QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075 |
PARTIES: | Weston, Jeremy Simon (Applicant) and Parer, Siobhan Maree (Applicant) v State of Queensland (Department of Justice and Attorney-General) (Respondent) |
CASE NOS: | B/2015/44 B/2015/45 B/2015/51 |
PROCEEDING: | Application for Disclosure Orders |
DELIVERED ON: | 25 July 2016 |
HEARING DATE: | 27 June 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | The Respondent disclose to the Applicants:
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CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR DISCLOSURE – disclosure and inspection of documents – whether the disclosure order sought for each category of the disputed documents is to be made or not – where respondent opposes disclosure of certain categories on the grounds of oppression and relevance – where issues about delegation – whether furtherance of reprisal action – whether comparative treatment of the applicants with other legal employees of the respondent |
CASES: | Industrial Relations (Tribunals) Rules 2011, r 41(2)(o), r 46 Murrays Australia Ltd v Training Recognition Council and Others (2002) 170 QGIG 11 Henderson Greetings Pty Ltd AND Bernadette Andrews (1999) 160 QGIG 47 Compagnie Financiere du Pacifique v. Peruvian Guano Co. (45) (1882) 11 QBD 55 Queensland Nurses' Union of Employees AND Sundale Garden Village, Nambour (2004) 177 QGIG 861 Mulley v Manifold (1959) 103 CLR 341 Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No 4) [1995] FCA 1418; (1995) 131 ALR 581 Patrick Stevedores No. 1 Limited Print P8680 Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125 |
APPEARANCES: | Mr L.S. Reidy, Counsel instructed by Susan Moriarty & Associates for the Applicants. Mr J.E. Murdoch, QC instructed by Minter Ellison Lawyers for the Respondent. |
Decision
"(c) An order that the Respondent make disclosure of the documents in Schedule 1 to this Application by 4.00 pm on 28 June 2016 by filing a list of those documents in the Commission and serving the list on the Applicants pursuant to section 41(2)(o) of the Industrial Relations (Tribunals) Rules 2011.
(d) An order that the Respondent make copies of and provide to the Applicants copies of any documents on the list requested by the Applicants by no later than 4.00 pm 1 July 2016 pursuant to section 41(2)(o) of the Industrial Relations (Tribunals) Rules 2011."
"(i) The documents sought are irrelevant to the issues raised by the applications;
These categories of documents concern "employment matters" of the Applicants. Without making any concession, the Respondent admits to disclosing certain documents that fall in these categories where they genuinely relate to a matter in issue. However, the Respondent opposes disclosure of these categories on the grounds of oppression and relevance. In particular, the Respondent contends that the demand is not limited by reference to the issues with the result that much irrelevant material arises.
Category 2 requests disclosure of documents in connection with "employment matters" in three categories for the period 18 February 2015 to 12 April 2016. At paragraphs (b) and (c) documents are requested in respect of 12 nominated people. These paragraphs are followed by a list of examples of documents that fall within the categories. The term "employment matters" is then defined as "work performance or conduct, employment status; terms and conditions of employment; workplace disputes, complaints or grievance matters likely to cause disagreement or friction; the treatment of the Applicants in the workplace". A further explanation, which is said not to limit the "employment matters", follows, with eight matters listed including the "expressions of opinion about the Applicants or each of them by Mr Cooper, Ms Freemantle, Ms Watson, Ms Hamilton, Ms Black, Mr Mackie, Mr Rallings, Ms McDermott or Mr Woods". The Applicants attempt to relate relevance back to the "employment matters" as defined.
The documents sought not only overlap with other categories but also extend beyond the more specific categories of disclosure. In my view, the request for disclosure is complex and not readily understood especially by the inclusion of broad descriptors as "matters likely to cause disagreement or friction" in the definition of "employment matters". The category of documents mentioned in the second part of the explanation is also broad. I consider the documents sought are not confined to the matters in issue.
No case authorities on the issue of oppression in disclosure applications were provided to the Commission. However, the Respondent referred to a decision of Ross VP, where, in discussing the judgment required to be exercised by a tribunal in requests for disclosure, he commented that it requires a balance between the reasonableness of the burden imposed on the disclosing party and the public interest in the administration of justice.[7] The Applicants argue that the Respondent has a sophisticated document management system which would alleviate any burden placed on it. However, in my view, if disclosure is ordered, the Respondent would be required to expend significant resources in locating documents on a broad and sometimes unclear range of subjects and involving multiple staff in circumstances where the relevance of the documents is questionable.
The task is burdensome and in large part duplicates the disclosure sought in other categories. Because the burden is not reasonable and the breadth of the material sought extends to documents that are not relevant, disclosure for Category 2 documents is refused.
Category 3 seeks documents not otherwise provided in Category 2, and according to the Applicants, it specifically focusses on meetings in a specified period between any of nine listed people at which the "employment matters" were discussed. The Applicants contend that the request was "unremarkable".
Disclosure is opposed on the grounds of relevance and oppression.
Although I accept that disclosure is available where it would lead to a train of enquiry which would, either advance a party's own case or damage that of their adversary, the Applicants have not satisfied me that disclosure of documents in this case are relevant. In addition, given the number of people makes the task burdensome for the Respondent.
The request for disclosure is therefore refused on the grounds of relevance and oppression.
During the hearing, in written submissions and in the Table of Documents prepared by the Applicants, examples of incomplete disclosure were given. These matters were not addressed in any detail but some documents appear to be not yet disclosed e.g. documents disclosing Mr Cooper's involvement. Consistent with earlier advice given by the Respondent, its focus is properly directed towards the continuing assessment of documents that the Applicants contend have not been disclosed and which are relevant to the matters in issue. The Commission accepts the Respondent is aware of its continuing obligation to disclose and is proceeding to assess the disclosure of further relevant documents.
The documents sought, including emails, diary entries, notes and memoranda concern the activities, location, and movements of Mr Rallings and Ms McDermott in specified periods. The request was not originally limited, for example, by reference to working hours or week days.
The Applicants contend that the documents sought are to establish factual matters and do not go to matters of credit.
The Respondent opposes disclosure sought in paragraphs (a) and (b) concerning the activities, location, and movements of Mr Rallings on the basis that the request is intrusive but moreover the documents are sought only for the purpose of challenging Mr Rallings' credit. Further, the extent of the disclosure is oppressive.
In response to the criticisms by the Respondent, the Applicants, amended the request in paragraphs (a) and (b) so that it concerned work activities only.
I accept the submissions that (a) and (b) concern Mr Rallings' credit and given this is not a grounds for ordering disclosure,[8] no order for these documents is made.
Paragraph (c) was deleted.
Paragraph (d) goes to the circumstances of the Director-General of the Respondent delegating Mr Rallings and Ms McDermott as the decision‑makers on certain matters. The Respondent objects to disclosure of the documents falling within this paragraph on the grounds of relevance. The documents sought in (d) appear to overlap with Category 8.
It is not in issue that the delegations were made. What is in issue is the circumstances of the delegations, whether the delegations are valid and whether they were for the purposes of reprisal. This is a key issue in the proceedings. Accordingly, the request for disclosure made in paragraph (d) is relevant to facts in issue and disclosure is ordered.
The documents sought go to the treatment of the Applicants compared to other legal employees over a period of five years.
The Respondent comprehends the comparative treatment complaint to be that the Applicants were subjected to suspension and show cause whereas Ms Freemantle and another supervisor, Mr Stella were not. However, the request is not confined to these two staff but extends to the approximately 125 legal staff employed in Crown Law. The Respondent contends the Applicants could only be hoping to build a case based on what the disclosed documents might reveal. It is submitted that the request is in the nature of a fishing expedition in the prospect of finding evidence to discover whether there is a case. Further, a comparative treatment argument is not a relevant matter in these proceedings.
The Respondent also argues the request is oppressive because it would be a significant burden to examine relevant files for the number of staff employed over the five year period.
Although a key issue in the proceedings is the treatment of the Applicants that is to be considered on objective grounds. How other legal employees were treated in other undefined circumstances is not relevant to the matters to be determined in these proceedings. The Commission also accepts that it would be a burden on the Respondent to undertake the disclosure request given the number of legal staff employed in Crown Law. For these reasons, no disclosure of documents falling within these categories is ordered.
This category concerns the making of the delegations to Mr Rallings and Ms McDermott. Disclosure is opposed on the grounds of relevance as the validity of the delegations is not in issue and the Applicants cannot seek to impugn their validity. Further, the request sought is oppressive because it is for a broad range of documents.
The Applicants contend that the delegations are in issue and identify various paragraphs of their affidavits to support this contention.
The Applicants have taken issue with the delegation of Mr Rallings as a person who is not a lawyer and the delegation of Ms McDermott as a decision‑maker at the time the various applications were on foot in the Commission. The Applicants contend Ms McDermott's delegation at this time was in furtherance of the reprisal action against them.
The Commission accepts that these are key issues for the Applicants and further, they have taken issue with the validity of the delegations. The Commission further accepts these are relevant matters and an order for disclosure should be made.
However, this category overlaps with category 5(d). Although it seems that Category 5(d) will capture all documents relevant to these issues, for completeness, I am prepared to make the order sought in category 8 but limited to disclosure of documents not otherwise disclosed in category 5(d).
The documents sought concern the apologies made by Ms Freemantle after making certain comments about Mr Weston. Paragraph (a) concerns the involvement of the Crown Solicitor and the Director-General in the apologies. Paragraphs (b) to (d) relate to drafts of the apology, the persons involved in the drafting or approving the drafts, other apologies given by Ms Freemantle over the last five years and other apologies given by officers at the level of Assistant Crown Solicitor or above in the last five years.
The Respondent objects to disclosure in each paragraph on the grounds of relevance and in relation to paragraph (d), on the additional ground of oppression.
The Commission considers that except for paragraph (a), the documents are not relevant. This is because it is not in issue that Ms Freemantle made the apologies. Further, the request for disclosure of other apologies made by Ms Freemantle is a fishing expedition. The requests for other apologies over the last five years is burdensome and is not relevant.
In relation to paragraph (a), the Applicants are awaiting advice from the Solicitors for the Respondent that all documents have been provided. Given this disclosure has occurred, the relevance of this is accepted and the Respondent has undertaken to finalise disclosure by 1 July 2016, it is unnecessary to make any order concerning paragraph (a).
This Category concerns the disclosure of documents in a defined period in relation to the activities of the Strategic Leadership Team concerning or about the employment matters of the Applicants.
The Commission accepts the Respondent's submission that the Applicants have not disclosed any decision of the Strategic Leadership Team that is relevant to a matter in issue. No order for disclosure is made.
These Categories concern, amongst other matters, performance reviews of the Applicants, any positive recognition they may have received as well as client or staff complaints about them over the last five years.
The Applicants submit that the documents in these categories are relevant to show the comparative treatment of the Applicants with other legal employees of the Respondent.
The Respondent opposes all categories on the grounds of relevance and also contends that category 23 (positive recognition) is oppressive.
The Commission considers disclosure in these categories is not relevant to the matters in issue. No order for disclosure is made.
This Category concerns documents concerning the alleged defamatory comment made by Ms Freemantle about Mr Weston at the meeting on 18 February 2015.
The Respondent accepts that words were spoken by Ms Freemantle on 18 February 2015 and that fact, the Respondent contends, is beyond dispute. Therefore the Respondent opposes disclosure of documents in this category on the grounds of relevance.
There is no dispute that Ms Freemantle made a comment about Mr Weston at a meeting on 18 February 2015. As a result, disclosure of all documents concerning the alleged defamatory comment is irrelevant. No order for disclosure is made.
Orders
[1] Murrays Australia Ltd v Training Recognition Council and Others (2002) 170 QGIG 11, 12.
[2] Henderson Greetings Pty Ltd AND Bernadette Andrews (1999) 160 QGIG 47, 48.
[3] Compagnie Financiere du Pacifique v. Peruvian Guano Co. (45) (1882) 11 QBD 55, 63; Queensland Nurses' Union of Employees AND Sundale Garden Village, Nambour (2004) 177 QGIG 861, 864 citing Mulley v Manifold (1959) 103 CLR 341, 345; Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No 4) [1995] FCA 1418; (1995) 131 ALR 581.
[4] Patrick Stevedores No. 1 Limited Print P8680.
[5] Ibid.
[6] Murrays Australia Ltd, op cit, citing Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125.
[7] Patrick Stevedores No. 1 Limited Print P8680.
[8] Murrays Australia Ltd, op cit, citing Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125.
