]
    The Respondents filed an application for miscellaneous matters on 31 October 2017 requesting that the Tribunal make an order to excise parts of the applicant’s statement of evidence dated 12 October 2017 that were irrelevant to the contentions.
  4. [9]
    Directions were made on 16 February 2018 requiring Mr Baragan to give a schedule of public interest disclosures and resulting reprisals, having the following columns:

Column 1 – item number

Column 2 – date (of public interest disclosure)

Column 3 – description (of public interest disclosure)

Column 4 – to whom (the public interest disclosure) was made

Column 5 – reference to evidence or documents proving the public interest disclosure

Column 6 – reprisal (because of the public interest disclosure) giving the date of the reprisal, its description and who did it

Column 7 – the injury, loss and damage which is said to arise from the reprisal

Column 8 – whether the Respondents object to this item

  1. [10]
    The Respondents were to fill out column 8. Mr Baragan filed the schedule on 29 March 2018 (referred to as ‘the schedule’ in these reasons).
  2. [11]
    I gave directions on 3 October 2018 that the determination as to which items set out in the schedule of Mr Baragan filed 29 March 2018 were to proceed to hearing, would be made after an oral hearing.
  3. [12]
    I heard the application at an oral hearing on 21 November 2018.

The schedule of public interest disclosures and resulting reprisals

  1. [13]
    The schedule comprises 56 pages. There are 49 items listed. Some of the items have sub-items. The total amount of costs and damages claimed is $3,301,914.
  2. [14]
    A list was handed up at the hearing of people against whom allegations of reprisal are made. The list refers to 63 items (which may include the sub-items). There are 30 people named against whom allegations of reprisal are made. They include people from the following organisations:
    1. Department of Children’s Services – 2 people
    2. Queensland Police Service – 21 people
    3. Crime and Corruption Commission – 3 people
    4. WorkCover – 2 people
    5. Queensland Police Union of Employees – 2 people

Respondents’ submissions and objections to the schedule

  1. [15]
    The Respondents complied with the direction to complete column eight of the schedule, but filed an explanatory note on 20 April 2018 as to the difficulties they had in doing so. At that time they noted objections to all items:

12. On the basis of what the Respondents have discerned, the Respondents object to each of the 63 items in the applicant’s schedule on various grounds. Four objections are common to almost every item: jurisdictional objections that the alleged reprisal was not included in the referred complaint and that the alleged reprisal occurred more than 1 year before the making of the complaint: and procedural objections based on failure to comply with the Tribunal’s direction and resulting unfairness to the Respondents. The Respondents raise a further jurisdictional objection in respect of certain items which are incapable of resulting in a finding of reprisal because they either fail to disclose anything which could amount to a PID or fail to disclose anything which could amount to a detriment caused to the applicant because he made a PID.

  1. [16]
    The Crown Solicitor subsequently filed submissions on 13 July 2018 on behalf of all Respondents in relation to the application to excise items in the schedule. In those submissions, the respondents expanded their objections, and identified the specific items in groups, and submitted that the entire proceeding should be struck out:[1]

[4] The Respondents submit that the Tribunal ought to find that none of the 63 items in the applicant’s schedule is before the Tribunal. The respondent’s object to each of the 63 items in the schedule for various reasons. Two objections are common to many of the items: jurisdictional objections that (1) the alleged reprisal was not included in the referred complaint, and (2) that the alleged reprisal occurred more than 1 year before the making of the complaint. The Respondents raise a further jurisdictional objection in respect of certain items which are incapable of resulting in a finding of reprisal because they fail to disclose anything which could amount to a “reprisal” within the meaning of that term in s 40 of the Public Interest Disclosure Act 2010 (Qld) (PID act).

[5] Forty-seven of the 63 items ought to be excluded because they were not included in the referred complaint: items 5, 7, 9(a), 9(b), 9(c), 9(d), 10(b), 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 49(a), 49(b), 49(c), 49(d) (New Allegations).

[6] Forty-nine of the 63 items ought to be excluded because they are out of time: items 1,2, 3, 4, 5, 6, 6(a), 7, 8, 8(a), 8(b), 8(c), 9(a), 9(b), 9(c), 9(d), 10, 10(a), 10(b), 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 (Out-of-Time Allegations)

[7] Thirty-three of the 63 items ought to be excluded because they are incapable of being found to be reprisals: items 9(a), 9(B), 9(c), 10(d), 12, 13, 14, 15, 16, 17, 20, 21, 23, 25, 26, 27, 28, 29, 30, 32, 34, 37, 39, 40, 43, 44,46, 47, 48, 49, 49(a), 49(b), 49(c) and 49(d) (Doomed-to-Fail Allegations)

[8] If the Tribunal accepts the respondent’s submissions and finds that none of the 63 items is before the Tribunal, the entire proceeding will be without substance, and ought to therefore be struck out pursuant to s 47 (1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT act).

The new allegations

  1. [17]
    The Respondents submit that the Tribunal’s jurisdiction is conditional on the referral to it of a complaint complying with section 136 of the Anti-Discrimination Act 1991 (Qld).[2]
  2. [18]
    The Respondents object to Mr Baragan relying as part of his case on each item in the schedule which raises allegations of reprisals which did not form part of the complaint which was referred to the Tribunal.[3]
  3. [19]
    The Respondents submit that Mr Baragan does not repudiate the characterisation of the new allegations as ones which are not included in the referred complaint, and submit that he must be taken to accept that characterisation as new allegations.
  4. [20]
    The Respondents submit that it would be inappropriate for the Tribunal to exercise its discretion under s 178 to allow amendment, as it would be contrary to the just and expeditious hearing of the matters in dispute, and would incur unnecessary inconvenience and additional costs to the Respondents,[4] and that there should be a ‘filtering’ process through the ADCQ which includes conciliation.[5]
  5. [21]
    The Respondents submit that Mr Baragan would still have the ability to complain about the new allegations to the ADCQ, if amendment was not allowed.[6]
  6. [22]
    The Respondents noted that Mr Baragan asserts that he did not include the new allegations in this complaint to the ADCQ because his police union representatives ‘actively prevented’ him from doing so, and warned him that he would ‘lose all financial and legal union support in the litigation’ if he contacted the ADCQ about the new allegations.
  7. [23]
    The Respondents note that Mr Baragan makes several other allegations of misconduct against his former representatives at paragraphs 43 to 51, and 54 to 64 of his submissions, which are made in submissions only, and are not supported by any affidavit or other evidence, and ought not be given any credence.[7]
  8. [24]
    The Respondents note that there is a suggestion at paragraphs 61 to 64 of Mr Baragan’s submissions that the Respondents accepted an agreement sought by the union on his behalf that he would not complain about certain matters, but does not identify which of the new allegations were the subject of the alleged agreement. The Respondents deny that there was any agreement as suggested.[8]

Out of time allegations

  1. [25]
    The Respondents submit that allegations were out of time when the complaint was made with the ADCQ:[9]

[25] The applicant filed his complaint with the ADCQ on 3 July 2015. The referred complaint was accepted by the ADCQ on 21 January 2016 notwithstanding that it contained allegations of reprisal alleged to have occurred more than 1 year before the applicant made the complaint on 3 July 2015.

[26] The applicant’s submissions do not contend that the respondent’s identification of the first 49 items as out of time is incorrect. Accordingly, the Tribunal should treat those 49 items as out of time because they relate to allegations of reprisal action allegedly taken more than 1 year before the applicant’s complaint to the ADCQ on 3 July 2015.

  1. [26]
    The Respondents refer to the schedule, and say that it is confusing, as in many instances the date of the alleged reprisal is shown as the same date as the alleged public interest disclosure, and say that does not follow. It also refers to reprisals as ‘continuing to this day’ which cannot be correct in light of the reprisal descriptions.[10]
  2. [27]
    The Respondents say that the Tribunal has to consider the matters under section 175(2) of the Anti-Discrimination Act 1991 (Qld), to deal with referred complaints made more than one year after the alleged contraventions. Those matters include unfairness to the Respondents.
  3. [28]
    The Respondents submit that unfairness would result to them, as considerable time has passed since the earliest alleged reprisal took place, and the passage of that lengthy period of time is likely to have adversely affected the memories of the Respondents and witnesses.[11] Further, they note that at least two witnesses, Inspectors Rodney Kemp and Shane Dall-Osto, are now unavailable because they are deceased, and would have been important witnesses because several alleged disclosures were allegedly made to them.[12]
  4. [29]
    The Respondents submit that all parties would be disadvantaged by the increased cost associated with running the longer and more complicated trial which acceptance of all the out of time allegations would entail.[13]
  5. [30]
    The Respondents submit there would be limited prejudice to the applicant in refusing to deal with the complaint under section 175 (2) because Mr Baragan could commence proceedings under section 42 of the Public Interest Disclosure Act 2010 (Qld).[14]

Doomed to fail allegations

  1. [31]
    The Respondents submit that the ‘doomed to fail’ items contain descriptions of reprisals which on the facts asserted by Mr Baragan cannot lead to a finding of reprisal, as they fail to describe the reprisals in terms which could be interpreted as disclosing both of the necessary elements of a reprisal as defined by section 40 of the Public Interest Disclosure Act 2010 (Qld).[15] They describe the necessary elements as follows:

[40] The necessary elements are that:

  1. (a)
    A respondent caused (or attempted or conspired to cause) detriment to another person;
  1. (b)
    The respondent caused the detriment because (or because the respondent believed that):

i. The other person or someone else made, or intended to make, a PID

ii. The other person or someone else is, has been, or intended to be, involved in a proceeding under the PID act against a person.

  1. [32]
    The Respondents submit that the items in the schedule contain reprisal descriptions which fail to describe anything like a detriment and a causative link to a public interest disclosure.

Mr Baragan’s submissions as to the schedule

  1. [33]
    Mr Baragan filed submissions on 14 June 2018 addressing the objections of the Respondents to the items in the schedule.
  2. [34]
    Mr Baragan submits that the schedule was drawn up to deal with multiple allegations spanning across some six years, and that the very format of the table compels him to list public interest disclosures in the order of events, and then move to the next item and so on.[16]
  3. [35]
    Mr Baragan submits that a reprisal can be constituted by an omission, and for this reason the schedule lists consequences:[17]

[21] Other factors contributing to the apparent complexity of the Schedule include the element of reprisal by the Respondents as omissions to act according to statutory requirements. One persistent theme throughout the schedule shows that the Respondents have repeatedly failed to record the applicant’s PID as he made them. The maladministration of these PIDs throughout the entire period constitutes reprisal in its own right and goes to the direct detriment of the applicant whom, in the absence of such formally recorded PIDs was unlawfully denied the rightful opportunity to claim immunity in subsequent discovery actions taken by the Respondents against it. So the effect of reprisal becomes compounded throughout this period and the schedule adequately reflects this fact.

  1. [36]
    Mr Baragan submits that he would have brought the new allegations earlier, but that his union representative excluded them:[18]

[43] Much of the current material brought in allegation by the applicant (i.e.: specifically as contained in his previously submitted ‘Statement of Evidence’ and later in his ‘Schedule Of Reprisals’) was amply known of, and known to his Queensland Police Union legal representative who, instead of including these in support of his original application with the commission to hear any ‘out of time allegations’ worked to exclude them from evidentiary relevance altogether and did so in spite of the applicants expressed concerns.

[44] At the time of making his out of time application, the applicant relied solely upon the advice of his Police Union legal representative whom he had entrusted to protect his legal interests in this matter. Suffice to say that when his solicitor’s application with the commission was made, the applicant had already expressed concern and objected to his lawyer that none of the allegations presently produced were being mentioned in the application, especially so as these represented the substance of his case.

  1. [37]
    Mr Baragan includes in his submissions the text of an email sent by him to his union representative on 13 November 2015 where he expressed concern that the submission prepared by the union in its present form did not adequately address the request made by the commission for an application to include ‘out of time’ allegations.[19]
  2. [38]
    Mr Baragan also includes the text of an email from the conciliator at the ADCQ to his union representative, dated 6 August 2015, which indicates that Mr Baragan had told her there were more things he would like to include in his complaint.[20]
  3. [39]
    Mr Baragan alleges in his submissions that the union ‘applied for the out of time allegations with the commission and shaped their application so as to protect their union members from any possible involvement in subsequent proceedings’.[21]
  4. [40]
    Mr Baragan summarises why the new allegations were not made as follows:[22]

[52] So, to address the respondent’s jurisdictional objection concerning these so-called ‘new’ allegations and explain why they were not included by the applicant with his original complaint made to the commission:

It was because the applicant was actively prevented from doing so by his very own Queensland Police Union solicitor who evidently did not act in his client’s best interest but rather in the interest of those members of the Police Union upon whom the weight of these serious allegations stood to be drawn into costly litigation against the Applicant at the Police Union’s expense. This of course being the applicant’s reasoning in hindsight.

  1. [41]
    Mr Baragan concluded his submissions with comments as to the justice of his situation:[23]

[84] The Respondents have unlawfully suppressed the allegations brought by the Applicant even when these were new and their memory was fresh. They did so at every opportunity and without exception. They did so to the applicant’s direct detriment and whilst he remained fully invested in the hope that the State’s lawful process would eventually kick in and finally protect him in accordance with the range of such guarantees of protection from reprisal enshrined in Statute.

[85] Because of all these reasons it would be manifestly unjust to exclude the scheduled allegations from the applicant’s claim. To do so in spite of the full range of circumstances and his over 800 pages of direct evidence already brought in support of his submissions to date, is to suppress that which the applicant had struggled for so long to bring to light in hoping that the state would offer him due remedy and protection.

[86] An investment in the pursuit for natural justice and fair arbitration assumes that no one should have the power to suppress from being heard, the truths upon which a man’s fate is to be decided. Yet this is precisely what the Respondents had intended for the applicant with their disciplinary process and now continually seek from the Tribunal with their repeated objections. The Applicant’s protection from the Respondents continued reprisal is clearly being made dependent upon his opportunity to expose the corrupt acts done to him by the Respondents in these current proceedings. The applicant’s allegations describe acts of police corruption which can only be adequately addressed upon their proper and full inclusion into evidence by the Tribunal.

Oral submissions and discussion

  1. [42]
    The complaint to the ADCQ was made on 3 July 2015. Section 175 of the Anti-Discrimination Act 1991 (Qld) provides as follows:

175 Time limit on referred complaints

  1. (1)
    The Tribunal must accept a complaint that is referred to it by the Commissioner, unless the complaint was made to the Commissioner more than 1 year after the alleged contravention of the Act.
  2. (2)
    If the complaint was made more than 1 year after the alleged contravention, the Tribunal may deal with a complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.
  1. [43]
    The Respondents submitted that any matters which arose before 3 July 2014 are therefore out of time and should not be dealt with by the Tribunal.
  2. [44]
    In oral submissions, the Respondents acknowledged that the Tribunal has a broad discretion under section 178 of the act to amend the complaint, which provides as follows:

178 Complaints may be amended

  1. (1)
    The Tribunal may allow complainant to amend a complaint.
  2. (2)
    Subsection (1) applies even if the amendment concerns matters not included in the complaint.
  1. [45]
    The Respondents’ counsel submitted that to proceed with all of the allegations contained in the schedule would effectively be a ‘roving Royal Commission’ over the years of Mr Baragan’s employment, which would become broad ranging, and take weeks to hear.
  2. [46]
    The Respondents submitted that 47 of the 63 items have not been the subject of complaint to the ADCQ, and that none of those have been through the conciliation process or the commission’s filtering process, and that Mr Baragan was trying to ‘step-over’ the ADCQ conciliation process.
  3. [47]
    The Respondents submitted that it was frivolous to say that the new claims fall within a proper description of a public interest disclosure, and that many of the new allegations do not set out enough detail to be considered, and that many of the allegations are so confused that they are difficult to understand.
  4. [48]
    The Respondents submit that none of the new allegations assert a detriment, and just recite grievances. It was submitted that many of the items are complaints as to how someone else acted, but don’t rise to the level of seriousness of a detriment.
  5. [49]
    The Respondents noted that Mr Baragan was facing disciplinary action.
  6. [50]
    The Respondents submit that the items lack particularity and should not be accepted, but that even if the new allegations were accepted, that many are doomed to fail.
  7. [51]
    Oral submissions were made by Mr Baragan, and by his partner Ms Green.
  8. [52]
    Ms Green submitted that Mr Baragan gets passionate, and that the more he complains, the more he is punished.
  9. [53]
    In the course of the hearing, I canvassed the possibility of referring the new allegations back to the ADCQ to consider. Mr Baragan said that he would object to that course.
  10. [54]
    Mr Baragan lodged an application with WorkCover dated 8 January 2013, in respect of an ‘adjustment disorder’ and ‘anxiety disorder’, alleged to have arisen in relation to a number of matters associated with his employment and the execution of his duties.[24] That application was rejected in a decision dated 4 April 2013.
  11. [55]
    Mr Baragan made a successful application to Q-Comp for review of the decision of WorkCover. Q-Comp set aside the decision of WorkCover to reject his application for compensation, and substituted a new decision on 16 September 2013 to accept the application for compensation.
  12. [56]
    Mr Baragan submitted a statement to Q-Comp which related the matter that appears to have been the precursor to the subsequent consequences which Mr Baragan complains of. That statement was as follows:[25]

On Monday 22nd of August 2011, I furnished to report to the Department of Child Safety. In this report I expressed concern that a 12-year-old girl had been unlawfully prevented from undergoing a proper medical examination subject to a Magistrate’s Order – pursuant to the provisions of the Child Protection Act.

That Monday afternoon prior to typing this report I contacted my officer in charge Detective Senior Sergeant Darryl Dunlop at his home and explained him the concerns I had for the safety of this child as well as the illegality committed by one DOCS official in obstructing a police officer from executing a Magisterial Order in ensuring a child’s welfare. The advice I received from my OIC at the time was to furnished (sic) a detailed report on or forward this by police email to himself, the Department of Child Safety and the Child Safety Regional Intake Centre.

  1. [57]
    The Q-Comp decision goes on to indicate that Mr Baragan indicated that he had consequently received a complaint against him in relation to his dealings with respect to DOCS:[26]

This complaint was made by staff at the Department of Child Safety at Mount Gravatt. My OIC D. Dunlop advised me of the existence of this complaint and directed me that I shall continue my duties from Morningside so as to allow for proper investigation into this complaint.

Dunlop then explained that chiefly, this complaint from UMG DOCS relates to the fact that I have contemplated a prosecution against one of their members and for which reason they refuse to work with me in the future.

In the following months I attended a formal interview at UMG with Inspector Kemp in relation to a complaint brought by UMG DOCS.

The statutory framework

  1. [58]
    A public interest disclosure is defined in  Section 11 of the Public Interest Disclosure Act 2010 (‘the Act’) as follows:

11 Meaning of public interest disclosure

A public interest disclosure is a disclosure under this chapter and includes all information and help given by the discloser to a proper authority for the disclosure.

Note – this chapter sets out requirements that the information that may be disclosed and who may disclose it, to whom, and how.

  1. [59]
    The Queensland Police Service is included by a note to the Act in section 6(1)(f) as a Department, and is therefore a public sector entity under section 6(1), and a proper authority under section 5(a). A public officer of a public sector entity is a member of the entity under section 7(1).
  2. [60]
    Mr Baragan, as a serving police officer, was therefore a public officer at all relevant times, for the purposes of the Act.
  3. [61]
    Section 13 of the Act provides as to disclosure by a public officer as follows:

13 Disclosure by a public officer

  1. (1)
    This section applies if a person who is a public officer has information about–
  1. (a)
    the conduct of another person that could, if proved, be –
  1. (i)
    corrupt conduct; or
  1. (ii)
    maladministration that adversely affects a person’s interest in a substantial and specific way; or
  1. (b)
    a substantial misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure); or
  1. (c)
    a substantial and specific danger to public health or safety; or
  1. (d)
    a substantial and specific danger to the environment.
  1. (2)
    The person may make a disclosure under section 17 in relation to the information to a proper authority.
  1. (3)
    For subsection (1), a person has information about the conduct of another person or another matter if –
  1. (a)
    the person honestly believes on reasonable grounds that the information tends to show the conduct or other matter; or
  1. (b)
    the information tends to show the conduct or other matter, regardless of whether the person honestly believes the information tends to show the conduct or other matter.
  1. [62]
    A disclosure may be made to a public sector entity, if the person is an officer of the entity (as Mr Baragan was, of the Queensland Police Service) to another person who directly or indirectly supervises or manages the person, under section 17(3)(d) of the Act.
  2. [63]
    A person who makes a public interest disclosure is granted immunity from liability under section 36 of the Act as follows:

36 Immunity from liability

A person who makes a public interest disclosure is not subject to any civil or criminal liability for any liability arising by way of administrative process, including disciplinary action, for making the disclosure.

  1. [64]
    Section 40(1) of the Act defines what constitutes a reprisal, as follows:

40 Reprisal and grounds for reprisals

  1. (1)
    A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that –
  1. (a)
    the other person or someone else has made, or intends to make, a public interest disclosure; or
  1. (b)
    the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.
  1. [65]
    Section 45 of the Act provides that reasonable management action is not prevented, as follows:

45 Reasonable management action not prevented

  1. (1)
    Nothing in this part is intended to prevent a manager from taking reasonable management action in relation to an employee who has made a public interest disclosure.
  1. (2)
    However, a manager may take reasonable management action in relation to an employee who has made a public interest disclosure only if the manager’s reasons for taking the action do not include the fact that the person has made the public interest disclosure.
  1. [66]
    Section 44(1) of the Act provides that a complaint about a reprisal may be made under the Anti-Discrimination Act 1991 (Qld).
  2. [67]
    The time limit in making complaints is provided for in section 138 of the Anti-Discrimination Act 1991 (Qld), as follows:

138 Time limit in making complaints

  1. (1)
    Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the act.
  1. (2)
    The Commissioner has a discretion to accept a complaint after 1 year has expired if the complaint shows good cause.

The schedule generally

  1. [68]
    Mr Baragan made a complaint to the ADCQ on 3 July 2015 as follows:[27]

[1] The complaint made is that of a reprisal pursuant to the Public Interest Disclosure Act. At this stage it is stated that the reprisal action includes but is not limited to:

  1. Moving Detective Baragan from Upper Mount Gravatt Station and not allowing him to return;
  2. Making a disciplinary and criminal complaint against Detective Baragan;
  3. Executing a search warrant on Detective Baragan’s home address;
  4. Commencing disciplinary action against Detective Baragan.
  1. [69]
    Mr Baragan later took issue with the completeness of this, and subsequently sought to expand the complaint.
  2. [70]
    The purpose of the schedule was to set out clearly the separate items which
    Mr Baragan alleges are public interest disclosures, and resulting reprisals for the various public interest disclosures.
  3. [71]
    The schedule is not structured in that way, but instead identifies numerous incidents and processes which occurred in the course of his service, and his complaints about them, and forms a narrative of his experiences. Many of the items in the schedule refer to evidence, and are not discrete public interest disclosures or identified reprisals.
  4. [72]
    The Respondents have identified two broad categories of objection to the items in the schedule – that they are not included in the referred complaint, and that the alleged reprisals occurred more than one year before the making of the referred complaint.
  5. [73]
    In many instances, if the matter were to proceed to hearing, the actions described by Mr Baragan would no doubt be argued to have been reasonable managerial actions, or personal responses or attitudes of other people that were a response to Mr Baragan’s personality or behaviour, but were not related to, or a consequence of, his public interest disclosures.
  6. [74]
    The central Public Interest Disclosure that Mr Baragan appears to be raising is as to his reporting the failure of a Department of Child Safety officer to pursue a medical examination of a minor.
  7. [75]
    The Respondents can only be required to respond to complaints which:
    1. are of a reprisal; and
    2. are either within the time provided for in the Anti-Discrimination Act 1991 (Qld), or within the time extended by the Tribunal.
  8. [76]
    The purpose of this interlocutory proceeding is to identify items in the schedule that allege public interest disclosures and reprisals, and should be allowed to continue, and to form the basis of the subsequent hearing.
  9. [77]
    Whilst this proceeding has not been expressed as an application for an extension of time, the effect of the submissions by the Respondents as to unfairness where the complaints were brought outside the time provided for in the Anti-Discrimination Act 1991 (Qld) is that they essentially object to Mr Baragan being given leave by the Tribunal to proceed with the complaints.
  10. [78]
    The Tribunal has power to extend time for the making of a complaint, and may do so in its own initiative. If I consider that items of the schedule should be considered for proceeding to hearing, then I will consider and decide whether an extension of time to make the complaint should be granted, and will do so upon my own initiative.
  11. [79]
    I will refer to each item in the schedule in turn.

The schedule items

  1. [80]
    Item 1 – 22 August 2011. This item is an allegation of a public interest disclosure. It is a description of the refusal of DOCS to allow the medical examination of a minor. It is consistent with the initial complaints made to ADCQ.
  2. [81]
    Item 2 – 23 August 2011. This item is an allegation of a public interest disclosure. It is a description of a conversation with another officer as to the merit and prospect of a prosecution against a DOCS worker. It is consistent with the initial complaints made to ADCQ.
  3. [82]
    Item 3 – this is expressed as ‘some six months later and early 2012’. This item is a reprisals allegation. It refers to the transfer of Mr Baragan to Morningside. It is consistent with the initial complaints made to ADCQ.
  4. [83]
    Item 4 – 16 March 2012. This item describes a disciplinary interview on 16 March 2012. It is consistent with the initial complaints made to ADCQ.
  5. [84]
    Item 5 – this is described as ‘days following the 17 September 2012’. This item is a reprisals allegation. It describes consequences which Mr Baragan alleges he was told he would face (of a recommendation not being supported for his detective appointment) if he did not agree to align with DOCS decisions in future, and to not again complain about or allege their misconduct.
  6. [85]
    Item 6 – 23 November 2012. This item is a reprisals allegation. It alleges that in the managerial meeting Mr Baragan was advised that he could not return to his previous work position as DOCS still refused to work with him.
  7. [86]
    Item 6 (a) – 23 November 2012. This item is a reprisals allegation. This continues on with matters related to item 6.
  8. [87]
    Item 7 – 23 November 2012. This item may be an allegation of a public interest disclosure. It describes events when Mr Baragan attended a meeting and alleged reprisals against him, and submits that those allegations themselves constitute public interest disclosures.
  9. [88]
    Item 8 – 28 November 2012. This item may be an allegation of a public interest disclosure. It records a meeting at police premises where Mr Baragan outlined the particulars of management’s reprisals against him, and submits that those allegations themselves constitute public interest disclosures.
  10. [89]
    Item 8(a) – 28 November 2012. This item may be an allegation of a public interest disclosure. This continues on with matters related to item 8.
  11. [90]
    Item 8(b) – 28 November 2012. This item may be an allegation of a public interest disclosure. This continues on with matters related to item 8.
  12. [91]
    Item 8(c) – 28 November 2012. This may be an allegation of a public interest disclosure. This continues on with matters related to item 8.
  13. [92]
    Item 9 – 13 December 2012. This item relates to the application by an officer to a magistrate for a search warrant of Mr Baragan’s home. It is consistent with the initial complaints made to ADCQ.
  14. [93]
    Item 9(a) – 13 December 2012. This item continues on with matters related to item 9.
  15. [94]
    Item 9(b) – 13 December 2012. This item continues on with matters related to item 9.
  16. [95]
    Item 9(c) - 13 December 2012. This item continues on with matters related to item 9.
  17. [96]
    Item 9(d) – 13 December 2012. This item continues on with matters related to item 9.
  18. [97]
    Item 10 – 14 December 2012. This item is a reprisals allegation. It relates to the actual execution of the search warrant at Mr Baragan’s home. It is consistent with the initial complaints made to ADCQ.
  19. [98]
    Item 10(a) – 14 December 2012. This item continues on with matters related to item 10.
  20. [99]
    Items 10(b) - 14 December 2012. This item continues on with matters related to item 10.
  21. [100]
    Item 11 – 17 December 2012. This item continues on with matters related to item 10. Mr Baragan again outlined to the police officer who had been involved in the obtaining and execution of the search warrant, the same public interest disclosures and reprisals that he had made at the time of the search.
  22. [101]
    Item 12 – expressed as ‘days following 17 December 2012’. This is not a reprisals allegation. It relates to Baragan asking a police officer for an update on the state of progress concerning his investigation.
  23. [102]
    Item 13 – expressed as ‘days following 13 December 2012’. This is not a reprisals allegation. It relates to Mr Baragan having a further conversations with the police officer as to the status of his investigation. Baragan submits as at this time that he resolved to form a complaint about the whole matter, involving DOCS, Mr Dunlop, Mr Kemp and Mr Winter, to the Crime and Misconduct Commission.
  24. [103]
    Item 14 – 19 December 2012. This item is a complaint to the Crime and Misconduct Commission about the alleged reprisals by the Queensland Police Service for the Public Interest Disclosures about the actions of the Department of Children’s Service.
  25. [104]
    Item 15 – 19 December 2012. This item continues on with matters related to item 14.
  26. [105]
    Item 16 – expressed as ‘days following 19 December 2012’. This item is referred to as a public interest disclosure of reprisal, complaining about the investigation of
    Mr Baragan’s complaints, but it is in reality a complaint as to the lack of proper procedure adopted for handling the investigation. It is not a new public interest disclosure or a new reprisals allegation.
  27. [106]
    Item 17 – 5 July 2013. This item is a further enquiry by Mr Baragan as to the status of his complaints. It is not a new public interest disclosure or a new reprisals allegation.
  28. [107]
    Item 18 – between 1 August 2013 and 15 August 2013. This is a conversation between Mr Baragan and the professional practice manager as to the investigation of the public interest disclosures that Mr Baragan had submitted to the crime and misconduct commission. It is not a new public interest disclosure or a reprisals allegation.
  29. [108]
    Item 19 – 15 August 2013. This item relates to an attempt by Mr Baragan to make a formal statement to an officer at the Coorparoo Police Station concerning previous reprisals against him. It is not a new public interest disclosure, or new reprisals allegation.
  30. [109]
    Item 20 – 15 August 2013. This item is a conversation between the professional practice manager and Mr Baragan, in which Mr Baragan protests the alleged instruction given to the officer at the Coorparoo Police Station not to take a formal statement from him.
  31. [110]
    Item 21 – 27 August 2013. This item relates to a conversation between an officer at QPS ethical standards and Mr Baragan, in which Mr Baragan raises concerns as to the investigation into his public interest disclosures.
  32. [111]
    Item 22 – 24 September 2013. This item relates to an email sent by Mr Baragan to the Queensland Police Service expressing concerns as to the investigation into his alleged misconduct.
  33. [112]
    Item 23 – 25 September 2013. This item relates to an email sent by Mr Baragan to the Queensland Police Service in relation to the allegation that he had unlawfully possessed a firearm in the office.
  34. [113]
    Item 24 – 8 October 2013. This item relates to a telephone conversation between
    Mr Baragan and the Ethical Standards State Complaints Coordinator as to the progress of investigations that were being conducted in relation to Mr Baragan’s complaints.
  35. [114]
    Item 25 – 11 October 2013. This item relates to a telephone conversation between
    Mr Baragan and the Ethical Standards State Complaints Coordinator where
    Mr Baragan seeks an update as to his complaints.
  36. [115]
    Item 26 – 24 October 2013. This item relates to an email sent by the Ethical Standards State Complaints Coordinator to Mr Baragan advising they have no record of certain complaints.
  37. [116]
    Item 27 – prior to 12 November 2013. This item relates to emails and conversation between Mr Baragan and the Ethical Standards State Complaints Coordinator and the Crime and Misconduct Commission as to complaints allegedly made by Mr Baragan.
  38. [117]
    Item 28 – 26 November 2013. This item is a telephone conversation between
    Mr Baragan and the Crime and Misconduct Commission in relation to his complaints.
  39. [118]
    Item 29 – 27 November 2013. This item is a conversation between Mr Baragan and a person at the Crime and Misconduct Commission as to the administration of his complaints.
  40. [119]
    Item 30 – 27 November 2013. This item is a separate conversation between
    Mr Baragan and another person at the Crime and Misconduct Commission as to the administration of his complaints.
  41. [120]
    Item 31 – 27 November 2013 to 30 November 2000. This item is as to a conversation between Mr Baragan and a person at the Crime and Misconduct Commission as to the administration of his complaints.
  42. [121]
    Item 32 – 27 November 2013 to 30 November 2013. This item is a separate conversation between Mr Baragan and an Assistant Director at the Crime and Misconduct Commission about the administration of his complaints.
  43. [122]
    Item 33 – 6 December 2013. This item relates to Mr Baragan’s attendance at the Holland Park police station in that day where he participated in a disciplinary interview. In the course of the interview Mr Baragan referred to his previous public interest disclosures as to the protection of a child, and to his previous complaints of reprisal.
  44. [123]
    Item 34 – 17 February 2014. This item refers to an email sent by Mr Baragan to the Chief Magistrate in Brisbane in relation to the Queensland Police Service and Crime and Misconduct Commission disciplinary process, and the search warrant.
  45. [124]
    Item 35 – 24 February 2014. This item refers to an email sent by Mr Baragan to the Health and Safety Office in relation to the disciplinary process which he refers to as the product of reprisal.
  46. [125]
    Item 36 – 28 February 2014. This item refers to a letter received by Mr Baragan from the Queensland Police Service advising that a comprehensive investigation into his public interest disclosures had been made by ethical standards, that the investigation was complete, and that no adverse findings were made against any of the subject officers.

It further refers to emails and telephone conversations between Mr Baragan and an officer at ethical standards, and relates to discontent by Mr Baragan with the conduct of investigation of his complaints, and with the outcome.

  1. [126]
    Item 37 – 24 April 2014. This item relates to emails between that Baragan and a person at Injury Management as to a direction given to Mr Baragan to attend a psychiatric medical examination, as an Assistant Commissioner had formed the view that
    Mr Baragan was incapable of performing policing duties.
  2. [127]
    Item 38 – 1 May 2014. This item relates to a further direction given to Mr Baragan to submit to a psychiatric examination. It is in the same category as item 37.
  3. [128]
    Item 39 – 2 May 2014. This item relates to emails between Mr Baragan and an acting Chief Superintendent, and Injury Management, as to advice that Mr Baragan was not to relate any further complaints of reprisal to Injury Management.
  4. [129]
    Item 40 – 31 July 2014. This item relates to an email sent by Mr Baragan to an Acting Inspector concerning management’s refusal to reintegrate Mr Baragan into a plain clothes role after he had succeeded in a Work Cover claim whereby management were deemed unreasonable in failing to return him to detective duties.

Mr Baragan was informed by management that his return to a plain clothes office was dependent on the outcome of the disciplinary process.

  1. [130]
    Item 41 – 7 August 2014. This item relates to a 53-page document submitted to WorkCover by Mr Baragan making numerous claims of reprisal.
  2. [131]
    Item 42 – 1 September 2014. This item relates to emails and conversations between Mr Baragan and his supervisor in relation to the detriment Mr Baragan alleges he was exposed to by management’s refusal to properly administer his public interest disclosures.
  3. [132]
    Item 43 – 11 September 2014. This item relates to an email from Mr Baragan to injury management in relation to false allegations made at the time of making the search warrant application. These are not new public interest disclosures or new reprisals allegation.
  4. [133]
    Item 44 – 13 October 2014. This item continues on from item 43, and relates to the search warrant application. It is not a new public interest disclosure or a new reprisals allegation.
  5. [134]
    Item 45 – days prior to 3 February 2015 this item relates to the conduct of the disciplinary process. It is not a new public interest disclosure or a new reprisals allegation.
  6. [135]
    Item 46 – 10 April 2015. This item relates to an application made by Mr Baragan seeking to disqualify the arbitrator in the disciplinary proceedings on the basis of bias. It also refers to discussions following a QCAT compulsory conference.
  7. [136]
    Item 47 – 29 June 2015. This item concerns jurisdictional submissions made by Mr Baragan’s solicitor submitting that the Queensland Police Service’s continued persistence in maintaining the disciplinary matters constitutes unlawful reprisal, as the disciplinary process arose from facts surrounding the unlawful disclosures made by officers to DOCS.

This item encompasses the disciplinary charges having been brought and maintained in reprisals to the public interest disclosures made by Mr Baragan.

It is consistent with the original complaints, and serves to describe the additional aggravation of the continuation of the disciplinary charges.

  1. [137]
    Item 48 – undated. This item says that it refers to all items 1-47. It refers to a notification that Mr Baragan received on 19 August 2017 from the Queensland Police service ethical standards unit that on 4 July 2017 he hacked the Queensland Police computer and made improper disclosures concerning a child to a person.
  2. [138]
    Item 48 submits that the complaint should have been referred to the Crime and Corruption Commission rather than to the Queensland Police Standards Ethical Standards Unit.
  3. [139]
    Item 49 – undated. This item says that it refers to all Items 1-47. It refers to discussions and conversations between Mr Baragan and another person in relation to the involvement of the Queensland Police Union of Employees and its legal representation of Mr Baragan.

This is not an allegation of reprisal by the Queensland Police Service or the State of Queensland or its employees. It is an allegation as to legal professional services which would be expected to be raised with the appropriate regulatory body.

  1. [140]
    Item 49(a) – undated. This item says that it refers to all items 1-47. It continues on from item 49. It is not an allegation of reprisal by the Queensland Police Service or the State of Queensland or its employees.
  2. [141]
    Item 49(b) – undated. This item says that it refers to all items 1-47. It continues on from item 49. It is not an allegation of reprisal by the Queensland Police Service or the State of Queensland or its employees.
  3. [142]
    Item 49(c) – undated. This item says that it refers to all items 1-47. This item refers to an email sent from the Queensland Police Union of employees to Mr Baragan advising that the union had withdrawn funding for legal proceedings in regard to his reprisal action, as funding for the civil legal proceedings falls outside the QPUE legal defence rules.

Mr Baragan submits that this email was received eight days before a scheduled hearing in QCAT. He submits that the Police Union’s involvement in the matter was extraordinary, and had been conducted through a desire to gain control of his claim, and to ensure that his evidence did not make it before the Tribunal nor succeed in exposing the truth of crimes committed by those union members whose interests they represent. It is not an allegation against the Respondents.

  1. [143]
    Item 49 (d) – undated. This item says that it refers to all items 1-47. It continues on from item 49. It is not a new allegation of reprisal by the Queensland Police Service or the State of Queensland or its employees.

Discussion

  1. [144]
    A considerable period of time has passed since the events of August 2001, when the initial matter of the refusal by DOCS to pursue the medical examination of a child, to which Mr Baragan took exception, took place.
  2. [145]
    Mr Baragan subsequently made public interest disclosures as to the actions of DOCS, and alleges that reprisals were taken against him for making those disclosures. He made a complaint to the ADCQ as to those matters.
  3. [146]
    Mr Baragan is seeking, by introducing and relying on the Schedule, to have further alleged public interest disclosures and reprisals heard by the Tribunal in these proceedings.
  4. [147]
    The effect of the schedule is to add new categories of reprisal to the initial complaints made to the ADCQ as follows:
    1. continuing the disciplinary action against Mr Baragan;
    2. the conduct of the Crime and Misconduct Commission (and its successor) in handling the complaints made by Mr Baragan; and
    3. the conduct of the Queensland Police Union of Employees in providing legal assistance to Mr Baragan.
  5. [148]
    The Respondents have objected to all items on the schedule proceeding to hearing.
  6. [149]
    Mr Baragan has never had the opportunity to have his original complaints tested at a hearing. Those complaints were put to the ADCQ, and went through the ‘filtering’ process of the Commission, including conciliation. Unless there is unfairness demonstrated to the Respondents, he is entitled to have his complaints heard.
  7. [150]
    The Respondents have submitted that unfairness to them would result, as considerable time has passed since the earliest alleged reprisal took place; the passage of that lengthy period of time is likely to have adversely affected the memories of the Respondents and witnesses; and that at least two of the witnesses (who would have been important witnesses because several alleged disclosures were allegedly made to them) are deceased.
  8. [151]
    It is unfortunate that the proceedings have taken so long. There have however been several intervening sets of references or proceedings, involving the Crime and Misconduct Commission (and its successor) and WorkCover, that have occupied intervening periods of time within that period.
  9. [152]
    The power of the Tribunal to allow a complaint under s 178 of the Anti-Discrimination Act 1991 (Qld) was discussed in Simonova v State of Queensland as follows:[28]

[20] It is uncontroversial, as the State of Queensland submits, that the AD Act provides that the tribunal must accept a complaint referred by the ADCQ commissioner, unless the complaint was made to the commissioner more than one year after the alleged contravention. That said, if the complaint referred was made more than one year after the alleged contravention, the tribunal may deal with it if it considers it would be reasonable to do so on the balance of fairness between the parties. Here, the commissioner’s referral is made on the basis that all allegations were made in time and none were rejected. Therefore, s 175(2) does not apply. The State of Queensland nevertheless argues that in considering whether to exercise the discretion pursuant to s 178, the Tribunal should have regard to similar fairness considerations as those contained in s 175(2).

[21] There is no apparent reason to constrain the Tribunal’s discretion to allow amendment of a complaint as provided by s 178 in the manner contended for by the State of Queensland. Pursuant to s 178(1), the tribunal may allow amendment to a complaint. The amendments that may be allowed are not limited or constrained in any way. Indeed, s 178(2) provides that s 178(1) applies even if the amendment concerns matters that are not included in the complaint. For example, in MM v State of Queensland, [2014] QCAT 478, amendment was allowed which re-characterised the basis of the complaint and allowed new (victimisation) claims to be brought.

[22] I agree with the broad construction adopted in MM v State of Queensland. Further, on a plain reading of the provision, the amendments the tribunal may in its discretion allow are broader than allegations made out of time. Rather than limiting the discretion in any way, it appears Parliament has in s 178(2) sought to make it expansive. Had the Parliament intended to circumscribe the broad discretion in s 178, it could have done so. For example, it constrained the commissioner’s discretion, provided for in s 138(2), to accept a complaint made outside of the one year time frame to circumstances in which a complainant shows good cause.

[23] The State of Queensland suggests in effect that similar considerations as contained in s 175(2) should be implied into s 178. However, as a matter of statutory construction there is no basis to imply constraining words into a provision that is clear and unambiguous that the legislature has seen fit to bestow on the tribunal in broad terms.

[24] That said, the broad discretion must nevertheless be exercised judicially.

  1. [153]
    The Tribunal therefore has wide power to amend the referred complaint.
  2. [154]
    The mere fact that the passage of time has been lengthy, is not enough in itself to satisfy the Tribunal that unfairness to the Respondents outweighs the unfairness that would be caused to Mr Baragan if his claims were not heard at all as the Respondents submit.
  3. [155]
    The Respondents have been aware of the original complaints since 2015. They have conducted extensive investigations into them. If the evidence of deceased witnesses is material, then regard can be had to alternate sources of evidence from those witnesses, if it is available.
  4. [156]
    I am not satisfied that the broad contention of the Respondents that it would be unfair for any of the matters to proceed is made out.
  5. [157]
    The passage of time has necessarily added to the reprisal alleged by Mr Baragan of having disciplinary proceedings commenced against him, an additional aggravating extent of reprisal by having the disciplinary proceedings continued. Those disciplinary proceedings are still not yet resolved.
  6. [158]
    I consider Mr Baragan should have the opportunity to have those items of the schedule that relate to the initial complaints, together with the additional aggravation of continuation of the disciplinary proceedings, considered at a hearing. I consider that, if proved, the relevant items are capable of being found to be reprisals, and do not accept that those items are doomed to fail.
  7. [159]
    The items of the schedule that relate to the initial complaints, together with the additional aggravation of continuation of the disciplinary proceedings, as discussed in my comments on the individual items above, are as follows:

1, 2, 3, 4, 5, 6, 6(a), 7, 8, 8(a), 8(b), 8(c), 9, 9(a), 9(b), 9(c), 9(d), 10, 10(a), 10(b), 11, 47.

  1. [160]
    The Respondents allege that some of those items are new allegations, as follows:

5, 7, 9(a), 9(b), 9(c), 9(d), 10(a), 10(b), 47.

  1. [161]
    The Respondents allege that some of those items are out of time, as follows:

1, 2, 3, 4, 5, 6, 6(a), 7, 8, 8(a), 8(b), 8 c), 9(a), 9(b), 9(c), 9(d), 10, 10(a), 10(b).

  1. [162]
    The Respondents allege that some of those items are doomed to fail allegations as they are incapable of being found to be reprisals, as follows:

9(a), 9(b), 9(c), 10(d), 47.

  1. [163]
    The initial complaints made by Mr Baragan were relatively precise and coherent, and involved allegations relating to his immediate employment and treatment by the Queensland Police Service.
  2. [164]
    The broader complaints as to Mr Baragan’s treatment by the Queensland Police Service, and the conduct of the Crime and Misconduct Commission (and its successor); and as to the conduct of the Queensland Police Union of Employees; have not been considered by the ADCQ, and have not been referred to the Tribunal under section 136 of the Anti-Discrimination Act 1991 (Qld).
  3. [165]
    The additional complaints raise the spectre of a broad conspiracy against Mr Baragan involving the Queensland Police Service, the Crime and Misconduct Commission (and its successor) and the Queensland Police Union of Employees.
  4. [166]
    I accept the submissions of the Respondents that the effect of allowing the additional complaints would be to cause the hearing to embark on a wide ranging investigation, not dissimilar to the type of Inquiry which is conducted by a Royal Commission, into an enormously wide variety of matters involving Mr Baragan over the past seven years or so. Such a hearing would be very lengthy and impose very significant costs on the Respondents.
  5. [167]
    The Tribunal does not have the jurisdiction to conduct the type of wide-ranging inquiry that Mr Baragan is seeking.
  6. [168]
    The Tribunal has an obligation to deal with matters as speedily and efficiently as possible. I consider that can best be achieved by the original and aggravated complaints being dealt with. I do not consider that the amendment of the complaints to include the new complaints as to the actions of the Crime and Misconduct Commission (and successor) or the Queensland Police Union of Employees, is appropriate, and would only serve to complicate and extend the hearing of the original complaints.
  7. [169]
    The complaints in relation to the Crime and Misconduct Commission (and its successor), and the Queensland Police Union of Employees, are discreet matters that could be the subject of fresh complaint to the ADCQ, but do not fall within the original and aggravated complaints, and are not necessary to be determined in order to determine the original and aggravated complaints.
  8. [170]
    I do not consider that the items which make complaint as to broader treatment by the Queensland Police Service; or as to the conduct of the Crime and Misconduct Commission (and its successor); or as to the conduct of the Queensland Police Union of employees; should be allowed to proceed.
  9. [171]
    I do consider that the items which I have identified as relating to the original complaint and aggravated complaint should be dealt with by the Tribunal, and that, on the balance of fairness between the parties, it would be reasonable to do so.
  10. [172]
    In order to allow the items of the schedule which I consider should be able to progress to hearing, which are said by the Respondents to be out of time, or which have not been considered by the Anti-Discrimination Commission of Queensland, I exercise discretion under section 175 of the Anti-Discrimination Act 1991 (Qld) to allow the Tribunal to deal with those items; and I exercise discretion under section 178 of the Anti-Discrimination Act 1991 (Qld) to allow Mr Baragan to amend the complaint to include those items.
  11. [173]
    I will order that the matter be set for a Directions Hearing so that appropriate consequent directions in relation to the Application for Miscellaneous Matters filed on 31 October 2017, and/or other directions as to evidence and hearing, may be given.
  12. [174]
    I order that:
    1. The Complaint is amended to comprise the items of the Schedule filed on 29 March 2018 which are specified in these Orders.
    2. The items of the Schedule filed on 29 March 2018 which are specified in these Orders are to proceed to hearing.
    3. The items of the Schedule filed on 29 March 2018 which are specified in these Orders are as follows:

1, 2, 3, 4, 5, 6, 6(a), 7, 8, 8(a), 8(b), 8(c), 9, 9(a), 9(b), 9(c), 9(d), 10, 10(a), 10(b), 11, 47.

  1. The matter is to be set for a Directions Hearing at a time and date to be advised.

Footnotes

[1]Respondents’ submissions and objections to the applicant schedule, filed 13 July 2018, [4]-[8].

[2]Ibid [9].

[3]Ibid [9].

[4]Ibid, [11].

[5]Ibid, [14].

[6]Ibid, [20].

[7]Ibid, [23].

[8]Ibid, [24].

[9]Ibid, [25].

[10]Ibid, [28].

[11]Ibid, [31].

[12]Ibid, [32].

[13]Ibid, [33].

[14]Ibid, [36].

[15]Ibid, [39].

[16]Applicant’s submissions filed 14 June 2018, [19].

[17]Ibid, [21].

[18]Ibid, [43].

[19]Ibid, [45].

[20]Ibid, [49].

[21]Ibid, [50].

[22]Ibid, [52].

[23]Ibid, [84]-[86].

[24]Reasons for decision, Q-Comp, 19 September 2013, p 1.

[25]Ibid, p 6.

[26]Ibid, p 6.

[27]Submissions attached to Complaint to ADCQ, dated 3 July 2015, p 1.

[28][2018] QCAT 311.

Close

Editorial Notes

  • Published Case Name:

    Dorin Baragan v State of Queensland, Paul Stewart, Lawrie Sturgess, David Winter, David Cuskelly & Darryl Dunlop

  • Shortened Case Name:

    Baragan v State of Queensland & Ors

  • MNC:

    [2019] QCAT 119

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    01 May 2019

Appeal Status

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

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