Parer v State of Queensland (Department of Justice and Attorney-General)
[2016] QIRC 76
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- Unreported Judgment
- Parer v State of Queensland (Department of Justice and Attorney-General)[2016] QIRC 76
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Parer v State of Queensland (Department of Justice and Attorney-General)[2016] QIRC 76
Parer v State of Queensland (Department of Justice and Attorney-General)[2016] QIRC 76
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 076 |
PARTIES: | Parer, Siobhan Maree (Applicant) v State of Queensland (Department of Justice and Attorney-General) (Respondent) |
CASE NOS: | B/2015/45 |
PROCEEDING: | Application for Further Particulars to Amended Application |
DELIVERED ON: | 20 July 2016 |
HEARING DATE: | 20 July 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | Application refused. |
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR FURTHER PARTICULARS TO AMENDED APPLICATION FOLLOWING DISCLOSURE – where respondent objects to the amendments – where prejudice could have been avoided – where applicant not sought to amend application to expand alleged prohibited conduct |
CASES: | Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 Weston & Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 037 |
APPEARANCES: | Mr P.J. Callaghan, SC and with him Mr L.S. Reidy, Counsel instructed by Susan Moriarty & Associates for the Applicant. Mr J.E. Murdoch, QC instructed by Minter Ellison Lawyers for the Respondent. |
Reasons for Decision
- [1]Shortly before the hearing of this (and other) applications was due to commence on Monday 18 July 2016, Ms Parer's legal representatives provided to the Respondent a document entitled "Further Particulars for Attachment 'A' to the amended application following disclosure". The particulars have been amended by inserting the words, "the initiation and continuation of a process of a disciplinary nature leading to" and adding to the list of actors, to use Mr Murdoch's word, from Crown Law who are said to have participated in the prohibited conduct. The Respondent objects to the amendments to the particulars in their entirety.
- [2]Although I accept that pleadings are not required in this jurisdiction and that authorities dealing with the amendment of pleadings may not be directly on point, I consider it is incumbent on the Applicant to provide a cogent explanation for the delay in providing the amended particulars. This is especially important given the proximity of the amendments to the commencement of the hearing and the impact that acceptance of them would have on the Respondent's case.
- [3]The explanation given is that on receipt of the Respondent's affidavits the attempt was made to ascertain what was being admitted and denied. Further, the amendments should come as no surprise to the Respondent because the particulars had always made provision for further particulars to be provided on "full and proper disclosure" being made by the Respondent. The volume of documents disclosed, the time when they were provided and the claim by the Respondent of legal professional privilege over a substantial number of documents impacted on the timing of the amendments to the particulars.
- [4]That explanation might have had some traction had it not been for the Applicant's submission that "it was always going to be necessary to consider whether the process that preceded the suspension (and, I interpolate, or other alleged prohibited conduct), was so tainted as to invite the conclusion that the conduct was as alleged." Given it was always the Applicant's intention to have the preceding process considered to the extent it now seeks to do, then the words "the initiation and continuation of a process of a disciplinary nature leading to" could and should have been inserted at any time as and from the filing of particulars. It might have been obvious from the Applicant's perspective that these matters were to be examined but it was incumbent on the Applicant to ensure that the Respondent was clear about the case it had to meet from her application and particulars. Such an approach is especially important when the Applicant makes serious allegations against officers of the Respondent and seeks civil remedies.[1]
- [5]I have considered the prejudice that would be caused to the respective parties if permission is granted or refused. However, despite the prejudice that might be caused to the case the Applicant wishes to run by refusing permission, that prejudice could have been avoided by seeking earlier amendments.
- [6]In the circumstances the explanation for the delay is defeated by the admission that it was always to be the case that the preceding process was to be considered. Accordingly, I do not permit the amendment of the particulars by the inclusion of the words, "the initiation and continuation of a process of a disciplinary nature leading to" wherever they are inserted.
- [7]In my view, the exclusion of this amendment has the consequence that the amendment of the particulars to include additional actors falls away. However, I should add that the Applicant's own material which has been filed for some time, identifies Ms Freemantle, Ms Black and Ms Hamilton in particular as being involved in matters she considers relevant to this litigation. In the proceedings to have Crown Law and Ms Black cease acting from the Respondent, Ms Parer's then Counsel made submissions (recorded at paragraphs [79] to [82] of my decision of 1 April 2016[2]) about the integral involvement of Ms Freemantle and Ms Black in those matters. While a clearer picture of the extent and the nature of their involvement may have come to light through the disclosure process or on receipt of the Respondent's affidavits, it is apparent that the Applicant has known for some months of their involvement and as a result could and should have at a much earlier time amended the particulars to include these officers.
- [8]This leaves the other Crown Law Solicitors who the Applicant seeks to include in the disciplinary processes. Although arguments have been advanced about whether legal professional privilege attaches to their advice and whether such advice can nonetheless constitute reprisal action, the most relevant consideration from my perspective is what the issue is that requires determination. The Application makes clear that is whether the Respondent, through the decision-makers, Mr Rallings and Ms McDermott, engaged in prohibited conduct. And it is that conduct, which, if established, attracts civil remedies. The Applicant has not sought to amend her application to expand the alleged prohibited conduct beyond the decision-makers to include the conduct of those now sought to be included in the particulars.
- [9]I am also concerned about the inclusion of the word "including" in the amended particulars listing the actors. This is a non-exhaustive term and it is clear from a response by Mr Callaghan to a question from me that the list might expand. At some point it is necessary to contain the litigation and not leave one party dangling, wondering whether it will be faced with fresh claims.
- [10]For these reasons, I decline to permit the particulars to be further amended as sought.
- [11]I order accordingly.