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  4. Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3) - [2016] QIRC 84

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Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3)[2016] QIRC 84

Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3)[2016] QIRC 84

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3) [2016] QIRC 084

PARTIES: 

Parer, Siobhan Maree

(Applicant)

v

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

(Respondent)

CASE NO:

B/2015/45

 

PROCEEDING:

Application for State employee to give evidence

 

DELIVERED ON:

11 August 2016

HEARING DATE:

11 August 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDER:

Application refused.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR STATE EMPLOYEE TO GIVE INFORMATION – where respondent disputes admission of documents – where respondent strongly objects to application – where procedures available under the Rules – where documents are not uncontroversial – whether documents may or may not be authenticated – where witnesses not called to provide contextual evidence – where no case law – whether weight could be given to documents – where determined not to proceed under s 324

CASES:

Industrial Relations Act 1999, s 320, s 324

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 and with him Mr C.J. Murdoch, Counsel instructed by Minter Ellison Lawyers for the Respondent.

Reasons for Decision (as edited)

  1. [1]
    When the Applicant made an application under s 320 of the Industrial Relations Act 1999 on Friday 5 August 2016, both parties opened the door to the use of s 324 as an alternative means by which the disputed documents could be put before the Commission.  Because of that seeming common attitude, the Commission was amenable to an application being made by the Applicant.
  1. [2]
    When the Applicant made the application on Monday, the Respondent shut the door on it, from its perspective, and then locked and bolted it on Tuesday.
  1. [3]
    The Applicant has made various attempts to have the documents put before the Commission using other than the standard procedures provided by the Rules and in circumstances where the Applicant's Solicitors had notified a number of people, including the authors of the documents in question, of the possibility that they might be called by the Applicant to give evidence in the proceedings.
  1. [4]
    The Commission only learnt on Tuesday that the Respondent disputed the admission of the documents because they could not be shown to a witness.  As I understand it, the documents are not uncontroversial, which it seems reinforces the parties' respective attitudes to the application.
  1. [5]
    The application under s 324 seeks to have the documents admitted on the basis of having them authenticated by Ms de Bortoli.  She may, or may not, be able to inform the Commission about the authenticity of the documents but will be unable to provide contextual evidence.   Were the Commission to request the authors of the documents to authenticate them, I would not be embarking on an inquisitorial process and the authors would not be required to give oral evidence.
  1. [6]
    Were the documents to be admitted pursuant to s 324 in the circumstances outlined there is a legitimate question to be asked about the weight that could be given to them in the absence of contextual evidence.  On one view it could be argued that is a risk that the Applicant takes but the Commission must exercise its powers appropriately and responsibly.
  1. [7]
    Given the history of this litigation and as foreshadowed in the Respondent's submission, were I to proceed down the path of s 324 by asking either Ms de Bortloi or the authors of the documents to authenticate them, that will invite a response from the Respondent which may include other possible objections or interventions and inevitably, delay.  For example, the Respondent has foreshadowed the prospect of having to call other witnesses to give contextual evidence.
  1. [8]
    Alternatively, if I do not act under s 324 then documents that are apparently important to the Applicant's case may not be put before the Commission.  She does have of course the conventional means under the Rules available to achieve this outcome but this of necessity will cause her to incur further costs and will also risk delay.
  1. [9]
    This litigation has already involved significant expenditures of time and cost for both parties.  It is inevitable that regardless of the decision I make that there will be additional time and cost implications, both of which I had hoped to avoid when previously expressing an inclination to act under s 324.
  1. [10]
    The question that must be asked is whether the Commission should play an active part in the proceedings by requesting employees of the State to provide information, which apparently is controversial, directly to me over the strong objection of one party.  It is an unorthodox approach and, as the absence of case law demonstrates, a request under s 324 is not one which is made much, if at all.
  1. [11]
    Ultimately, the decision rests on whether s 324 is a responsible and appropriate exercise of my powers in the circumstances I have outlined.  I have reached the conclusion after careful consideration of the competing arguments, and, despite my earlier indication, to not proceed to exercise my powers under s 324.  I am not satisfied that it will produce the outcome I had anticipated because of the consequences that will flow.  In addition, even were the documents to be admitted pursuant to s 324, I have concerns about the probative value of and the weight that can be reasonably given to the documents in the absence of evidence about context. In short I consider that to act under s 324 requires an unorthodox approach to be employed in contentious circumstances for doubtful utility.
  1. [12]
    I order accordingly.
Close

Editorial Notes

  • Published Case Name:

    Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3)

  • Shortened Case Name:

    Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3)

  • MNC:

    [2016] QIRC 84

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    11 Aug 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Parer v Queensland (No 4) [2016] QIRC 1232 citations
1

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