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CITE

Unreported Judgment

Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2)[2020] QIRC 185Member Pidgeon IC
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Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2)[2020] QIRC 185

_{QUEENSLAND INDUSTRIAL RELATIONS COMMISSION}

_CITATION:

_{Mohr-Edgar v State of Queensland (Legal Aid Queensland) & Ors}_{(No. 2) [2020] QIRC 185}

_PARTIES:

_{Mohr-Edgar, Sandra}

_{(Complainant)}

_{State of Queensland (Legal Aid Queensland)}

_{(First Respondent)}

_And

_{Paul Davey}

_{(Second Respondent)}

_And

_{Nicky Davies}

_{(Third Respondent)}

_And

_{Toni Bell}

_{(Fourth Respondent)}

_{CASE NO:}

_AD/2019/67

_PROCEEDING:

_{Application in existing proceedings}

_{DELIVERED ON:}

_{27 October 2020}

_{HEARING DATES:}

_{12 June 2020}

_MEMBER:

_{HEARD AT:}

_{Pidgeon IC}

_Brisbane

_ORDER:

_{The Non-Party Disclosure notice regarding Telstra is set aside, except for the following phone records which Ms Mohr-Edgar is to have disclosed to her: records of phone calls made by Ms Hawkings-Guy to Ms Dean on 9 May 2018 between 8.30am and 10.00am.}

_{The Non-Party Disclosure Notice directed at Barr Consulting Group is upheld and Ms Mohr-Edgar is to receive the documents sought (including recordings).}

_{With regard to the Attendance Notice directed at Legal Aid Queensland, the following are to be provided to the Ms Mohr-Edgar with the remainder of the items struck out:}

_{The 2016 emails regarding the ICL file must be provided to the extent that they exist and are able to be located. If they cannot be located, a document demonstrating that a search took place must be provided to the Applicant.}
_{For the client Ms Dean and Ms Hawkings-Guy recalled discussing when providing information to the external investigator, the client file/client advice up to and including 9 May 2018 to be provided to the Applicant.}
_{Internal LAQ emails regarding the Applicant's RTI and IP access applications and the OIC external reviews for the period prior to Victimisation Complaint 5 being made.}
_{To the extent that information requested to establish past economic loss exists, it must be provided. If no such information is available, Ms Mohr-Edgar should be provided with correspondence to this effect.}

_{That the notices as amended above, be complied with within 14 days of the release of this decision.}

_CATCHWORDS:

_{ANTI-DISCRIMINATION - DISCRIMINATION AND VICTIMISATION IN THE WORKPLACE - application in existing proceedings - where complainant served attendance notices to produce - where respondents object to production on grounds of relevance - whether Commission should set aside part or all of attendance notice.}

_LEGISLATION:

_{Anti-Discrimination Act 1991}_(Qld)

_{Industrial Relations (Tribunals) Rules 2011}_{(Qld) r 41 and r 46}

_CASES:

_APPEARANCES:

_{Commissioner of Police v Hughes}_{[2009] NSWCA 306}

_{Compagnie Financerie et Commerciale du Pacifique v Peruvian Guano Co}_{(1882) 11 QBD 55}

_{DP World Brisbane Pty Ltd v Rogers & Anor}_{[2014] ICQ 10}

_{Kelsey v Logan City Council & Ors}_{(No 6) [2018] QIRC 115}

_{Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4)}_{[2016] QIRC 75}

_{Ms S Mohr-Edgar, the Complainant in person.}

_{Ms J Marr of counsel instructed by Crown Law for the Respondent.}

_{Reasons for Decision}

_Introduction

[1]
_{Ms Mohr-Edgar, Complainant in the substantive matter, has filed the following with the Industrial Registry:}

_{Form 32B Attendance Notice to Produce requesting Legal Aid Queensland (LAQ) to produce the following documents, in summary:}

_{2016 Complaint Response;}
_{2016 Emails;}
_{documents in relation to Anti-Discrimination Commission Queensland (ADCQ) and this Commission's proceedings;}
_{Office of the Information Commissioner Queensland (OIC) External Review (ER) correspondence;}
_{client file/advice documents referred to in External Investigation and LAQ submissions to the OIC;}
_{communications between the Governance Team and the PCC Team about the applicant's Right to Information (RTI) and IP access applications and external reviews to the OIC;}
_{external investigation recordings of interviews;}
_{Ms Camden's work mobile number (for the purpose of obtaining Telstra phone records); and}
_{information relevant to past-economic loss.}

_{Form 29 – Notice of non-party disclosure filed 29 April 2020 directed to Telstra requesting, in summary:}

_{May 2018: records of phone communications for 8-9 May and October 2018: records of phone communications for period of 8-9 October for all incoming/inbound phone communications received from external or internal phone numbers including date, time and duration of each communication:}

_{Jessica Dean (number listed)}
_{Lyndi Hawkings-Guy (number listed)}

_{Form 29 – Notice of non-party disclosure filed 30 April 2020 directed to Barr Group BCM Pty Ltd (Barr Group Consulting):}

_{For the external investigation conducted by Rod Hayes of Barr Group Consulting for LAQ in or around September-October 2018 (Mohr-Edgar matter):}

a)_{All recordings of the interviews conducted including those of Jessica Dean, Lyndi Hawkings-Guy and Sandra Mohr-Edgar.}

[2]
_{The Respondent in the substantive matter has filed the following objections:}

_{Objection to the Attendance Notice to Produce}
_{Objection to Notice of Non-Party Disclosure – Barr Group Consulting}
_{Objection to Notice of Non-Party Disclosure – Telstra Corporation}

[3]
_{The parties filed written submissions/outlines of argument and a hearing was held on 12}_{June 2020.}

[4]
_{The history of this matter is that large amounts of information and multiple applications in existing proceedings had been made prior to any hearing directions being issued. At a mention on 29 January 2020, Ms Mohr-Edgar was requested to file amended/updated material in order to narrow the matters at issue between the parties.}

[5]
_{Disclosure occurred and the notices filed are seeking materials not disclosed and additional non-party material.}

_{The relevant legislative provisions and legal framework}

_{The Industrial Relations (Tribunals) Rules 2011}

[6]
_{Rule 41(1) of the}_{Industrial Relations (Tribunals) Rules 2011}_{('the Rules') relevantly provides that the Commission may make a directions order about the conduct of the proceeding on the application of a party or on the initiative of the Commission. Rule 41(2)(o) provides that a directions order may relate to requiring disclosure of documents and r 41(2)(p) provides that a directions order may relate to requiring inspection of documents.}

[7]
_{Rule 46 of the Rules deals with the duty of disclosure and provides:}

₍₁₎_{If a directions order requiring disclosure of documents is made, a party must disclose any document that—}

_(a)_{is relevant to the proceeding or a matter in issue in the proceeding; and}

_(b)_{is in, or comes into, the possession of the party.}

₍₂₎_{A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.}

₍₃₎_{Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.}

[8]
_{The scope of rr 41 and 46 was reviewed in}_{Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4)}^[1]_{where Commissioner}_{Fisher stated:}

[4]
_{The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:}

_{A decision of the Commission to order disclosure is a quintessential exercise of discretion.}
_{To be discoverable a document must relate to the question or issues to be decided by the proceedings.}
_{A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.}
_{A party will not be required to produce documents where to do so would be oppressive.}
_{A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.}
_{Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.}^[2]

[9]
_{There was discussion at the hearing regarding the test arising from}_{Compagnie Financerie et Commerciale du Pacifique v Peruvian Guano Co}_{(1882) 11 QBD 55}_{(Peruvian Guano). In}_{Kelsey v Logan City Council & Ors}_{(No.6) [2018] QIRC 115 (}_Kelsey_{No. 6), His Honour considered that Peruvian Guano remains the test of general application for discovery in the Commission:}

_{In the Supreme, District and Magistrates Courts, r 211 of the UCPR requires that each party has a duty to disclose each document in its possession or under its control that is}_{directly relevant}_{to an allegation in issue in the pleadings, or a matter in issue in the proceeding. Unlike what is required by Rule 46 of the Rules, the directly relevant test is intended to impose a threshold on the process of discovery. It replaced the old Peruvian Guano test. The Peruvian Guano test requires disclosure of every document relating to matters in question in the proceeding including those containing information which could directly or indirectly enable either party to advance its own case.}^[3]

[10]
_{In making some general observations in}_Kelsey_No.6_{His Honour said:}

_{The current approach within the Commission for discovery as expressed in Rule 46 reflects the Peruvian Guano test or "train of inquiry" approach. This test, as noted above, enables documents to be discovered that are not directly relevant but that may fairly lead the parties to a train of inquiry that would advance their own case or damage their adversary's case.}

_{In my view, the test ought to be narrowed to reflect modern practice so as to require discovery of documents that are directly relevant to the issues in dispute. The advantages are that such a test reflects the approach in the UCPR and will assist to reduce the time and cost involved in the discovery process. Importantly in this jurisdiction, it is likely to assist in focusing the parties' minds on the parameters of discovery and to narrow the issues to be determined by the Commission at the hearing.}^[4]

[11]
_{Rule 64B of the Rules deals with notices requiring non-party production:}

(1)
_{A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the}_non-party_{) to produce to the party, within 14 days after service of the notice on the non-party, a document--}

(a)
_{Directly relevant to a matter in issue in the proceeding; and}

(b)
_{In the possession or under the control of the non-party; and}

(2)
_{The party may not require production of a document if there is available to the party another reasonable simple and inexpensive way of proving the matter sought to be proved by the document.}

(3)
_{The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.}

(4)
_{The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.}

[12]
_{President Martin refers to a decision in}_{DP World Brisbane Pty Ltd v Rogers & Anor}^[5]_{regarding principles to consider issuing or setting aside a notice:}

_{The principles which should be applied by the Commission when considering whether to issue a notice (or to set one aside under r 61, IRTR) were considered by Munro J when he dealt with the cognate provisions in the Commonwealth legislation. I respectfully adopt what he said:}

_{“The power to compel production is discretionary and not mandatory in the sense of giving any person, intervener or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.}

_{In its exercise of a broad discretion and judgment over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the ‘Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate …. A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.}^[6]

[13]
_{Legitimate forensic purpose was examined by Young JA in}_{Commissioner of Police v Hughes:}^[7]

_In_{R v Saleam}_{[1999] NSWCCA 86 at [11], Simpson}_{J (with whom Spigelman}_{CJ and Studdert}_{J agreed) said:}

_{Before access is granted … the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.}^[8]

_{Notice of Non-Party Disclosure: Telstra records}

[14]
_{The phone records of 8 May 2018 are claimed to prove an element of victimisation per s}_{130(1)(a)(iii)}_{Anti-Discrimination Act 1991}_{(AD Act) in relation to Ms Mohr-Edgar's 'threatened transfer' as outlined in her first complaint of victimisation.}

[15]
_{Ms Mohr-Edgar states the 9 May 2018 phone records are relevant to victimisation contention one which alleges that Ms Dean threatened to transfer her out of Family Law Services during a phone conversation with Ms Hawkings-Guy between 8.30am and 10.00am. Ms Mohr-Edgar expands on the details of what she overheard in attachment A of her statement of facts and contentions at paragraph 52.}

[16]
_{Ms Mohr-Edgar submits the phone records of 9 October 2018 are relevant to her third contention of victimisation, specifically in regards to 'collusion between witnesses' ahead of the external investigation. The records are required to establish the first step of s}_{130(1) of the AD Act in demonstrating that a phone call occurred at all. Further reference to the phone conversation is found in at paragraphs 78-81 of Ms Mohr-Edgar's statement of facts and contentions attachment A.}

[17]
_{Ms Mohr-Edgar argues that she only seeks the phone records for a limited ambit of four specific dates for two numbers and that this is for a legitimate forensic purpose. She says that the Respondents won't make any admissions or concessions that the phone calls occurred on the dates alleged but argue that if they did, then they were about something else.}^[9]_{She says that to narrow the time periods the records are requested for is impractical in circumstances where Telstra produces records and charges a fee for these records per phone number, per day.}

[18]
_{Once the existence of the phone calls has been established, Ms Mohr-Edgar states that she can move on to the matter of the content of those calls, which have the potential to narrow the issues in dispute substantially, or even eliminate some contentions all together. She says that if the phone calls did not occur as she alleges, those contentions would need to be withdrawn or the Respondent may seek to have them struck out. She says that if the phone call on May 9 did not occur, the flow-on effect is that "it doesn't only get rid of that contention but also 3, 4 and 5 all flow from there and it would impact on those as well".}^[10]

[19]
_{Ms Mohr-Edgar seeks to establish not only that a specific phone call took place on 9 May 2018 but also to confirm that both staff members received phone calls on 8 May 2018 from HR staff. She alleges that those phone calls were about her complaint and that the phone calls took place after 10.00am for most of the day.}

[20]
_{Ms Mohr-Edgar knows Ms Dean was in her office at the time (because she heard her on the phone), it is possible that the call was made to her from a mobile phone number, and this is the basis for requiring phone records for calls received from other numbers.}

[21]
_{The Respondent states the test for non-party disclosure applications is relevance, and there is no legitimate purpose if all the party is doing is trying to get hold of documents to see whether they may assist with their case.}

[22]
_{The Respondent says that the Telstra notice is too broad to be relevant. Further, the Respondent says that the allegation is only in relation to Ms Dean receiving a phone call from Ms Hawkings-Guy and therefore incoming phone calls to Ms Hawkings-Guy are not relevant. The Respondent also says that the existence of a phone call is the only thing that can be established by the phone records, not the content of that phone call.}

[23]
_{With regard to the phone calls of 8-9 October 2018, the Respondent says that the allegation is that a phone call took place on an afternoon. Ms Hawkings-Guy was interviewed on 9 October 2018 at 8.45am (transcript of interview attached) and therefore the only relevant period of time for phone records is from 12.00pm on 8 October 2018. Further, the Respondent says that the only relevant incoming calls are from Ms}_{Hawkings-Guy to Ms Dean or vice versa. All other incoming calls have no relevance to an issue in dispute.}

[24]
_{The Respondent further submits that records of any other incoming calls may include confidential/privileged information such as the phone numbers of clients of LAQ.}

_{Consideration re: Telstra}

[25]
_{I have reviewed the relevant parts of the Ms Mohr-Edgar's statement of facts and contentions and considered the arguments put forward by both parties regarding the relevance of the phone records sought.}

[26]
_{I find Ms Mohr-Edgar's contention that the phone records enable her to complete the first step of proving her allegations persuasive. However, this is only in relation to the alleged overheard conversation where Ms Mohr-Edgar claims she was threatened to be transferred in retaliation for making a discrimination complaint.}

[27]
_{Ms Mohr-Edgar asserts that phone calls on 8 May 2018 were received by Ms Dean and says she believes these were made by Ms Davies or 'HR Staff'. Ms Mohr-Edgar she believes Ms Dean was on the phone for most of the day and says that she knows this because she was listening to her receive phone calls. The request for all incoming phone calls on that day lacks specificity and I do not find that Ms Mohr-Edgar has made out the case to receive records of all phone calls made to, or by the people in question on 8 May 2018.}

[28]
_{If Ms Mohr-Edgar wants to explore when people found out that she had lodged a complaint and how this occurred she will have the opportunity to ask them this during the hearing of the matter. The existence of a phone call Ms Mohr-Edgar does not know with any certainty occurred will not reveal what was said during the call.}

[29]
_{With regard to the first victimisation complaint and the threat to do an act, part of the proceeding will involve Ms Mohr-Edgar demonstrating that the phone call that she alleges occurred did in fact occur. The content of what was discussed in this phone call will be a matter for consideration following the evidence provided by witnesses. However, establishing whether the call subject of the complaint actually took place or not, regardless of what was discussed, will go some way to assisting the Commission regarding the alleged events.}

[30]
_{The Respondent says that it has not been able to confirm whether the phone call occurred. The production of the phone records by Telstra will enable the Respondent to undertake their own review as to whether the calls exist as alleged. This may also have the effect of narrowing the issues between the parties.}

[31]
_{Unlike the phone records sought for 8 May 2018, Ms Mohr-Edgar is very specific about the phone call she says she overheard on 9 May 2018. She is clear that it was made by Ms Hawkings-Guy to Ms Dean and that it occurred between 8.30am and 10.00am. Ms}_{Mohr-Edgar should have access to the outgoing phone records of Ms Hawkings-Guy and the incoming phone records of Ms Dean for the period of 8.30am-10.00am on 9 May 2018.}

[32]
_{The complaint that Ms Hawkings-Guy and Ms Dean colluded regarding the interview, Ms Mohr-Edgar's allegation with regard to a phone call on either 8 or 9 October goes no further than an assertion that Ms Dean had a phone call in her office at a non-specified time. Ms Mohr-Edgar goes on to discuss what she thinks was said on such a call. In the absence of specificity about the time of the phone call or any specific parts of the conversation she overheard, I would class the request for these phone records as not an endeavour to obtain evidence in support, but to discover if she has a case at all.}^[11]

[33]
_{The Non-Party Disclosure notice is upheld insofar as it relates to the phone calls made by Ms Hawkings-Guy to Ms Dean on 9 May 2018 from 8.30am to 10.00am.}

[34]
_{The rest of the notice is set aside.}

_{Barr Consulting Group – Non-Party Disclosure}

[35]
_{Ms Mohr-Edgar believed the transcripts or recordings from the external investigation conducted by Barr Group would be in the possession of LAQ given the terms of reference for the investigation}^[12]_{which states that 'interviews summaries or transcripts where prepared are required to be provided with a report, together with a copy of any recordings made'.}

[36]
_{The Respondent provided advice that LAQ did not have the recordings. Accordingly, Ms Mohr-Edgar only seeks the recordings from Barr Group Consulting.}

[37]
_{Ms Mohr-Edgar has received interview summaries but says that in circumstances where the summary is emailed to the interview participant with an opportunity for the participant to make amendments, the summary is not a transcript.}

[38]
_{Ms Mohr-Edgar argues that recordings are relevant to victimisation contentions one, three and four, which allege that there were false and or misleading statements provided to the external investigation. She submits that if they were in LAQ's possession, they should have been disclosed and that the absence of such material would materially disadvantage her in prosecuting her case at final hearing.}

[39]
_{The Respondent maintains that it has undertaken investigations and does not have the recordings of the interviews. While the Respondent acknowledges that interview participants were given an opportunity to make changes to the interview summaries, the summaries themselves show that where changes were made these were 'marked up' and that the summaries tendered by Ms Mohr-Edgar did not have 'mark ups' on them and therefore this is prima facie evidence that there is no substantial difference between the summaries and the recordings.}

[40]
_{Further to this, the Respondent raises a concern that including the recordings in the material to be considered in preparation for the hearing and the hearing itself may impact the time involved.}

_{Consideration Re: Barr Group Consulting Non-Party Disclosure}

[41]
_{The Respondent does not object on the basis that the recordings are not relevant, rather that the Applicant has been provided with a copy of the external investigation report and the written interview summaries and that there is a potential for the recordings to add to the time require to prepare for and/or hear the matter.}

[42]
_{In circumstances where, had the recordings been in the possession of LAQ, they would have been disclosed, it seems that if the only way they can be made available to Ms Mohr-Edgar is via a non-party disclosure, the Respondent's objection to such disclosure should be set aside.}

[43]
_{The Barr Group Consulting Non-Party Disclosure notice is enforced.}

_{Attendance Notice}

[44]
_{The Form 32B Attendance Notice Attachment B 'Further Amended Schedule of Documents' lists a range of categories of documents, I will address each individually.}

_{2016 Complaint Response}

[45]
_{Ms Mohr-Edgar seeks a copy of LAQ's response to Rhonda Sheehy in relation to her complaint dated 13 September 2016 and records of this complaint outcome.}

[46]
_{Ms Mohr-Edgar believes LAQ has acknowledged the relevance of Miss Sheehy's complaint to matters in dispute in their contentions because they disclosed the complaint (though not the response) in their list of documents.}

[47]
_{Referring to LAQ's complaints and compliments policy and procedures which states: "LAQ will maintain complaint and compliment management systems to ensure that all complaints and compliments data are recorded" and "Record outcome in complaints system", Ms Mohr-Edgar submits LAQ would have responded to Ms Sheehy in writing and retained records of the complaint outcome.}

[48]
_{The Respondent says that the response to Ms Sheehy in relation to her complaint has no bearing on the issues in dispute in discrimination contention one, and that LAQ has made reasonable inquiries to locate the document and it is not in the possession of LAQ.}

[49]
_{In response, Ms Mohr-Edgar asks that LAQ be required to produce an audit as evidence of its 'reasonable efforts' to locate the complaint response and the complaint outcome.}

[50]
_{The Respondent believe such an audit to be unduly onerous and time consuming, and even if document were to be provided, it does not affect the probability of whether it was a genuine operational requirement that any successful applicant had the ability to cope in the role.}

[51]
_{I have considered the submissions of the parties and reviewed the relevant part of the complaint. I do not find the outcome of the complaint made by Ms Sheehy relevant to the matter. Ms Mohr-Edgar's complaint is that she was discriminated against on the basis of a presumed or actual impairment of anxiety or characteristic of anxiety. While Ms Mohr-Edgar may be interested to see the complaint response and what was said to Ms Sheehy, I do not accept that it is a relevant document for the purposes of this matter.}

[52]
_{In any case, I accept that the complaint response in question is not in the possession of the Respondent.}

[53]
_{This item is set aside.}

_{2016 emails}

[54]
_{The schedule of documents lists three emails from 2016. An email from Ms Bell to Ms}_{Mohr-Edgar dated in or around May or June 2016 referring and responding to the Ms}_{Mohr-Edgar's email to Ms Ames enquiring about the delay in placing Ms Mohr-Edgar on the panel; copies of two emails sent to Ms Mohr-Edgar by Ms Hawkings-Guy in September 2016, and in or around September or October 2016 regarding the complaint of Ms Sheehy and the panel.}

[55]
_{Ms Mohr-Edgar believes relevance is established as the first email relates to Ms Bell's memorandum which partially justifies her decision to refuse the expression of interest. Ms Hawking-Guy's emails are relevant as they relate to the panel and the Ms Mohr-Edgar's panel status which are a substantial reason for Ms Bell's decision.}

[56]
_{Other emails relating to the Independent Children's Lawyer (ICL) file have been disclosed in the Respondent's list of documents and therefore they have acknowledged the relevance.}

[57]
_{Ms Mohr-Edgar no longer has access to these emails as there was a limit to email accounts imposed in 2017. She says that the emails are likely to still exist in the Respondent's possession and control as the Respondent undertakes back ups of email records.}

[58]
_{The Respondent says that the emails listed are not relevant to the issue of whether Ms}_{Mohr-Edgar had an impairment; was treated less favourably than other applicants for the role or if impairment was a substantial reason for not approving the appointment of Ms Mohr-Edgar to the temporary PO5 role.}

[59]
_{The Respondent submits that the emails sought do not facilitate any finding of fact as to the genuine occupational requirements for the role. The circumstances relating to Ms}_{Mohr-Edgar's past performance as an ICL panel member do not challenge whether the genuine occupational requirements of the role were as outlined at 35(c) of the response. The emails are not relevant to the issue of whether the alleged impairment was a substantial reason for Ms Mohr-Edgar's non-appointment.}

[60]
_{Ms Mohr-Edgar submits that a number of emails of a similar nature to those she seeks were disclosed on the list of documents on the Respondent's list. She also submits that she requires these documents to 'establish' the Respondent's allegations as to the reasons why they refused the EOI appointment.}

_{Consideration re: emails from 2016}

[61]
_{The ICL file and the matters surrounding Ms Mohr-Edgar's response to the circumstances which arose in relation to it are substantially dealt with in her statement of facts and contentions.}

[62]
_{A number of other emails relating to the ICL file have been disclosed by the Respondent. Ms Mohr-Edgar seeks to demonstrate that the substantial reason for her non-appointment to the acting PO5 position was her presumed impairment. In doing so, she clearly intends to rebut the Respondent's claims.}

[63]
_{I accept that the emails may be of relevance and to the extent that they}_{exist, they must be provided.}

[64]
_{In the event that they cannot be found as stated by the Respondent, correspondence detailing an unsuccessful search took place must be provided to Ms Mohr-Edgar.}

_{Documents in relation to the ADCQ/QHRC and QIRC Proceedings:}

[65]
_{At the hearing, Ms Mohr-Edgar conceded that item five could be excised from her further amended schedule of documents.}

_{OIC External Review Correspondence}

[66]
_{With regard to item six, Ms Mohr-Edgar seeks documents relating to ER 314484 of Decision Notice dated 7 February 2019 of RTI Application lodged 23 November 2018 and ER 314609 of Decision Notice dated 14 May 2019 of RTI Application lodged 23}_{April 2019.}

[67]
_{Ms Mohr-Edgar says that the Respondents have acknowledged the relevance of at least OIC external reviews 314484, 314513 and 314609. The Respondents disclosed Ms}_{Mohr-Edgar's ER requests for 314484 and 314513 but none of its own OIC ER documents. The Respondents also disclosed Ms Mohr-Edgar's RTI application that was the subject of ER 314609 but not any of its own OIC ER documents during disclosure.}

[68]
_{The documents Ms Mohr-Edgar seeks are believed to prove or disprove whether the conversation she overheard on 9 May 2018 was about a client file as asserted in the external investigation. The conversation is the act element alleged in victimisation contention five.}

[69]
_{The Respondent says that this category of documents aims to prove that the conversation on 9 May 2018 was not about the client file but about something else, namely a threat to move her. However, proving what the conversation was not about, does not prove that it was in fact in relation to what she claims it was about.}

[70]
_{The Respondent says that this Commission is not the forum for the applicant to ventilate, or seek to re-agitate, any issue she may have as to the process and outcome of the various (and numerous) external reviews she has pursued through the OIC.}

[71]
_{Further, the Respondent says that the breadth and remoteness of these requests is again indicative of a mere fishing expedition. For the same reason, the requests are also unduly onerous and oppressive.}

[72]
_{The Respondent says that it has responded at length (and at significant time and expense) to Ms Mohr-Edgar's various RTI requests and subsequent ER applications. A final outcome has been reached as to those processes after full and due consideration and LAQ is entitled to that finality.}

[73]
_{With regard to Ms Mohr-Edgar's argument that the Respondent has admitted the relevance of the documents because they disclosed Ms Mohr-Edgar's own correspondence, the Respondent says it was disclosed because it was attached to her victimisation complaint.}

_{Consideration re: OIC External Review Documents}

[74]
_{I have not found that the OIC ER documents sought by Ms Mohr-Edgar are relevant to the matter to be considered.}

[75]
_{I am not asked to determine the merits of the OIC ER or the outcomes of these reviews.}

[76]
_{Ms Mohr-Edgar refers to her knowledge that the Respondents have "at least 243 documents" in their possession and control in relation to the OIC ER. However, without any specificity as to what these documents are, I characterise the request for the documents originally sought through the RTI process and subject of the OIC reviews as a fishing expedition to discover if there is a case at all.}^[13]

[77]
_{This element of the notice is set aside.}

_{Client File/advice documents referred to in External Investigation and LAQ submissions to OIC}

[78]
_{Ms Mohr-Edgar states that the LAQ provided submissions to the OIC on or around 22 August 2019 and 19 September 2019. Those submissions referred to client advice and client file records which LAQ suggested is what the phone conversation on 9 May 2018 might have been about. She says that LAQ has those records in its possession or control because it is required to retain client files and advice records.}

[79]
_{The Respondent says that the documents are not relevant to an issue in dispute in this proceeding and that they contain documents covered by legal professional privilege. Further, the Respondent says that the key issues as to victimisation complaint one are whether there was a threat on 8 May 2018 to transfer Ms Mohr-Edgar out of the Family Law Services team and whether the alleged threat was because of Ms Mohr-Edgar's ADCQ complaint and that both are denied.}

[80]
_{Further, the Respondent says that there is no allegation that the alleged threat was even communicated to Ms Mohr-Edgar. The response itself at paragraph 51(c) does not identify a particular child protection file and LAQ is unclear if the file can be located.}

[81]
_{The Respondent says it is clear that the true purpose of Ms Mohr-Edgar's request is to attack the credit of Ms Dean and Ms Hawkings-Guy as witnesses. There will be opportunity to make submissions in that regard that at hearing, but it is not within the permissible scope of disclosure to seek the provision of documents for this purpose.}

[82]
_{I have given consideration to the material the complainant is seeking and its relevance to her complaint. Ms Mohr-Edgar believes that the conversation she overheard was in relation to a threat to move her. It seems that she seeks to inform a train of inquiry which supports her claim that untrue responses were provided by the individuals involved in the external investigation and/or the conversation she says she overheard was not in relation to a client file but in fact about a threat to move her.}

[83]
_{Ms Mohr-Edgar states that the external investigation report was referred to and quoted in her statement of facts and contentions. The external investigation report concluded:}

_{Ms Dean and Ms Hawkings-Guy both related that it was their recollection that they had spoken around that time [9 May 2018] about transferring a client between teams and that it was a 'horrendous situation' and so on, words that were used in reference to this case and which were consistent with what Ms Mohr-Edgar reported.}^[14]

[84]
_{Ms Mohr-Edgar says that as part of ER 314484 to the OIC, LAQ provided submissions to the OIC on or around 22 August 2019. She says that in this submission, LAQ acknowledged doubt about whether the alleged conversation between Ms Dean and Ms Hawkings-Guy about a purported transfer of a client file (the version of events offered by them to the external investigator) was the conversation overheard. Ms Mohr-Edgar provides the following excerpt of the submissions as contained in OIC correspondence to the applicant:}

_{Furthermore, while Ms Dean indicated that the telephone conversation in relation to this particular client could possibly have been the conversation which Ms Mohr-Edgar overheard neither she nor Ms Hawkings-Guy stated that it definitely was the purported conversation.}

_{LAQ has undertaken further searches in regard to this client and these searches show legal advice on domestic violence issues was provided to the client by a LAQ lawyer (not Ms Hawkings-Guy) on 6 March 2018 and then by Ms Hawkings-Guy on 2 July 2018 and advice was provided to the client on child protection issues by Ms Dean on 4 July 2018. Accordingly it is not clear whether or not the conversation between Ms Dean and Ms}_{Hawkings-Guy about this client is the conversation which Ms Mohr-Edgar overheard.}^[15]

[85]
_{Ms Mohr-Edgar points out that the July dates mentioned above are two months after the 9 May 2018 phone call. She says that the client file/client advice document sought will be highly relevant to whether the explanation offered by Ms Dean and Ms Hawkings-Guy for the 9 May 2018 phone conversation is plausible or not and consequentially, whether the Commission accepts that the 'acts' alleged for victimisation contention four and one have been proven.}

[86]
_{I accept that the requested client file/client advice for the client Ms Dean and Ms}_{Hawkings-Guy recalled discussing is specific enough in nature and relevance to the Ms Mohr-Edgar's statement of facts and contentions. It is not remote or too broad a category of documents.}

[87]
_{Efforts should be made to identify the client file that Ms Dean and Ms Hawkings-Guy referred to in their interview with the external investigator and the client file/client advice up to and including 9 May 2018 should be provided to Ms Mohr-Edgar. Action taken on the file post the 9 May 2018 conversation is not relevant as it cannot have been the subject of the conversation Ms Mohr-Edgar says she overheard.}

[88]
_{While I note the Respondent's submission that the file is sought to attack the credibility of the two individuals involved, on balance I am inclined to consider it to be material that goes to either advancing the appellant's case or damaging the case of her opponent.}

[89]
_{I note the Respondent's concerns about the privacy of the client and therefore all documents must be redacted as necessary to ensure that identifying details are removed. To the extent that any other information in the documents is of a nature which may identify the client, this should be redacted.}

_{Communication between the Governance Team and the PCC Team about the applicant's RTI and IP access applications and the External Reviews to the OIC}

[90]
_{I find that the Ms Mohr-Edgar has made out the relevance of these documents to victimisation complaint five.}

[91]
_{Ms Mohr-Edgar's contention is that following her complaint, she has been victimised by way of the LAQ's RTI Officer not acting appropriately in relation to her RTI application.}

[92]
_{Ms Mohr-Edgar says that there is no reason for the RTI Officer to be sharing information about her matter with the PCC area. The email chain at attachment nine to Ms Mohr-Edgar's submissions filed 27 May 2020 demonstrates that the RTI Officer was in contact with the PCC regarding the Ms Mohr-Edgar's RTI requests and she says that these actions have caused her detriment.}

[93]
_{Ms Mohr-Edgar should have access to internal LAQ emails regarding her RTI requests and the external reviews to the OIC up until 14 May 2019 when she says the victimisation occurred.}

[94]
_{The relevant communication is to be disclosed to Ms Mohr-Edgar. Where information is confidential as it relates to clients of LAQ, this is to be redacted as necessary and the document will be suppressed if filed.}

_{External Investigation Recordings of Interviews}

[95]
_{This matter has been excised and is addressed via the Non-Party Disclosure regarding the Barr Group.}

_{Ms Camden's work mobile number}

[96]
_{As per the discussion above regarding the notice of non-party disclosure directed to Telstra, I have not found the request for possible phone calls made on 8 May 2018 by or to unnamed staff to Ms Camden to have sufficient specificity to order the release of these records.}

_{Information relevant to Past-Economic Loss}

[97]
_{Ms Mohr-Edgar says that the information she has requested is necessary to determining her past economic loss in the event that it is required. She says that this would require no more than a few documents being produced.}

[98]
_{To the extent that such information is available and exists, it must be provided to Ms}_{Mohr-Edgar. If no such information is available, Ms Mohr-Edgar should be provided with correspondence to this effect.}

Footnotes

[1] [2016] QIRC 75 ('Weston').

[2] Weston (n 4) (citations omitted).

[3] Kelsey No. 6 [15].

[4] Kelsey No. 6 [53] - [54].

[5] [2014] ICQ 10.

[6] [2014] ICQ 10 [14].

[7] [2009] NSWCA 306.

[8] [2009] NSWCA 306 [74].

[9] T2-13, ll 38-45.

[10] T2-15, ll 33-35.

[11] Weston No.4.

[12] Exhibit 1.

[13] Weston No.4.

[14] Submissions filed by Ms Mohr-Edgar 27 May 2020 [43].

[15] Submissions filed by Ms Mohr-Edgar 27 May 2020 [44].

Editorial Notes

Published Case Name:
Mohr-Edgar v State of Queensland (Legal Aid Queensland) & Ors (No. 2)
Shortened Case Name:
Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2)
MNC:
[2020] QIRC 185
Court:
QIRC
Judge(s):
Member Pidgeon IC
Date:
27 Oct 2020

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co	(1882) 11 QB.D 55	2 citations Jump To Cite 1 - (1882) 11 QB.D 55 Cite 2 - (1882) 11 QB.D 55
DP World Brisbane Pty Ltd v Rogers & Anor	[2014] ICQ 10	3 citations Jump To Cite 1 - [2014] ICQ 10 Cite 2 - [2014] ICQ 10 Cite 3 - [2014] ICQ 10
Kelsey v Logan City Council & Ors (No.6)	[2018] QIRC 115	4 citations Jump To Cite 1 - [2018] QIRC 115 Cite 2 - [2018] QIRC 115 Cite 3 - [2018] QIRC 115 Cite 4 - [2018] QIRC 115
Police v Hughes	View on:JADE[2009] NSWCA 306	3 citations Jump To Cite 1 - [2009] NSWCA 306 Cite 2 - [2009] NSWCA 306 Cite 3 - [2009] NSWCA 306
Regina v Saleam	View on:JADE(1999) NSWCCA 86	1 citation Jump To Cite 1 - (1999) NSWCCA 86
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4)	[2016] QIRC 75	2 citations Jump To Cite 1 - [2016] QIRC 75 Cite 2 - [2016] QIRC 75

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Mohr-Edgar v Legal Aid Queensland	[2021] ICQ 2	2 citations
Mohr-Edgar v Legal Aid Queensland	[2023] ICQ 25	4 citations

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Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2)[2020] QIRC 185