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  4. Weston and Parer v State of Queensland (Department of Justice and Attorney-General) - [2016] QIRC 37

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Weston and Parer v State of Queensland (Department of Justice and Attorney-General)[2016] QIRC 37

Weston and Parer v State of Queensland (Department of Justice and Attorney-General)[2016] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 037

PARTIES: 

Weston, Jeremy Simon

(Applicant)

and

Parer, Siobhan Maree

(Applicant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NOS:

B/2015/51

B/2015/52

 

PROCEEDING:

Application to Dismiss Declaration Applications

Application for Joinder

Application for Orders about Representation

 

DELIVERED ON:

1 April 2016

HEARING DATE:

7 March 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1.  In B/2015/52:

 Application to dismiss Ms Parer's declaration application is granted.

  1.  In B/2015/51:
  1. Application to dismiss Mr Weston's declaration application is refused; and
  2. Within 14 days, Mr Weston's declaration application is to be amended in accordance with this decision.
  1.  In B/2015/44 and B/2015/51:

Application to join Mr Weston's s 120 application (B/2015/44) and his declaration application (B/2015/51):

  1. is granted; and
  2. evidence in one is to be treated as evidence in the other.
  1.  In B/2015/45:
  1. Application to join Ms Parer's s 120 application (B/2015/45) with B/2015/44 and B/2015/51 is refused; and
  2. Ms Parer's s 120 application (B/2015/45) is to be heard concurrently with B/2015/44 and B/2015/51 to the extent possible.
  1.  In B/2015/44, B/2015/45 and B/2015/51:

Application for Crown Law and Fiona Black to cease to act as solicitors for the Respondent is granted.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO DISMISS DECLARATION APPLICATIONS – whether further proceedings are necessary or desirable in the public interest – whether declaration application by Ms Parer lacks jurisdiction – whether matters raised in Ms Parer's declaration application are excluded matters – whether Mr Weston's declaration application goes beyond raising natural justice considerations and whether reprisal action taken – whether waiver of rights to object – whether excessive delay and abuse of process

INDUSTRIAL LAW – APPLICATION FOR JOINDER – where determined Mr Weston may pursue two causes of action – whether Mr Weston's applications should be joined because of same factual matrix and evidence being common to both matters – where Ms Parer's s 120 application has similar factual matrix – where time and cost savings to parties and Commission were proceedings joined

INDUSTRIAL LAW – APPLICATION FOR ORDERS ABOUT REPRESENTATION – where grievances raised about employer leading to suspension and show cause letters – where a number of lawyers may be required to be witnesses and where conduct to be examined – where reprisal action by senior Crown Law staff is alleged – where reputations are at stake – whether the best interests of the State will be advanced – whether Crown Law solicitor has ability to take instruction and provide independent advice – where public confidence required in the administration of justice

CASES:

Industrial Relations Act 1999, s 7, s 120, s 274A, s 329, s 331, Schedule 1

Public Service Act 2008, s 187, s 189, s 190, s 216, s 217, s 218

Acts Interpretation Act 1954, s 14

Judicial Review Act 1991

Industrial Relations (Tribunals) Rules 2011, s 98

Burton v Bairnsdale Shire [1908] HCA 57

Nugent v Aromas Pty Ltd (1996) 153 QGIG 630

Darling v Ultrarad Pty Ltd (1997) 155 QGIG 1342

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125

QPSU v QFRS (2009) 192 QGIG 39

Berenyi v Maynard & Anor [2015] QSC 370

Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39

Lewis v Heffer and Others [1978] 1 WLR 1061

Rucker v Stewart & Ors [2014] QCA 32

The State of South Australia v O'Shea & Ors [1987] 163 CLR 378

Preston v Carmody and Others (1993) 44 FCR 1

Commonwealth v Verwayen [1990] 170 CLR 394

Mason v MWREDC Limited [2011] FCA 1512

Charlotte Brown and Another v Alan Myer Green and Others [1996] NSWIRComm136

United Australia Ltd v Barclays Bank Ltd [1941] AC 1

Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121

Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181

Bolitho v Banskia Securities Limited & Ors [2014] VSC 582

Larne-Jones v Human Synergistics Australia Limited & Ors [2012] FMCA 1209

Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238

Mitchell v Burrell [2008] NSWSC 772

APPEARANCES:

Mr M. Martin, QC and Mr S. Reidy, Counsel instructed by Susan Moriarty & Associates for the Applicants.

Dr M. Spry, Counsel instructed by Crown Law for the Respondent.

Decision

  1. [1]
    Jeremy Weston and Siobhan Parer have each filed two applications in the Queensland Industrial Relations Commission:
  1. (i)
    an application pursuant to s 120 of the Industrial Relations Act 1999 (IR Act) seeking certain interim and final orders to prevent and remedy prohibited conduct (B/2015/44 and B/2015/45); and
  1. (ii)
    an application pursuant to s 274A of the IR Act seeking certain declarations in relation to an investigation, suspension and disciplinary action (B/2015/51 and B/2015/52).
  1. [2]
    The State of Queensland (Department of Justice and Attorney-General) has made an application seeking the dismissal of the two applications for declarations.
  1. [3]
    Edwin Tse, Solicitor of the firm, Susan Moriarty & Associates, acting for Mr Weston and Ms Parer, has filed an application for orders about representation of the State of Queensland and joinder as follows:

"(a) Matter No B/2015/51 (Jeremy Weston v State of Queensland) and Matter No B/2015/52 (Siobhan Parer v State of Queensland) [the 'Declaration Applications'] be heard together and evidence in one application be evidence in the other application.

  1. (b)
    Matter No B/2015/44 (Jeremy Weston v State of Queensland) and Matter No B/2015/45 (Siobhan Parer v State of Queensland) [the 'Section 120 Applications'] be joined with and heard together with the Declaration Applications and that evidence in the section 120 applications be evidence in the Declaration applications and the evidence in the Declaration Applications be evidence in the Section 120 applications.
  1. (c)
    Fiona Black and Crown Law cease to act as solicitors for the Respondent in Matter No B/2015/51 (Jeremy Weston v State of Queensland) and Matter No B/2015/52 (Siobhan Parer v State of Queensland) and, in the event that order (b) is made, Matter No B/2015/44 (Jeremy Weston v State of Queensland) and Matter No B/2015/45 (Siobhan Parer v State of Queensland).
  1. (d)
    Crown Law take steps to withdraw as solicitors on the record within 14 days of the order of the Commission."

Background

  1. [4]
    Mr Weston and Ms Parer are both employed in Crown Law, a business unit of the Department of Justice and Attorney-General.  Ms Parer is Mr Weston's supervisor.
  1. [5]
    Mr Weston and Ms Parer allege that at a meeting on 18 February 2015, where a number of solicitors employed by Crown Law and representatives of a client, the Queensland Government Insurance Fund, were present, a Deputy Crown Solicitor, Helen Freemantle, made defamatory comments about Mr Weston.  These comments caused Mr Weston to lodge a grievance about Ms Freemantle on 7 April 2015.  Ms Parer also lodged a grievance about Ms Freemantle relating to the alleged comment and certain of her administrative actions.  Neither of these complaints was resolved to their satisfaction.
  1. [6]
    Both escalated their grievances and Mr Weston also lodged another grievance about the administrative actions taken by Ms Freemantle.  Again, none of these grievances were resolved to their satisfaction.
  1. [7]
    On 12 June 2015, and before their grievances were finalised, both Mr Weston and Ms Parer were suspended on full pay from their positions.
  1. [8]
    They were issued with show cause notices detailing various allegations against them.  The allegations flow from a report compiled by a member of the Queensland Bar, Joanne Sorbello.
  1. [9]
    Mr Weston and Ms Parer each lodged an application pursuant to s 120 of the IR Act on 4 November 2015.
  1. [10]
    A conference in the each of the s 120 applications was chaired by the Vice President on 18 November 2015 and consent orders were issued which, in effect, provided the two employees with access to certain documentation, time frames for providing a response to the show cause letter and a date by when the Department would make its disciplinary findings decision.  On the day before Mr Weston was due to provide his response, he and Ms Parer filed the applications for declarations.

The Applications

  1. The Application to Dismiss
  1. [11]
    The application made by the State of Queensland seeks to dismiss the two declaration applications pursuant to s 331(b)(ii) of the IR Act on the grounds that further proceedings by the Commission are not necessary or desirable in the public interest.  A range of grounds are set out in support of the application which can be summarised under the following three main headings:
  1. (i)
    natural justice is not required for suspension on normal remuneration and to issue a show cause notice;
  2. (ii)
    waiver of right to object to Ms Sorbello's involvement; and
  3. (iii)
    excessive delay/abuse of process.

In addition, at the hearing, a further argument was advanced with respect to Ms Parer only:  that ss 216 and 217 of the Public Service Act 2008 operate to exclude Ms Parer from making an application about an industrial matter in the Commission.  This argument will be considered first.  Its outcome determines whether the other three arguments can be advanced with respect to both Mr Weston and Ms Parer or Mr Weston only.

  1. (a)
    Ms Parer's declaration application - ss 216 and 217 of the PS Act
  1. [12]
    State of Queensland's submissions:  Dr Spry, Counsel, who appeared for the State of Queensland, argued that it is not desirable in the public interest for the Commission to hear and determine Ms Parer's application for declarations on the basis that it lacks jurisdiction because of the operation of ss 216 and 217 of the PS Act.
  1. [13]
    These sections fall within Chapter 7 Appeals and reviews, Part 3 Exclusion of particular matters from jurisdiction under other Acts and are set out below:

"216 Application of pt 3

  1. (1)
    This part applies to the following matters (each an excluded matter) -
  1. (a)
    a decision to appoint, or not to appoint, a person under this Act or as a statutory office holder;
  1. (b)
    the contract of employment of, or the application of this Act or a provision of this Act to, any of the following -
  1. (i)
    a commissioner;
  1. (ii)
    a chief executive;
  1. (e)
    a senior executive;
  1. (iv)
    a senior officer;
  1. (v)
    another public service officer whose employment is on contract for a fixed term.
  1. (2)
    In this section -

 decision includes a purported decision affected by jurisdictional error.

217 Exclusion for Industrial Relations Act 1999

  1. (1)
    An excluded matter, or a matter affecting or relating to an excluded matter, is not an industrial matter for the Industrial Relations Act 1999.
  1. (2)
    However, subsection (1) -
  1. (a)
    is subject to section 122(7); and
  1. (b)
    does not apply for a dismissal of a public service officer who is employed on tenure; and
  1. (c)
    has no effect on the Industrial Relations Act 1999, section 276.

Editor's notes -

  •  section 122 (Basis of employment for contract employment)
  • Industrial Relations Act 1999, section 276 (Power to amend or declare void contracts)
  1. (3)
    Without limiting subsection (1), industrial instruments do not apply to a person who holds an office mentioned in section 216(1)(b)."
  1. [14]
    In elaborating on his submission, Dr Spry referred to Ms Parer's Affidavit filed with her declaration application.  There, she sets out her professional career at Crown Law: holding the substantive position of Senior Principal Lawyer and, between 28 July 2014 and 12 June 2015, was the Acting Assistant Crown Solicitor of the Government Insurance and Risk team 2.  Both the position of Principal Lawyer and Assistant Crown Solicitor are classified at the Senior Officer level.
  1. [15]
    Dr Spry said that an application for declarations must be about an industrial matter. In her application, Ms Parer states that the industrial matter about which the declarations are sought is:

"The industrial matter concerns disciplinary action taken by the Respondent against me in the form of suspension from employment as an Acting Crown Solicitor for Crown Law on 12 June 2015 and a subsequent show cause process commencing in early September 2015, an outcome of which may be dismissal from employment in the following circumstances:

  1. (a)
    The process engaged in has been procedurally unfair;
  2. (b)
    The process engaged in has been otherwise unfair and unjust;
  3. (c)
    I have been in dispute with the Respondent since 7 April 2015 through the DJAG Employee Complaints Policy and Procedure over unfair and unreasonable administrative decisions by Deputy Crown Solicitor, Ms Helen Freemantle prior to the suspension and show cause."
  1. [16]
    Ms Parer was suspended pursuant to s 189 of the PS Act and "on her own material, she complains about her suspension and what followed from that or what led up to it."  That is clearly an excluded matter under s 216 of the PS Act, and as such, is not an industrial matter given the provisions of s 217 of the PS Act.
  1. [17]
    Dr Spry acknowledged that the arguments concerning ss 216 and 217 of the PS Act do not apply to Mr Weston as he is not a senior officer.
  1. [18]
    Ms Parer's submissions:  Mr Martin QC rejected the contention that because Ms Parer is a senior officer the provisions of ss 216 and 217 of the PS Act exclude her from making an application for declarations.  He submitted that the application has nothing to do with her contract of employment or the application of the PS Act but rather, given the nature of the declarations sought, concerns the conduct of the employer.
  1. [19]
    In Mr Martin's submission, the starting point is to consider the nature of the declarations sought in Ms Parer's application.  He contended the actions taken by the Respondent are in the nature of a reprisal, taken because Mr Weston and Ms Parer lodged grievances over the comments made by Ms Freemantle about Mr Weston's professional capabilities.  Offence was seemingly taken to their complaints about Ms Freemantle resulting in an investigation by Ms Sorbello into the files handled by Mr Weston and supervised by Ms Parer.  Because Ms Sorbello is known to both of the Applicants, it cannot be said that she was an independent investigator.  It is against that background that the Commission has to consider the declarations sought.
  1. [20]
    Mr Martin stated that the declarations do not challenge the suspension or the show cause notice but the conduct leading up to both of those actions.  He referred to the letter from Mr Rallings to Susan Moriarty & Associates received on 4 September 2015 which shows that no disciplinary decision or action had been made or taken and that none would be considered until she responded.  Further, the investigation, withholding of documents and information and making allegations is a show cause process outside the purview of the matters dealt with in the relevant statutory provisions.
  1. [21]
    In this light, neither Ms Parer's contract of employment nor the application of the PS Act are relevant considerations.  The declarations attack "the fundamental decision-making process of the respondent in coming to the view that a show cause notice should be issued, or in fact they should be suspended from work at all."  The declarations have been cast to show that the action taken by the Respondent was procedurally unfair or otherwise unfair and unjust.  Once the Commission is satisfied that the declarations are directed to the reprisal action taken, there are no excluded matters and, accordingly, a basis to dismiss Ms Parer's application pursuant to s 331(b) of the IR Act has not been established.
  1. [22]
    Mr Martin noted that the issues concerning ss 216 and 217 of the PS Act do not apply to Mr Weston as he is not a senior officer.
  1. [23]
    The State of Queensland's reply submissions: Dr Spry referred to the definition of industrial matter in s 7 of the IR Act as being the relevant definition of "industrial matter" for the purposes of s 274A.  It is a broad definition, referring to the privileges, rights and functions of an employee or an employer.  An expanded definition is found in Schedule 1.  In Ms Parer's case, the decision to suspend was a decision made under the PS Act and even had Mr Rallings made an error in his decision (and Dr Spry made no concession that he did), and thus made a jurisdictional error,  the terms of s 216 of the PS Act apply.  He submitted that the provisions of ss 216 and 217 cannot be avoided by saying the declaration application is about a reprisal action.
  1. [24]
    Consideration and Conclusion:  The application made by the State of Queensland requires the Commission to determine whether it should dismiss Ms Parer's declaration application on the basis that further proceedings are not necessary or desirable in the public interest.  The Commission accepts Mr Martin's submissions that prima facie an Applicant has a right to have all matters of law and fact decided.[1]  The power to dismiss in a summary way should be exercised where an application is plainly untenable and not where a real question of law or fact is to be determined.[2]  It is a jurisdiction to be sparingly exercised.[3]
  1. [25]
    It is not in dispute that Ms Parer is a senior officer, which is one of the classes of officer listed in s 216(1)(b) of the PS Act.  The crux of the dispute between the parties is whether the matters raised in her declaration application are excluded matters as defined by s 216(1) or matters affecting or relating to an excluded matter (s 217(1)).  If they are, as the State of Queensland contends, then they are not industrial matters for the IR Act and cannot be considered by the Commission.  Ms Parer's declaration application must therefore be dismissed.
  1. [26]
    Section 216(1)(b) provides that each of the contract of employment of, or the application of the PS Act or a provision of the PS Act to a senior officer is an excluded matter.  Section 217(1) concerns what an industrial matter is for the purposes of the IR Act.  It provides that an industrial matter is not only an excluded matter as defined by s 216(1) but extends to "a matter affecting or relating to an excluded matter".
  1. [27]
    In a case, also concerning a declaration application, Hall P considered the meaning of the expression, "relating to" and accepted the meaning found in a range of authorities that, "[t]here is no expression more general or far reaching than that" and it "should not be read down in the absence of some compelling reason for so doing".[4] 
  1. [28]
    Mr Martin's submissions are that the declarations sought concern the decision-making process of the employer, and the suspension and the show cause notice constitute reprisal action.  However, that the declarations might be directed towards these things does not mean that they cannot relate to the excluded matters in s 216(1)(b). 
  1. [29]
    The parties agree, and I accept, that Ms Parer's suspension was not disciplinary action taken against her under Chapter 6 of the PS Act.  Although for reasons given later I express concern over whether s 189 was the correct source of power to suspend the two employees in June 2015, Ms Parer was suspended pursuant to that section. 
  1. [30]
    In Berenyi v Maynard & Anor, Philippides JA held that Chapter 6 of the PS Act "establishes a comprehensive procedure for disciplinary action for public service employees."[5]  Further, Bond J held in Wirth v Mackay Hospital and Health Service & Anor that the phrase "in disciplining a public service employee" encompasses both the decision on penalty made under the PS Act and the antecedent disciplinary findings decision.[6]  Prior to the disciplinary findings decision, providing notice of the allegations and an opportunity to respond are necessary steps required to afford natural justice and are part of the disciplinary process.[7]
  1. [31]
    Although I have not been provided with any disciplinary policy issued by the Respondent, I note that in correspondence from Susan Moriarty & Associates to Mr Rallings, reliance was placed on the Public Service Commission Chief Executive Guideline 01/13: Discipline.  This Guideline is described as "an aid to managing the disciplinary processes" under Chapter 6 of the PS Act.  Accepting that this Guideline is required to be considered by, but is not binding on, the Respondent, it nonetheless shows that an investigation and the show cause process are steps in the disciplinary process that may lead to the application of Part 6 of the PS Act.[8]
  1. [32]
    The undated letter from Mr Rallings to Ms Parer states that "you may be liable for disciplinary action pursuant to s 187 of the Public Service Act 2008"; "you are now required to show cause why you should not be disciplined" and "this disciplinary process".  This makes clear that a disciplinary process is on foot.  Considered in light of the decisions in Berenyi and Wirth as well as the Discipline Guideline, I am satisfied that the Respondent's actions in issuing a show cause notice relates to the application of Chapter 6.  Further, engaging a person to investigate and prepare reports is necessary work antecedent to the (possible) invoking of Chapter 6 and, bearing in mind the reach of the expression "relates to", thus relates to the application of part of the PS Act. 
  1. [33]
    In the event I was to be wrong in reaching that the investigation and preparation of reports relates to the application of part of the PS Act, I consider that these matters affect or relate to one of the terms of Ms Parer's contract of employment - the duty to perform work in a competent manner. 
  1. [34]
    In my view, whether the decision-making by and the conduct of the Respondent was procedurally fair or otherwise motivated by reprisal, the decisions made about, and the conduct in, having Ms Sorbello prepare reports; suspending Ms Parer and issuing her with a show cause notice relate to an excluded matter.  They are therefore not industrial matters for the IR Act because of the operation of s 217 of the PS Act.  As Ms Parer is a senior officer and the matters about which declarations are sought are not industrial matters given the breadth of meaning of an excluded matter in s 217 of the PS Act, I must find that the Commission lacks jurisdiction to hear and determine B/2015/52.  Accordingly, the Commission must dismiss B/2015/52.
  1. [35]
    Ms Parer is not altogether deprived of the ability to challenge the employer's actions.  Section 218(2) of the PS Act specifically prescribes rights under the Judicial Review Act 1991 for senior officers.
  1. (b)
    Mr Weston's declaration application
  1. [36]
    The alternative series of arguments were originally advanced in relation to both declaration applications.  Given the outcome of Ms Parer's application, these arguments are now only considered in respect of Mr Weston's declaration application and have been modified accordingly.
  1. [37]
    Mr Weston's declaration application seeks the Commission make declarations that the following are procedurally unfair or otherwise unjust or unfair:
  • the reports of Ms Sorbello;
  • his suspension by Mr Rallings; and
  • the show cause letter signed by Mr Rallings.

Further, a declaration is sought that Ms Sorbello's reports cannot be relied on or otherwise used in future disciplinary action against him.  A range of consequential orders or directions are also sought.  The industrial matter identified is in substantially similar terms as that set out earlier in relation to Ms Parer save as to the position held and the nature of his grievance.

Natural Justice Arguments

  1. [38]
    State of Queensland's submissions:  Submissions about natural justice were made in relation to:
  1. (a)
    the suspension under s 189 of the PS Act;
  2. (b)
    a decision to issue a show cause notice; and
  3. (c)
    Ms Sorbello's reports.
  1. [39]
    Suspension:  Dr Spry submitted that an employee cannot bring a declaration application because a decision to suspend them with pay is procedurally unfair as it has long been established that there is no obligation to afford a person with natural justice when the suspension is with pay.  In this regard, Dr Spry referred to the decision in Lewis v Heffer where Lord Denning MR held that the rules of natural justice apply where suspensions are inflicted by way of punishment but do not apply to suspensions which are made as a holding operation, pending inquiries.[9]  In the second case, such a suspension is for the purposes of good administration.  These views were adopted by the Queensland Court of Appeal in Rucker v Stewart & Ors,[10] where the court was considering the case of a police officer who had been stood down from duty on pay without first being afforded an opportunity to present his case.  Dr Spry said that Mr Weston's suspension was not disciplinary action but fell within the second case.
  1. [40]
    Dr Spry also referred to s 190 of the PS Act, Procedure for disciplinary action.  While accepting s 190 makes a distinction between disciplinary action and suspension, subsection (2) provides that natural justice does not apply if the suspension is on normal remuneration.  Were the Commission to find that it has jurisdiction to entertain the application, it should not hear it in the public interest because natural justice does not apply to a suspension on normal remuneration.
  1. [41]
    Show cause notice: The State of Queensland rejected the contention included in the application for declarations that the decision to issue a show cause notice is in some way vitiated because an employee was not afforded natural justice.  It submitted that there is no authority to suggest a person is entitled to natural justice in regard to whether they should be issued with a show cause notice as this is the purpose of a show cause process.  To support this submission, Dr Spry referred to the decision of the High Court of Australia in The State of South Australia v O'Shea, where Mason CJ held:

"The hearing before the recommending body provides sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness."[11]

 Again this approach was endorsed by the Queensland Court of Appeal in Rucker.[12]

  1. [42]
    In the present matter, Mr Weston was issued with a show cause notice and asked to respond.  Dr Spry submitted this is the point where the opportunity exists to put whatever material is considered relevant and necessary before the decision-maker.  The PS Act is intended to operate in this way and there is no entitlement to natural justice at an earlier stage.
  1. [43]
    Reports:  The State of Queensland also contended that the same considerations in respect of natural justice apply to Ms Sorbello's reports, that is, the report was put to Mr Weston and he was invited to respond.  Support for these submissions was said to be also found in The State of South Australia and Rucker decisions.
  1. [44]
    Mr Weston's submissions:  Mr Martin's written submissions explained that the State's contentions about natural justice do not appreciate the scope of the issues being raised in the application for declarations.  The declarations sought are the result of a reprisal action and unrelated to natural justice considerations.  Mr Weston seeks to attack the fundamental decision-making process leading to his suspension and show cause.  Crown Law did not conduct itself in a way that was fair, just and procedurally fair.  The lack of fair procedure includes misleading Mr Weston, conducting the investigation secretly and denying opportunities to have an effect on the investigation.
  1. [45]
    In responding to Dr Spry's submissions about suspension, Mr Martin noted the heading of s 190 of the PS Act - Procedure for disciplinary action.  In accordance with s 14 of the Acts Interpretation Act 1954, the heading to the section is part of the Act.  In his submission, s 190 does not apply because no disciplinary action was on foot when Mr Weston was suspended and this is made clear by the show cause letters.  As a result the Respondent has to find some other authority for the proposition that Mr Weston was not entitled to natural justice in respect of the declarations he is seeking.

Waiver of rights

  1. [46]
    In his Affidavit supporting his declaration application, Mr Weston states that he has a reasonable apprehension of bias on the part of Ms Sorbello and that she has a conflict of interest in undertaking the work.  Further, her reports are procedurally unfair and otherwise unjust or unfair for a number of reasons.
  1. [47]
    State of Queensland's submissions:  Even were Mr Weston entitled to natural justice, for example, because he knew Ms Sorbello, in consenting to the orders made by the Vice President on 18 November 2015 that he would respond to the show cause notice, he waived his right to complain about Ms Sorbello's involvement.  Support for this submission was drawn from the decision in Preston v Carmody and Others[13] where Wilcox J held it was too late for the applicant to complain about a person appointed to review a decision when he did not do so at the time of the appointment.  The case is said to be analogous to that here where Mr Weston knew at the time of the conference that Ms Sorbello had prepared reports yet did not object to her involvement.  By accepting the consent orders it was now too late for him to complain.  Mr Weston was legally represented at the conference.  Dr Spry noted that Mr Weston had not complied with the consent orders, instead filing his declaration application.
  1. [48]
    Mr Weston's submissions:  Mr Martin rejected the Respondent's submission of the effect of Mr Weston consenting to orders made by the Vice President.  For a waiver to occur, unequivocal words or conduct, including a deliberate abstention from asserting a right up to the last possible time for its assertion, are required.[14]  This was not the case here.  That Mr Weston agreed to respond to the report does not mean that he agrees with the report of Ms Sorbello or that she should have prepared the reports in the first place.  He complains about the way in which the report was brought into existence, the manner in which the investigation was conducted and the oppressive burden in responding to the reports.
  1. [49]
    In Mr Martin's submission, the decision in Preston does not assist the State of Queensland's case.  In Preston, the applicant had an opportunity to object to the identity of the decision-maker on the grounds of bias at the time of the decision-maker's appointment but failed to do so.  In the present matter, Mr Weston was unaware Ms Sorbello had been retained until he received the show cause notice.

Excessive Delay/Abuse of Process

  1. [50]
    State of Queensland's submissions:  Dr Spry said that six months had elapsed since Mr Weston's suspension and filing his declaration application and he had not explained this excessive delay despite being legally represented since 12 June 2015.  Mr Weston commenced the s 120 applications on 4 November 2015 and consented to orders, when legally represented, on 18 November 2015.  Counsel for Mr Weston at the conciliation conference before the Vice President flagged the prospect of amending the s 120 application.  However, no amendment to the s 120 application was made, rather a new application for declarations was filed.  It was submitted that this is not the way the Commission's processes should be used and the Commission should not entertain the use of its processes in this manner.
  1. [51]
    Dr Spry submitted that a party who may have a cause of action cannot improve their position by bringing a separate action and it is no answer to that proposition to commence separate proceedings and seek to join the original proceedings.  The basis of this submission is the decision in Brown v Green[15] by Schmidt J in the Industrial Court of New South Wales.
  1. [52]
    Mr Weston's submissions:  Mr Martin rejected the submission that the declaration application is an abuse of process because the s 120 proceedings involve the same factual matrix.  Here, Mr Weston is simply adding another cause of action and different remedies are sought arising out of the same factual matrix.  The remedy is to hear the application for declarations and the s 120 application together.  Hearing the applications together negates any mischief about having different members of the Commission hearing applications with the same factual matrix.
  1. [53]
    Consideration:  The Commission has taken the approach of considering the arguments collectively in deciding whether to dismiss Mr Weston's application.  This is because the jurisdiction to dismiss an application is to be exercised sparingly and should not be exercised where there is a real question of law or fact to be determined.
  1. [54]
    In response to the natural justice arguments advanced by the State, Mr Weston submitted that the issues to be tried in his declaration application are the "unfairness, injustice and unfair procedure" employed by the Respondent in the decision-making process leading to his suspension, engaging Ms Sorbello to investigate and prepare reports and issuing a show cause notice.  Further, and contrary to the submissions of the State, as the actions concern a reprisal, the declarations sought raise broader and different considerations to affording natural justice.
  1. [55]
    It is not immediately apparent from the declaration application that all of these are issues to be tried, for example, the decision-making process and that certain actions were in the nature of reprisal.  That this lack of clarity exists is evidenced by the application to dismiss Mr Weston's case and the submissions made in support of it - that the declaration application was understood to be directed to whether natural justice had been afforded in respect of the suspension, issuing of the show cause notice and the provision of Ms Sorbello's reports.  That the application is directed to issues broader than natural justice is a factor weighing against the application to dismiss.
  1. [56]
    Were the application to dismiss confined to considerations of whether natural justice applied to the suspension, issuing of the show cause notice and the provision of Ms Sorbello's reports, I would agree with the submissions of the State of Queensland save as to the suspension being effected pursuant to ss 189 and 190 of the PS Act.[16]
  1. [57]
    In relation to the submissions concerning the waiver of rights, there appear to be two issues of concern about Ms Sorbello from Mr Weston's perspective - firstly, the objection to Ms Sorbello's appointment on the grounds of reasonable apprehension of bias and secondly, the method of her investigation and content of her report.  Although I consider that natural justice was applied in providing Ms Sorbello's reports to Mr Weston, this does not address the second issue of concern to Mr Weston.
  1. [58]
    In considering whether Mr Weston waived any right to object to Ms Sorbello by consenting to orders before the Vice President, the following matters are relevant.  Although I accept that Mr Weston was unaware of Ms Sorbello's engagement, he asserts a reasonable apprehension of bias on the part of Ms Sorbello as one of the bases to seek a declaration about her reports despite previously consenting to orders to respond.  As I understand the application, it is not asserted that part of the reprisal action included a decision to retain Ms Sorbello, who might be adverse to Mr Weston, to prepare reports.  I have understood this to be asserted on the basis of being "otherwise unfair or unjust".
  1. [59]
    Mr Weston was notified in the show cause letter from Mr Rallings of Ms Sorbello's reports and that they formed the basis of the allegations made against him.  At all times since his suspension, Mr Weston has been legally represented.  Ms Black's Affidavit in support of the State of Queensland's application exhibits correspondence from Susan Moriarty & Associates to Mr Rallings following receipt of the show cause letter.  That correspondence canvasses a number of matters, including discovery and inspection of documents.  However, in neither the correspondence nor the conference before the Vice President was objection taken by Mr Weston to the appointment of Ms Sorbello as an appropriate person to investigate and prepare reports.  This point was raised for the first time in Mr Weston's declaration application which was filed the day before his response to the show cause was due.
  1. [60]
    Although he did not object to Ms Sorbello's appointment after the decision had been made about liability for disciplinary action as was the case in Preston, it was very belated - some three months after he had been issued with the show cause notice where Ms Sorbello's involvement was identified; correspondence about the show cause had been sent by his Solicitor to the decision-maker and a conference in the Commission had been held.  In my view, the significant delay in raising an objection to Ms Sorbello's involvement when it was known to him for some months is difficult to excuse.  I accept however, that had the show cause process taken the ordinary course, his concerns about bias on the part of Ms Sorbello could have been raised in his response.
  1. [61]
    The third argument advanced in support of the application to dismiss is in two parts - the excessive delay in filing the declaration application and the application is an abuse of process.  As noted earlier, the application was filed approximately three months after receiving the show cause notice.
  1. [62]
    In respect of the abuse of process submission, it is the case that Mr Weston has brought two applications dealing with the same or similar subject matter in the Commission, although they seek different remedies.  The State of Queensland submits that the decision in Brown v Green supports its argument that separate actions cannot improve Mr Weston's position and this is a basis to dismiss Mr Weston's application.  Mr Martin contends that the case relied on by Dr Spry is not authority to support his contention.
  1. [63]
    In her decision in Brown v Green, Schmidt J identified two meanings of the expression, "cause of action".  The first meaning is not relevant to the present matter.  The second meaning concerns the situation where the same facts support rights to different remedies against the same defendant.  In her explanation of the second meaning, Schmidt J referred to the judgment of Lord Atkin in the decision United Australia Ltd v Barclays Bank Ltd.[17]  It is useful to set out the whole paragraph of the judgment to properly understand the principle:

"I therefore think that on a question of alternative remedies no question of election arises until one or other claim has been brought to judgment.  Up to that stage the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other:  but he can take judgment only for one and his cause of action on both will then be merged in the one."

  1. [64]
    The pursuit of multiple remedies was considered in Walker v Industrial Court of New South Wales & Anor where Kirby J said:

"It is by no means unusual for one set of circumstances to give rise to a number of remedies which the person affected may pursue, sometimes in the one court, sometimes in differing courts, to the full extent of that person's entitlement. The commonest example is the entitlement of an injured worker to bring proceedings for benefits under the Workers Compensation Act, and to maintain a claim for damages at common law. The ingredients of the various entitlements may be different. But the existence of alternatives has never excluded a person from pursuing rights expressly conferred by statute.  Unless those rights are expressly, or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the statutory right can pursue any, or all, or no entitlement."[18]

  1. [65]
    These decisions make clear that an Applicant may decide to pursue two causes of action with different remedies.  It may be that in Mr Weston's case, a remedy can only be given in one claim and that becomes the remedy for both.  This position is consistent with the submissions put by Mr Martin.
  1. [66]
    Conclusion:  The declaration application goes beyond raising natural justice considerations and extends to the decision-making process and whether certain actions taken were in the nature of a reprisal.  In light of these submission it appears there are real questions about the conduct and decision-making process of the Respondent that should be tried.  Further, that despite the same factual matrix, Mr Weston is entitled to pursue two causes of action - his s 120 application and the declaration application.  In these circumstances the State of Queensland's application to dismiss Mr Weston's declaration application is refused.
  1. [67]
    However, for the reasons given, his declaration application is unsatisfactory as there is a lack of clarity about the matters he seeks to agitate and the relevance of the facts relied on.  While I do not consider sustainable grounds have been advanced to dismiss it, it cannot proceed in its current form.  Mr Weston has 14 days to file and serve an amended declaration application addressing the concerns raised in this decision.  In the interests of fairness, caution is to be exercised in preparing the amended application to ensure that it does not expand the issues Mr Martin said the application was challenging.
  1. Application for Joinder
  1. [68]
    Mr Weston's submissions:  While s 98 of the Industrial Relations (Tribunals) Rules 2011 permits a party to apply to the Commission to join two proceedings, the Commission has power under s 329(c) of the IR Act on its own initiative to join two or more matters and hear and determine them in a single proceeding.  Mr Martin submitted that the s 120 applications and the declaration application are separate statutory causes of action based on identical facts.  The proceedings will be lengthy and involve many witnesses.  There are cost and time benefits for the Commission and the parties were all applications to be heard together.
  1. [69]
    Mr Martin also submitted that in the event Ms Parer's declaration application was dismissed, her s 120 application should still be heard with Mr Weston's two applications because of the same factual matrix applying in all matters.
  1. [70]
    State of Queensland's submissions:  Dr Spry submitted that were the Commission to dismiss Ms Parer's declaration application then her s 120 application should not be joined with Mr Weston's applications because they concern different Applicants with different causes of action.  Further, the applications should not be joined because a different standard of proof is required as between the s 120 applications and the declaration application.  In respect of the s 120 proceedings, once Applicants have established preliminary matters the onus rests with the Respondent to show that it did not take prohibited action for a prohibited reason.
  1. [71]
    Joining the proceedings will increase the complexity of the proceedings and lead to unnecessary mistakes both by the parties and the Commission.
  1. [72]
    Consideration:  It is clear that Mr Weston's two applications have the same factual matrix, with evidence being common to both matters.  Despite different standards of proof being required in the s 120 application and the declaration application, I consider that given both parties will be legally represented and have retained Counsel, they are capable of conducting the hearing in a manner which will prevent both themselves and the Commission falling into error.  I consider there will be time and cost savings to the parties and the Commission were these proceedings to be joined.  Accordingly, I have determined to join Mr Weston's two applications.
  1. [73]
    Ms Parer's s 120 application has a similar factual matrix to that of Mr Weston's applications but there are some differences.  In my view, savings of time and cost would be achieved were the evidence common to all matters heard together.  However, because there are some differences, it is appropriate for some flexibility to remain in the conduct of the proceedings.  This can be achieved by not formally joining Ms Parer's application with Mr Weston's applications.  In those circumstances I consider that Ms Parer's s 120 application should be heard concurrently with Mr Weston's applications, to the extent that there is common evidence and submissions.  Where there is evidence specific to Ms Parer's s 120 application it is to be heard separately.  These decisions are made in accordance with s 329(c) of the IR Act.
  1. [74]
    The Commission also determines that the evidence in B/2015/44 be evidence in B/2015/51.  To the extent that there is common evidence to be given in B/2015/44, B/2015/51 and B/2015/45 that evidence is to be heard concurrently.
  1. Application for Orders about Representation
  1. [75]
    The application made by Mr Tse, being authorised to represent Ms Parer and Mr Weston, is for the Commission to order that Ms Black and Crown Law cease acting for the State of Queensland in their declaration applications and the s 120 applications in the event they are joined and heard together.  Given the orders I have made thus far in this decision, the application for orders about representation concern both Ms Parer's and Mr Weston's 120 applications, and Mr Weston's declaration application.
  1. [76]
    Unlike courts, the Commission does not have an inherent jurisdiction to make the orders sought.  Counsel agree, however, that jurisdiction is provided pursuant to s 329(b)(ii) of the IR Act.  This section gives the Commission power to direct for proceedings by whom the parties may be represented.
  1. [77]
    Decisions from various courts have set out the principles to be applied when considering whether to restrain a legal practitioner from acting for a particular party in a matter.  The parties agree that the principles were conveniently summarised by Brereton J in Kallinicos v Hunt[19] and are appropriate and relevant to the exercise of the Commission's jurisdiction under s 329(b)(ii).  The relevant principles from that decision were set out in Bolitho v Banskia Securities Limited as follows:

"(a) The test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

  1. (b)
    The jurisdiction is exceptional and is to be exercised with caution.
  1. (c)
    Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
  1. (d)
    The timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief."[20]
  1. [78]
    Notwithstanding their agreement as to the applicable legislation and principles, the parties are at odds as to their application in these matters.
  1. [79]
    The Applicants' submissions:  The starting point for the submission in support of the application that Crown Law and Ms Black cease acting for the State of Queensland is the comments made by Ms Freemantle about Mr Weston at the meeting on 18 February 2015.  They allege that as a result of raising grievances about Ms Freemantle's conduct, reprisal action was taken in the form of a secret investigation by Ms Sorbello leading to their suspension and the show cause letters being issued.
  1. [80]
    Mr Martin submitted that evidence about what Ms Freemantle said is integral to the case being conducted by his clients and it is therefore essential for those present at the meeting to give evidence about her comments. 
  1. [81]
    As Ms Black was also present at the 18 February meeting, she would be required to give evidence.  That Ms Black would be required to give evidence is a reason she should not continue to act in order to prevent her objectivity being questioned.[21] 
  1. [82]
    Further, as the solicitor on the record, Ms Black would also be required to take instructions from more senior officers rendering her less able to provide independent advice given the nature of the allegations involved in the matters.  Ms Black should not be perceived as being compromised in the conduct of the litigation.
  1. [83]
    Mr Martin submitted that the Commission should direct that Crown Law and Ms Black cease to act as solicitors for the Respondent in light of the deep interest of Crown Law in the outcome, so many senior lawyers across the legal practice of Crown Law have been involved in matters concerning the Applicants and in circumstances where Crown Law has offered no evidence on the systems in place to handle potential conflicts and assure the Commission of independence.
  1. [84]
    The State of Queensland's submissions:  Dr Spry rejected the notion Ms Freemantle's comments are important, contending they are not an issue the Commission has to decide because they are the subject of defamation proceedings taken by Mr Weston.  As a result it will be unnecessary for Ms Black and others present at the meeting to give evidence in these proceedings of what Ms Freemantle said.  Moreover, on consideration of Mr Weston's Affidavit and attached file note and Ms Freemantle's apology, there is not a great deal of difference in the versions.
  1. [85]
    Dr Spry said Ms Black's personal integrity is not in issue and she has does not have an interest in the proceedings which conflict with her duty to the court.
  1. [86]
    The case of an employer representing itself does not cause a conflict of interest.  It happens frequently in proceedings in a tribunal, whether the employer is legally represented or not.
  1. [87]
    Further, there has been significant delay in bringing the application.  It was first raised in the Mention hearing in the Commission on 16 February 2016 when draft directions were supplied, yet, despite that, no objection was taken to Crown Law or Ms Black in particular continuing to represent the State of Queensland until disclosure was completed.  Dr Spry submits that of itself the delay should count against the application being granted.
  1. [88]
    Consideration:  The Applicants contend the actions of a number of Crown Law staff as well as Mr Mackie and Mr Rallings have been inappropriate.  Crown Law intends to act for the Respondent in the proceedings with Ms Black as the instructing solicitor.  Dr Spry has been retained as independent Counsel.  The question is whether Crown Law and Ms Black, who the Applicants also contend is a relevant witness, should be restrained from acting in light of the goal to protect not just the interests of the individual litigant but more importantly public confidence in the administration of justice, including the appearance of justice.[22]
  1. [89]
    The test to be applied in achieving that goal is that of the "fair-minded, reasonably informed member of the public".  In Bolitho, Ferguson JA described that person as the "Observer" and adopted the approach of setting out what the Observer would know about a case in reaching a conclusion as to whether the solicitor (and Counsel in that case) should be restrained from acting.  I intend to adopt the same approach, noting that it is Crown Law and Ms Black, who are sought to be restrained.  No issue was taken with Dr Spry's representation.  In so doing, I have reviewed the Affidavits and attachments provided in the relevant applications in an attempt to establish the main facts and issues.
  1. [90]
    In my view, the Observer would know that:
  1. (i)
    At a meeting on 18 February 2015 Ms Freemantle made some remarks critical of Mr Weston's capability and competence as a solicitor.
  1. (ii)
    Ms Parer, Ms Black and several other solicitors from Crown Law were present at that meeting.  Some of the other solicitors present were senior to Ms Black.  Although the Respondent submits that Ms Black and others present at the 18 February meeting will not be called to give evidence, their absence will be the subject of a submission that an adverse inference should be drawn by the Commission.
  1. (iii)
    Mr Weston learnt of Ms Freemantle's remarks.
  1. (iv)
    He lodged a grievance on 7 April 2015 to the Crown Solicitor, Greg Cooper, about her remarks.
  1. (v)
    Ms Parer lodged a grievance about the remarks and certain administrative actions taken by Ms Freemantle.
  1. (vi)
    Ms Freemantle apologised to Mr Weston in writing on 14 April 2015.
  1. (vii)
    The Crown Solicitor, Greg Cooper, dismissed Mr Weston's and Ms Parer's grievances.
  1. (viii)
    Mr Weston had various files for which he had supervision removed from him without consultation.  He was not informed as to the reason for their removal and in particular that QGIF had made complaints about his handling of certain files.
  1. (ix)
    Mr Weston lodged a further grievance about Ms Freemantle's actions of reallocating his files with Mr Cooper which was also dismissed.
  1. (x)
    Mr Weston and Ms Parer sought an internal review of their grievances by the then Acting Director General of the Respondent, Mr Mackie.
  1. (xi)
    Mr Mackie appointed another Barrister to investigate Mr Weston's first grievance.  Mr Mackie did not accept a number of contentions made by Mr Weston but directed Ms Freemantle (through the Crown Solicitor) to provide a copy of her apology to the attendees at the 18 February meeting.
  1. (xii)
    An independent investigation firm was appointed to investigate and review Ms Parer's grievance.  Mr Mackie determined on the basis of the investigation report that Ms Parer's allegations were not capable of substantiation.
  1. (xiii)
    Ms Sorbello was retained to investigate Mr Weston's handling of five files following the complaints made by QGIF.
  1. (xiv)
    Mr Mackie delegated Mr Rallings with carriage of the suspension and show cause process on the basis of his (Mackie's) involvement in the internal review of Mr Weston's and Ms Parer's grievances.  There is some issue about whether Mr Rallings was properly delegated authority to be the decision-maker.
  1. (xv)
    Mr Weston and Ms Parer were suspended from duty on 12 June 2015 before their grievances had been resolved.
  1. (xvi)
    Neither Mr Weston nor Ms Parer were advised of Ms Sorbello's appointment and the scope of her work until receipt of the show cause letters on or around 2 September 2015.  They hold apprehensions of bias about her investigation and are also concerned about her method of investigation.
  1. (xvii)
    Mr Weston and Ms Parer lodged s 120 applications in the Commission on 4 November 2015.
  1. (xviii)
    The parties to the s 120 applications attended a conference in the Commission on 18 November 2015 where no issue was taken with the representation by Crown Law in general or Ms Black in particular.
  1. (xix)
    Mr Weston and Ms Parer lodged applications for declarations in the Commission the day before Mr Weston's response to the show cause was due.
  1. (xx)
    That in hearing the s 120 applications (and Mr Weston's declaration application), the actions of Ms Freemantle, Mr Cooper and Mr Rallings will be subject to scrutiny and it is likely that each of them may be required to give evidence.  In particular, the Commission will be asked to determine whether the actions of Ms Freemantle and Mr Rallings constitute reprisal actions.  Ms Freemantle and Mr Cooper are senior officers of Crown Law and are senior to Ms Black.  Ms Freemantle may have some involvement in determining how the case will be conducted by Crown Law.
  1. (xxi)
    Mr Rallings does not work for Crown Law but is a Deputy Director General, Queensland Corrective Services, Department of Justice and Attorney-General.
  1. (xxii)
    A number of Solicitors from Crown Law have been involved in the issues relating to Mr Weston and Ms Parer, including being present at meetings where their issues were discussed, providing instructions, in the removal of files or being interviewed as part of the various investigations.
  1. (xxiii)
    Parties often act for themselves in proceedings before the Commission.
  1. (xxiv)
    Crown Law has the benefit of independent Counsel.
  1. (xxv)
    Crown Law has not provided any evidence of systems in place to handle conflicts should Ms Black continue to be the Solicitor on the record.
  1. (xxvi)
    Crown Law and Ms Black wish to continue to act for the Respondent.
  1. (xxvii)
    As Mr Weston and Ms Parer have been suspended on normal remuneration since 12 June 2015, there is a public interest, given the efficient use of taxpayers' funds, to bring as expeditious resolution as possible to the litigation.
  1. (xxviii)
    Dates for substantive hearings of the applications have not been set.  It would not be too onerous or cause significant delay were new solicitors to take over the matters.
  1. (xxix)
    The Respondent has an obligation to act as a model litigant.
  1. [91]
    I have reached the view, taking all of the above matters into account, that the fair minded reasonably informed Observer would not be concerned about the impact on the administration of justice were Ms Black to give evidence in the proceedings.  Firstly, Dr Spry has said that Ms Black will not be called as a witness.  I note that Mr Martin submitted the Commission would be asked to draw an adverse inference were she not called as a witness.  That she might ultimately be a witness does not of itself justify restraining her from continuing to act.[23]  Ms Freemantle has already admitted to making certain adverse remarks.  Further, it is doubtful that the Commission can make a finding on the words used given that a defamation action has been filed. 
  1. [92]
    However, a bigger issue arises for consideration.  Crown Law is acting for the State of Queensland with the client being the Department of Justice and Attorney-General and more specifically, Crown Law.  A number of its lawyers and certainly some of its most senior, may be required to be witnesses. There are obvious and serious reputational issues at stake in these proceedings for senior Crown Law and Departmental staff.  Certain senior officers are alleged to have taken reprisal action.  Their conduct and the reasons for that conduct are going to be closely examined in the proceedings.  These are very serious issues which, if proved, will have grave consequences. 
  1. [93]
    Notwithstanding the involvement of Dr Spry from the independent bar, there is a real issue as to whether decisions about the Respondent's conduct of the litigation will be made in the best interests of the State of Queensland when senior officers have direct interests in the outcome of the proceedings. 
  1. [94]
    In addition, the fair minded reasonably informed Observer would be concerned about the prospect of Ms Black's independence being compromised in taking instruction from and providing advice to more senior officers of Crown Law and her employer.  Ms Black is a lawyer junior to Ms Freemantle and Mr Cooper and ultimately responsible to him in her business unit.  She will also require to interface with Mr Mackie and Mr Rallings, again officers of the Respondent who are significantly more senior to her.  To counter this proposition, Dr Spry referred to Ms Black's capabilities when an issue about Mr Mackie's delegation was identified.  Mr Mackie subsequently provided an Affidavit, acting on her advice.  That matter was comparatively straight forward and despite Ms Black's professional competence she is likely to encounter more professionally challenging situations as this case unfolds given the seriousness of the allegations made against senior staff and their stake in proceedings.
  1. [95]
    Ms Black will also be required to act for other Solicitors who are more senior to her or at her classification level given the number of Crown Law staff who have been involved in the issues concerning Ms Parer and Mr Weston.  Again, the fair minded reasonably informed Observer would be concerned about her independence.
  1. [96]
    Further, Ms Black is also being required to act against fellow employees of Crown Law.  Another Crown Law Solicitor has already provided an Affidavit in support of Mr Weston.  There is real and significant likelihood of staff relationships being affected and damaged as a consequence of having Crown Law and Ms Black act for the Respondent.  Given the proceedings are being taken in the Queensland Industrial Relations Commission, this is an outcome that should be avoided.
  1. [97]
    Conclusion:  I am cognisant of the legal authorities that provide that a decision to restrain a lawyer from acting is exceptional and is to be exercised with caution.  Further, due weight is to be given to the public interest in not depriving a litigant of its choice of lawyer without due cause.  Another relevant consideration is that the State of Queensland has an obligation to act as a model litigant.  All of these factors weigh in favour of Crown Law and Ms Black being permitted to continue to act.
  1. [98]
    In my view, the potential for conflicts of interest, whether real or perceived, are many.  As Mr Martin noted, Crown Law did not provide evidence of the systems in place to handle the potential conflicts and assure the Commission of its independence.  This is despite the application for orders about representation clearly identifying these issues as ones to be addressed in these proceedings.
  1. [99]
    Against that, serious concerns exist about Crown Law acting largely as a self‑represented litigant and the ability of Ms Black to take instruction and provide independent advice given the potential number of Crown Law staff likely to be called to give evidence, the seniority of those staff, the seriousness of the allegations made against senior Crown Law and Departmental staff and the nature of the case to be conducted.  Very real potential exists for conflicts of interest to arise and the best interests of the State of Queensland to be comprised as well as significant staff disharmony were the orders about representation not to be granted.  Viewed in this way, this case is exceptional.
  1. [100]
    I am satisfied on an objective analysis that public confidence in the administration of justice, including the appearance of justice, would not be achieved if Crown Law and Ms Black continued to act for the Respondent.  To ensure that public confidence in the administration of justice is upheld, the best way forward is to ensure that the Respondent is represented by independent solicitors who do not have any real or perceived potential conflicts of interest and have no vested interest in the outcome of the litigation.
  1. [101]
    These proceedings are at an early stage, where no directions have been issued about the conduct of the substantive applications.  Although there will inevitably be some inconvenience, disruption and cost implications in changing representation, I consider that the prejudice to the Respondent at this stage will not be significant.
  1. [102]
    For these reasons, and in accordance with s 329(b)(ii) of the IR Act I make the order that Crown Law and Fiona Black cease to act as solicitors for the State of Queensland in B/2015/44, B/2015/45 and B/2015/51.

Orders:

  1. In B/2015/52:

 Application to dismiss Ms Parer's declaration application is granted.

  1. In B/2015/51:
  1. Application to dismiss Mr Weston's declaration application is refused; and
  2. Within 14 days, Mr Weston's declaration application is to be amended in accordance with this decision.
  1. In B/2015/44 and B/2015/51:

Application to join Mr Weston's s 120 application (B/2015/44) and his declaration application (B/2015/51):

  1. is granted; and
  2. evidence in one is to be treated as evidence in the other.
  1. In B/2015/45:
  1. Application to join Ms Parer's s 120 application (B/2015/45) with B/2015/44 and B/2015/51 is refused; and
  2. Ms Parer's s 120 application (B/2015/45) is to be heard concurrently with B/2015/44 and B/2015/51 to the extent possible.
  1. In B/2015/44, B/2015/45 and B/2015/51:

Application for Crown Law and Fiona Black to cease to act as solicitors for the Respondent is granted.

Footnotes

[1] Burton v Bairnsdale Shire [1908] HCA 57.

[2] Nugent v Aromas Pty Ltd (1996) 153 QGIG 630; Darling v Ultrarad Pty Ltd (1997) 155 QGIG 1342.

[3] Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 92; General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125, 129.

[4] QPSU v QFRS (2009) 192 QGIG 39, 41.

[5] Berenyi v Maynard & Anor [2015] QSC 370, [29].

[6] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [21]-[23].

[7] Ibid, [22], [37].

[8] Public Service Commission Chief Executive Guideline 01/13: Discipline, paragraphs 10, 11.9 and 13.

[9] Lewis v Heffer and Others [1978] 1 WLR 1061, 1073.

[10] Rucker v Stewart & Ors [2014] QCA 32, [13].

[11] The State of South Australia v O'Shea & Ors [1987] 163 CLR 378, 389.

[12] Rucker v Stewart & Ors [2014] QCA 32, [14].

[13] Preston v Carmody and Others (1993) 44 FCR 1, 14.

[14] Commonwealth v Verwayen [1990]170 CLR 394.

[15] Charlotte Brown and Another v Alan Myer Green and Others (1996) NSWIRComm 136.

[16] Both the State of Queensland and Mr Weston agree that the suspension was not disciplinary action.  Mr Martin then asks, correctly in my view, what the source of power was to suspend Mr Weston and how the provisions of s 190(2) apply if the suspension was not in the nature of disciplinary action.  This issue was not addressed by the State of Queensland.

Section 189 is headed "Suspension of a public service employee liable to discipline" and subsection (1) requires the chief executive to form a reasonable belief that the employee is liable to discipline under a disciplinary law.  However, Mr Rallings, who apparently, had delegated authority to suspend Mr Weston,* only held a reasonable belief that Mr Weston may be liable to discipline. (The delegation is in issue.)

Consideration was given to the suspension and the disciplinary provisions found in ss 137, 187, 188, 189 and 190 of the PS Act in Mason v MWREDC Limited ([2011] FCA 1512) a decision of Greenwood J in the Federal Court of Australia.  In that analysis, Greenwood J reached the conclusion that a difference exists between the word "is" in s 190 and the words "may be" as found in Mr Mason's suspension letter and, relevantly, Mr Weston's suspension letter.  This analysis raises questions whether the appropriate power to suspend Mr Weston was s 189 of the PS Act and if s 190(2) applied in the circumstances.  It also raises the question of the effect on the suspension if the wrong source of power was invoked.  In addressing these questions, relevant considerations might also include whether the conduct of the employer was fair, just and procedurally fair.

It is inappropriate in these interlocutory proceedings to determine whether the proper source of power to suspend was invoked.  I would simply note that if the correct source of power was s 137 then this section invokes "proper and effective management" considerations on the part of the chief executive.  These considerations are analogous to the second type mentioned by Lord Denning in Lewis v Heffer.

[17] United Australia Ltd v Barclays Bank Ltd [1941] AC 1.

[18] Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121, 134.

[19] Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181.

[20] Bolitho v Banskia Securities Limited & Ors [2014] VSC 582, [16].

[21] Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238, 245 (Thomas J).

[22] Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 [43].

[23] Larne-Jones v Human Synergistics Australia Limited & Ors [2012] FMCA 1209 [34] quoting Mitchell v Burrell [2008] NSWSC 772, [20].

Close

Editorial Notes

  • Published Case Name:

    Weston and Parer v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Weston and Parer v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2016] QIRC 37

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    01 Apr 2016

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
Berenyi v Maynard [2015] QSC 370
2 citations
Jump To
Cite 1 - [2015] QSC 370
Cite 2 - [2015] QSC 370
Bolitho v Banskia Securities Limited & Ors [2014] VSC 582
2 citations
Jump To
Cite 1 - [2014] VSC 582
Cite 2 - [2014] VSC 582
Brown v Green (1996) NSWIRComm 136
2 citations
Jump To
Cite 1 - (1996) NSWIRComm 136
Cite 2 - (1996) NSWIRComm 136
Burton v Bairnsdale Shire [1908] HCA 57
2 citations
Jump To
Cite 1 - [1908] HCA 57
Cite 2 - [1908] HCA 57
Commonwealth v Verwayen (1990) 170 CLR 394
2 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Darling v Ultrarad Pty Ltd (1997) 155 QGIG 1342
2 citations
Jump To
Cite 1 - (1997) 155 QGIG 1342
Cite 2 - (1997) 155 QGIG 1342
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 238
Cite 2 - [1984] 1 Qd R 238
Kallinicos v Hunt & Ors [2005] NSWSC 1181
3 citations
Jump To
Cite 1 - [2005] NSWSC 1181
Cite 2 - [2005] NSWSC 1181
Cite 3 - [2005] NSWSC 1181
Larne-Jones v Human Synergistics Australia Limited & Ors [2012] FMCA 1209
2 citations
Jump To
Cite 1 - [2012] FMCA 1209
Cite 2 - [2012] FMCA 1209
Lewis v Heiffer (1978) 1 WLR 1061
2 citations
Jump To
Cite 1 - (1978) 1 WLR 1061
Cite 2 - (1978) 1 WLR 1061
Mason v MWREDC Limited [2011] FCA 1512
2 citations
Jump To
Cite 1 - [2011] FCA 1512
Cite 2 - [2011] FCA 1512
Mitchell v Burrell [2008] NSWSC 772
2 citations
Jump To
Cite 1 - [2008] NSWSC 772
Cite 2 - [2008] NSWSC 772
Nugent v Aromas Pty Ltd (1996) 153 QGIG 630
2 citations
Jump To
Cite 1 - (1996) 153 QGIG 630
Cite 2 - (1996) 153 QGIG 630
Preston v Carmody (1993) 44 FCR 1
2 citations
Jump To
Cite 1 - (1993) 44 FCR 1
Cite 2 - (1993) 44 FCR 1
Rucker v Stewart [2014] QCA 32
3 citations
Jump To
Cite 1 - [2014] QCA 32
Cite 2 - [2014] QCA 32
Cite 3 - [2014] QCA 32
South Australia v O'Shea (1987) 163 C.L.R 378
2 citations
Jump To
Cite 1 - (1987) 163 C.L.R 378
Cite 2 - (1987) 163 C.L.R 378
The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39
2 citations
Jump To
Cite 1 - (2009) 192 QGIG 39
Cite 2 - (2009) 192 QGIG 39
United Australia Ltd v Barclays Bank Ltd (1941) A.C., 1
2 citations
Jump To
Cite 1 - (1941) A.C., 1
Cite 2 - (1941) A.C., 1
Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121
2 citations
Jump To
Cite 1 - (1994) 53 IR 121
Cite 2 - (1994) 53 IR 121
Wirth v Mackay Hospital and Health Service [2016] QSC 39
2 citations
Jump To
Cite 1 - [2016] QSC 39
Cite 2 - [2016] QSC 39

Cases Citing

Case NameFull CitationFrequency
Parer v Queensland (No 4) [2016] QIRC 1233 citations
Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 762 citations
Queensland v Parer [2016] ICQ 132 citations
1

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