Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Bond v State of Queensland (No. 2)[2020] QIRC 78

Bond v State of Queensland (No. 2)[2020] QIRC 78

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bond v State of Queensland & Ors (No. 2) [2020] QIRC 078

PARTIES:

Bond, Robyn

(Complainant/Applicant)

v

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

(First Respondent)

Thomas, Christine

(Second Respondent)

Harvey, Sean

(Third Respondent)

McDermott, Kerrith

(Fourth Respondent)

CASE NO:

AD/2019/27

PROCEEDING:

Applications in proceedings

DELIVERED ON:

29 May 2020

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDERS:

  1.   The Complainant's application dated 11 May 2020 to amend her Statement of Facts and Contentions is allowed;
  1.   The document identified by the parties as 'document number 186' (the email chain) be disclosed in an unredacted form to the Complainant;
  1.   The Complainant's application for unredacted disclosure of the documents identified by the parties as 'documents number 146 and 147' ('the report') is refused.

CATCHWORDS:

INDUSTRIAL LAW – DISCRIMINATION – VICTIMISATION – INTERLOCUTORY APPLICATIONS – application to amend statement of facts and contentions – application made late in proceedings – application for disclosure – duty of disclosure – legal professional privilege – dominant purpose – relevance of undisclosed material to proceedings

LEGISLATION:

Anti-Discrimination Act 1991, s 178

Industrial Relations Act 2016, s 536, s 539

Industrial Relations (Tribunals) Rules 2011, r 22, r 41

CASES:

Aon Risk Services Australia Limited v Australian National University [2009] CLR 175

AWB v Cole (2006) 152 FCR 382

Bond v State of Queensland & Anor [2019] QCATA 60

Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

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

M v Dental Board of Queensland, Dental Board of Australia [2013] QCAT 554

Mitsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] 4 VR 332

Robyn Bond v State of Queensland (Department of Justice and Attorney-General) & Ors [2020] QIRC 063

Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, 10 February 1997)

UBS AG v Tyne [2018] HCA 45

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No.4) [2016] QIRC 075

Reasons for Decision

The applications

Application for disclosure

  1. [1]
    On or about 12 February 2020, pursuant to a direction from the Commission, the parties undertook the formal disclosure process with an exchange of documents. Some of the documents disclosed by the respondents had portions redacted.
  1. [2]
    On 2 March 2020 Ms Bond filed an application in proceedings ('the application') seeking unredacted disclosure of two nominated documents that contained redacted portions.
  1. [3]
    The first document is an email chain extending from 30 November to 1 December 2016 initiated by Mr Lee Fairbank and including the Third and Fourth respondents. It is identified as between the parties as document number 186 ('the email chain').
  1. [4]
    Portions of the emails within the chain have been redacted by the respondent on the basis that they are said to contain legal advice. In respect of the email chain, the respondents resist full disclosure on the basis of legal professional privilege ('LPP').[1]
  1. [5]
    The second document is in fact two related documents: a covering memorandum and an accompanying investigation report authored by Mr Neil Lawson, Acting Executive Director of the Ethical Standards Unit dated 10 July 2015, identified as between the parties as documents 146 and 147 ('the report').
  1. [6]
    The report was prepared in response to the public interest disclosure allegations made by Ms Bond's husband Mr Kirk Bond on 27 May 2014 about the Second respondent and sets out relevant antecedent information about the particulars of the allegations and the investigation findings with respect to those allegations.
  1. [7]
    Allegation number one is to the effect that the Second respondent bullied and harassed Mr Bond. Allegation one is accompanied by eighteen 'examples' of the alleged bullying and harassment. Many of these examples extend to conduct directed at both Mr Bond and Ms Bond, and each 'example' amounts to, of itself, an allegation.
  1. [8]
    The remaining eleven allegations made by Mr Bond on 27 May 2014 are, with one exception, allegations that do not involve Ms Bond directly or at all. The exception is discussed below.
  1. [9]
    In relation to the report, the respondents have redacted the report content insofar as it pertains to allegations two to twelve. The respondents submit that the portions redacted pertain to factual matters that are not relevant to the proceedings and which also contain personal information about the Second respondent which is neither relevant nor appropriate for disclosure[2].
  1. [10]
    In the course of considering this application I directed the respondents to provide me with a copy of unredacted versions of the email chain and the report for the purposes of properly evaluating their submissions. For completeness I note that the unredacted copies were obtained solely for that purpose and have not been admitted into evidence in this application or in the substantive matter.
  1. [11]
    The parties filed written submissions in respect of the disclosure application.

Application to amend Statement of Facts and Contentions

  1. [12]
    During the process of my deliberations on the disclosure application, on 11 May 2020, Ms Bond filed an application to amend her Statement of Facts and Contentions ('SOFC'). 
  1. [13]
    For reasons set out below, an important consideration for the exercise of my discretion with respect to the disclosure application pertaining to the report is the relevance of the redacted material to the proceedings. In circumstances where an amendment to the claims made in the SOFC was now being sought, it became necessary to first resolve the application for amendment notwithstanding it arose subsequent to the disclosure application.
  1. [14]
    The parties filed written submissions in respect of application to amend. For convenience I intend to deal with both applications in this decision.

The application to amend the SOFC

Power to give leave to amend

  1. [15]
    Pursuant to a Directions Order issued on 9 October 2019 Ms Bond filed her SOFC on 11 October 2019. A directions order such as this is issued pursuant to the powers granted by r 41 of the Industrial Relations (Tribunals) Rule 2011 ('the Rules').
  1. [16]
    In respect of the statutory regime governing amendment, the respondents have referred in submissions to r 18 to 23 of the Rules and to s 178 of the Anti-Discrimination Act 1991 ('the AD Act'). The respondent's submissions and the authorities relied on largely address the principles relevant to an application to amend an application, complaint and more broadly, pleadings in civil proceedings regulated by rules of procedure.
  1. [17]
    As Ms Bond correctly points out, the SOFC is neither an 'application' or a 'complaint' within the meaning of the AD Act, the Industrial Relations Act 2016 ('the IR Act') or the Rules.[3]
  1. [18]
    While it is a document that forms part of the broader proceedings, a SOFC is the product of a direction issued pursuant to r 41. Rule 41 contains a broad and non-exhaustive list of examples of orders that may be made in the conduct of proceedings. An order requiring amendment to a SOFC, or granting leave to amend on application, is within the contemplation of those powers in my view. Further, I consider s 539(d) of the IR Act provides an alternative source of the Commission's powers in this regard.
  1. [19]
    Notwithstanding this conclusion, I consider that an important function of a SOFC is to allow parties to properly set out and particularise their complaint, and to allow them to understand the case of other parties to the proceedings. While not formally recognised as such, I consider that SOFCs have a function akin to pleadings. 
  1. [20]
    For this reason, the authorities that deal with late amendments to pleadings that have been referred to by the respondents provide useful guidance to the considerations that should inform my discretion.

Grounds of objection to proposed amendment

  1. [21]
    In written submissions dated 19 May 2020 the respondents outline the basis for their opposition to the majority of the proposed amendments.[4] The objections of the respondents are summarised at paragraph 12 of their written submissions as follows:
  1.   The long history of this matter, including previous applications by Ms Bond to amend her complaints;
  1.   The lateness of the current application; and
  1.   The absence of any evidence to support the serious allegations that Ms Bond now wishes to make for the first time against the State and against the Fourth respondent, Kerrith McDermott.

          Explanation of Ms Bond for the need to amend, and for timing and delay of application

  1. [22]
    In written submissions dated 26 May 2020, Ms Bond responded to the objections of the respondent and offered an explanation for the timing and reason for the proposed amendments. In essence, having regard to comments that I had made about the SOFC in a previous interlocutory decision[5] Ms Bond seeks to ensure her complaint is more clearly understood.
  1. [23]
    The delay in making the application was further explained by reference to a preoccupation by Mr Bond, Ms Bond's representative, with other proceedings he is involved in.[6]

Consideration

  1. [24]
    For reasons stated above, in considering this application I have had regard to authorities referred to by the parties that deal with the question of the discretion to allow amendments to pleadings particularly in circumstances where proceedings were well advanced.[7] While these authorities deal with the exercise of the discretion in different jurisdictions, and in relation to pleadings in accordance with rules of civil procedure, the observations are apposite.
  1. [25]
    A just resolution to the proceedings remains the paramount consideration.[8] However, the 'just resolution' of a dispute takes into account wider public interest than those of the parties.[9] There is potential for loss of public confidence in the legal system where a court is seen to accede to applications made without adequate explanation or justification.[10]
  1. [26]
    Having regard to the matters raised by the respondent I am not without sympathy for their position. Ms Bond's husband and representative has previously alluded to multiple actions against these and other respondents in other proceedings. This matter itself has a long and protracted history, and there have been previous amendments allowed before this complaint was referred to the Commission, and after. The final hearing is scheduled to begin just over one week on 8 June 2020.
  1. [27]
    I am conscious that the proposed amendments make more pointed claims with respect to the First, Third and Fourth respondents, though I am not convinced that, given the long and protracted history between these parties, that such amendments would take the respondents entirely by surprise.
  1. [28]
    Having regard to the proposed amendments, they largely refer to written communications that passed between the parties and events that have already been identified as significant in this matter. I have no doubt the respondent will have already turned their minds to those documents and events in their preparation for hearing.
  1. [29]
    Further, on my reading of them, the amendments make no substantial change to the pleaded case but rather, provide better particulars. There does not appear to be any change that would require the respondents to expand their witness list, though if that were the case, I would expect there is sufficient time to accommodate that.
  1. [30]
    Ms Bond is represented by her husband who acknowledges that despite his legal qualifications he is inexperienced and unfamiliar with the rules with respect to pleadings.[11] While I do not entirely accept that submission, from what I have observed to date, Mr Bond's representation is not comparable with what might be expected from genuine legal representation. That is not intended as a criticism or said disrespectfully, but rather an important observation for the purposes of my consideration of this application. I consider that Ms Bond's lack of legal representation, in the true sense, goes some way to explaining the timing of the application to amend and the history of this matter more generally.
  1. [31]
    While not strictly applicable, I am conscious of the approach taken in other jurisdictions to applications for proposed amendments pursuant to s 178 of the AD Act.[12] The scope to allow amendments under that provision is unfettered and extends to amendments that include new complaints.  It would seem harsh and incongruous if a complaint may be amended to that extent pursuant to s 178 in other jurisdictions, without applying the same standard to proposed amendments to a SOFC in the Commission.  
  1. [32]
    Ms Bond has been pursuing this complaint since February 2018. Her claim deals with grievances dating back many more years before that. This matter has journeyed a long way, through the exhausting terrain of two jurisdictions, and all the arduous steps required to convey a complaint such as this to a hearing. A just resolution demands that Ms Bond be allowed to put what she considers to be her best case before the Commission, even if the full details of that case emerge at the 'eleventh hour'.
  1. [33]
    While granting this application in that context will understandably be prejudicial for the respondent, that alone is not sufficient reason for me to refuse the application. The obvious prejudices to the respondents can be alleviated in my view, and I address these below. The prejudice to a complainant being refused the opportunity to present their full case is impossible to remedy.
  1. [34]
    In the circumstances I intend to grant leave for Ms Bond to amend her application. I hasten to add that, given the history of this matter, I cannot foresee a circumstance where I would be inclined to grant this indulgence again in this matter.
  1. [35]
    I am conscious that amendments at this late stage will almost certainly cause prejudice to the respondents. For example, the amendments will need to be countered by amendments to the respondents SOFC. The amendments may give rise to a need for additional steps in preparation and, significantly, they may result in the respondents incurring additional costs.
  1. [36]
    The respondent may also (or alternatively) require an indulgence with respect to further time for preparation, including an adjournment for some period of the time currently allocated for hearing.
  1. [37]
    I anticipate, subject to hearing from the parties, that I would be favourably disposed to any requests from the respondents I considered necessary to alleviate a demonstrated prejudice they have suffered that arises from the amendments at this very late stage in proceedings.
  1. [38]
    Ms Bond should be conscious that the favourable exercise of my discretion does not arise 'as of right'. Ms Bond has sought an indulgence which a just resolution demands that I allow, but not at the expense of the respondent's mutual right to a just outcome. 
  1. [39]
    I propose to list this matter for mention prior to the commencement of the hearing on 8 June 2020 to hear from the parties on these issues.

The application for disclosure of unredacted documents

Obligations for disclosure under the Rules

  1. [40]
    Though not expressly stated in the application or supporting material, it must be presumed that Ms Bond seeks orders for disclosure pursuant to r 41(2)(o) of the Rules. Rule 41(2)(o) gives a discretionary power to the Commission to make a directions order that relates to the disclosure of documents.
  1. [41]
    Further, the submissions of Ms Bond speak to the inadequacy of the respondent's compliance with their obligation arising under r 46 of the Rules. Rule 46 provides:

46 Duty of disclosure

  1. (1)
    If a directions order requiring disclosure of documents is made, a party must disclose any document that—
  1. (a)
    is relevant to the proceeding or a matter in issue in the proceeding; and
  2. (b) is in, or comes into, the possession of the party.
  1. (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.
  1. (3)
    Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
  1. [42]
    In Kelsey v Logan City Council & Ors (No.6)[13] His Honour Deputy President O'Connor (as he then was) distinguished the disclosure obligations in the Commission from those regulated by the Uniform Civil Procedure Rules ('UCPR'). While the obligation under the UCPR is to disclose documents that are directly relevant, the obligation is wider under r 46 of the Rules.[14]
  1. [43]
    His Honour then went on[15] to refer to the broad collection of principles relevant to the duty of disclosure that were set out by Commissioner Fisher in Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No.4)[16] where she observed:

[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.

   (Underlining added) (Citations removed).

  1. [44]
    It is against this backdrop that I must consider Ms Bond's application.

The email chain

  1. [45]
    The respondent opposes the application with respect to this document and relies on the principles of LPP and (presumably) r 46(3). More specifically, it seems the respondents rely on 'advice privilege', a category of LPP.
  1. [46]
    In order to establish such privilege, the party asserting it must establish:
  1. The purpose for which the document was created, or the communication contained in it was to provide or receive legal advice:[17]
  2. The receipt or provision of the communication was for the dominant purpose of legal advice;[18]
  3. The communication in question is between the client and their lawyer; and
  4. The communication was and remains confidential.
  1. [47]
    Ms Bond asserts that none of these criteria are met because:
  • The email chain is between non-lawyer public servants;
  • The dominant purpose of the emails was to recruit the Fourth respondent to initiate a disciplinary process against Ms Bond;
  • The communication was disseminated broadly and thus, not confidential.
  1. [48]
    Having had regard to the unredacted email chain I am not satisfied that it is a communication of legal advice between a client and their lawyer. Notwithstanding that the language used in the email chain purports to communicate 'the advice' given by Crown Law, I consider the full contents of the email chain go no further than to communicate the effect of the advice rather than disclose the details of the advice itself. Given this characterisation of the emails, LPP cannot apply to them.
  1. [49]
    It follows of course that whatever advice may have prompted the email chain, in whatever form, will continue to be protected by LPP.
  1. [50]
    Alternatively, if my characterisation of the emails above is incorrect, and they do contain legal advice, I am not satisfied that the dominant purpose of the communication was the provision of legal advice.
  1. [51]
    In Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission[19] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communication between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

(Emphasis and underlining added).

  1. [52]
    In Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority[20] Batt JA considered the term 'dominant':

In its ordinary meaning "dominant" indicates that purpose which was the ruling, prevailing, or most influential purpose. Barwick CJ, whose view in Grant Downs propounding the test of dominant purpose has now been adopted by the majority decision in Esso Australia Resources, distinguished "dominant" from "primary" and "substantial". Lord Edmund-Davies in Waugh, in adopting the test propounded by Barwick CJ, was of the view that the element of clear paramountcy should be the touchstone. That, as it seems to me, shows the meaning of dominant. 

 (Emphasis added) (Citations removed).

  1. [53]
    In my view, while the portions redacted from the email chain paraphrase the advice that has been given, they are references to the advice merely for the purpose of context. The dominant purpose of the communication is something far more administrative in nature i.e. securing the engagement of an independent officer to conduct a disciplinary process.
  1. [54]
    For this reason, I do not consider that LPP attaches to the email chain and I propose to order it to be disclosed to Ms Bond in its unredacted form.
  1. [55]
    For completeness I add that I reject the submissions of Ms Bond with respect to the nature of the communication being between non-lawyer public servants. It is not controversial that LPP can, subject to the dominant purpose test, extend to communications that are a dissemination of legal advice amongst relevant personnel within the employ of a 'client'.[21] I note further that at least one of the lawyers credited with providing the advice that prompted the email chain referred to in the emails is included in the final part of the chain.
  1. [56]
    Further, I reject the submission that the communication was disseminated broadly. On my reading of the authors and recipients of each email in the chain, there was no person included who was not materially connected with the purpose of the email i.e. the engagement of an officer independent of the IME process to conduct a disciplinary process.
  1. [57]
    In all of the circumstances I propose to order disclosure of the email chain in unredacted form. 

          The report

  1. [58]
    The report is authored by Mr Neil Lawson, Acting Executive Director the Ethical Standards Unit (ESU). It was prepared following Mr Lawson's investigation into complaints made by Mr Bond against the Second respondent on 27 May 2014.
  1. [59]
    The complaints that were investigated relate to events that date back to at least 2011. There are twelve complaints in total, the majority of which allege varying forms of misconduct by the Second respondent in the performance of her duties as the manager of Ms Bond and her husband.
  1. [60]
    The first of the twelve allegations is that the Second respondent bullied and discriminated against Mr Bond. There were eighteen relatively detailed examples of the alleged bullying said to support the first allegation, each of which was the subject of specific and comprehensive attention in the investigation, and each of which was individually addressed by the report.
  1. [61]
    The redacted version of the report includes a detailed summary of the facts established and the conclusion reached by the investigator in respect of each allegation of bullying contained within the first allegation. Further, the redacted version of the report also includes the conclusion reached by the investigator i.e. that with one exception, the allegations of bullying were not substantiated. The redacted version also includes a conclusion by the investigator that, in relation to the substantiated allegation, the Second respondent ought to be counselled.
  1. [62]
    The disclosed portions of the report are said to be relevant because some many of the examples accompanying the first allegation relate to conduct of the Second respondent towards both Mr and Ms Bond, and that alleged conduct overlaps with aspects of Ms Bonds complaint in this matter. In those circumstances, the relevance and hence the need for disclosure is obvious.
  1. [63]
    The redactions to the report commence with the investigation outcomes in respect of allegations two through to twelve. It is noted that, with one exception, none of these allegations involve Ms Bond in any obvious way, or at all. The exception is an allegation where it is said that Ms Bond accompanied the Second respondent to an appointment with her lawyer during work hours. The basis of that allegation is what is commonly described as 'time sheet fraud' i.e. an entry on a time sheet indicating that a worker was performing work when in fact they were not. Ms Bond's involvement, according to the complaint, would seem to be as a material witness to the allegation, but it does not allege adverse conduct as between Ms Bond and the Second respondent.
  1. [64]
    The respondents oppose disclosure of the unredacted copy of the report on the basis that the findings on allegations two through to twelve are not relevant to these proceedings and further, that they contain personal and sensitive information pertaining to the Second respondent that is unrelated to the proceedings.
  1. [65]
    I am conscious of the comments of the Vice President in Kelsey[22] and that the duty to disclose under r 46 of the rules applies to documents both directly and indirectly relevant to the proceedings. In my view this compels a broad approach by parties to disclosure.
  1. [66]
    I note the approach taken by MacKenzie J in Menkens v Wintour[23] and the adoption of the principle that where a document contains discoverable material, generally the whole of the document ought to be disclosed. I note further His Honours adoption of the considerations outlined by McLelland CJ:[24]
  1. (a)
    Whether the part of a document sought to be excluded from production contains material which contributes to the document's satisfying any of the criteria of the description which renders it discoverable;
  1. (b)
    Whether the exclusion of that part will, or is likely to, detract from a proper understanding of the meaning and significance of those parts of the document which do contribute to the satisfying of any of those criteria; and
  1. (c)
    Whether it is apparent that there are, or may be, substantial privacy or confidentiality interests which ought to be given protection.
  1. [67]
    In my view the broader obligations of disclosure under r 46 identified in Kelsey can still be met in circumstances that would not compel the production of an entire document. The relevance to proceedings of the contested content will always be an appropriate consideration to the exercise of the discretion.
  1. [68]
    The questions for the Commission are, having regard to the broad obligations identified in Kelsey and the observations of McClelland CJ cited above:
  1. Are the redacted portions of the report relevant to Ms Bond's proceedings?
  2. Does their redaction detract from the proper understanding of the report?
  3. Are there substantial privacy or confidentiality considerations?
  1. [69]
    To address this question, regard must be had to Ms Bond's SOFC filed 11 October 2019, along with those amendments identified in her application of 11 May 2020 and which I intend to allow. While other material is also an appropriate resource to identify the particulars of Ms Bond's claim,[25] the SOFC provides the most comprehensive particulars of the claims made by Ms Bond for the purposes of identify the relevance or otherwise of the redacted content. 
  1. [70]
    I have previously observed that the SOFC filed by Ms Bond in this matter is complex and multi-layered.[26] The amended version is no less so. The complexity of the drafting often makes distilling the precise nature of Ms Bonds complaints a difficult task.  Helpfully, Ms Bond's written submissions provides a summary of the relevant portions of the SOFC on this issue.[27]
  1. [71]
    A prominent focus of Ms Bond's submissions is the alleged bias of the Third respondent. Ms Bond submits that she will be assisted in proving that bias by access to the redacted content of the report. Having regard to the redacted content, I cannot identify how it aids in supporting arguments that the Third respondent was biased against Ms Bond. There are no submissions from Ms Bond that purport to explain the connection between conclusions of the investigator about the Second respondent (on matters not involving Ms Bond) and the allegation of bias against the Third respondent.
  1. [72]
    Moreover, it is clear that the submissions of Ms Bond are premised in a fundamental misunderstanding.
  1. [73]
    In paragraphs 13 and 15 of Ms Bond's submissions filed 2 March 2020 she repeatedly refers to the Third respondent as having 'concluded' that the allegations against the Second respondent could not be substantiated. The Third respondent made no such findings. Mr Lawson did. The Third respondent merely acted on the independent findings of Mr Lawson.
  1. [74]
    In the circumstances I cannot appreciate how the redacted content of the report assists Ms Bond in proving her allegations of bias against the Third respondent. Further, I cannot see how any of that redacted content might be utilised by Ms Bond for any aspect of her complaint.   
  1. [75]
    There are further submissions relating to allegations about the respondents disclosing the "fact" that Ms Bond made a public interest disclosure. Whether Ms Bond made a public interest disclosure relevant to the report is contested.
  1. [76]
    It is clear from page one of the report that it is a product of complaints made by Mr Bond. It is further evident from the report that Mr Bond was granted Public Interest Discloser ('PID') status.
  1. [77]
    While Ms Bond purports to have somehow acquired PID status as a consequence of an email sent by Mr Bond on 24 October 2014,[28] it is certainly the case that she does not to hold that status according to Mr Lawson at the time of writing his report.[29] The report plainly identifies Mr Bond (and only Mr Bond) as the PID.
  1. [78]
    Exhibit C to the submissions filed by Ms Bond on 2 March 2020 is correspondence dated 12 October 2015 setting out, in summary form, the findings and conclusions of the investigation by Mr Lawson. The letter is addressed to both Mr and Ms Bond however, the opening paragraph confirms the complaints originated with Mr Bond. The second sentence, somewhat ambiguously, says "You were assessed by the CMC to be a Public Interest Discloser…". I note in the full context of the first paragraph it appears to be addressing Mr Bond only.
  1. [79]
    There is no other evidence currently before me to support a conclusion that Ms Bond had PID status with respect to the report.  It is unclear how it is that Ms Bond comes to the conclusion that she was a PID as asserted in her SOFC. Perhaps it was her reading of the correspondence that is Exhibit C to her submissions, though that is not stated anywhere in the material before me.  I do not intend to reach conclusions on the basis of speculation.
  1. [80]
    Further, Ms Bond's submissions make no mention of any reply received to Mr Bond's email of 24 October 2014, nor is there any other clear evidence presented to me that unequivocally establishes her PID status.
  1. [81]
    While it might ultimately be a matter addressed by the parties at hearing, I am not able to conclude on the material before me, and for the current purposes of this application, that Ms Bond was a PID in respect of the matters giving rise to the report, or at all.  
  1. [82]
    For the purposes of establishing relevance of the redacted content, Ms Bond's summary of the victimisation complaint set out at paragraph 8 of her submissions filed 2 March 2020 is premised in two key propositions:
  1. That the Third respondent was the person responsible for concluding the complaints against the Second respondent were unsubstantiated; and
  2. Ms Bond was a PID.

          Both of these propositions, on the current evidence, would appear to be incorrect.

  1. [83]
    In any event, I cannot appreciate how assertions of bias or improper disclosure of PID details are directly or even indirectly assisted by disclosure of the details relating to complaints made by Mr Bond against the Second respondent and the investigation findings.
  1. [84]
    Further, it is a matter of public record that Mr Bond has himself engaged in protracted litigation against or involving the Second respondent. Some of that litigation is ongoing. I cannot discount the risk that a release of this sensitive information to Ms Bond might produce an unintended or unfair result if that information was subsequently, even innocently, accessed and used by Mr Bond in his litigation in circumstances where it had not been legitimately disclosed to him.    
  1. [85]
    In all of the circumstances of this application, I am not satisfied that the redacted content has any relevance, direct or indirect, to the proceedings.  Having regard to the observations of McClelland CJ referred to above, I am content that the redactions do not impede an understanding of the report and nor do they prevent it from being fully utilised to the extent that its content is relevant.
  1. [86]
    Further, I consider that there to be substantial privacy considerations attached to the redacted content, and the potential for prejudicial impact to the Second respondent where such sensitive personal information is released is significant. 
  1. [87]
    In the circumstances I refuse the application for disclosure of the report in unredacted form.  

Orders

  1. [88]
    I make the following orders:
  1. The Complainant's application filed 11 May 2020 for leave to amend her Statement of Facts and Contentions is allowed;
  1. The document identified by the parties as 'document number 186' (the email chain) be disclosed in an unredacted form to the Complainant;
  1. The Complainant's application for unredacted disclosure of the documents identified by the parties as 'documents number 146 and 147' ('the report') is refused.

Footnotes

[1] Respondent's submissions dated 3 April 2020 at paragraph 11.

[2] Respondent's submissions dated 3 April 2020 at paragraph 22.

[3] See Chapter 7 of the AD Act, r 4 of the Rules.

[4] There is partial consent to the proposed amendment in respect of part of the proposed amendment to paragraph 65 of the SOFC.

[5] Robyn Bond v State of Queensland (Department of Justice and Attorney-General) & Ors [2020] QIRC 063.

[6]  Ms Bonds submissions filed 26 May 2020 at paragraph 3(f).

[7] Aon Risk Services Australia Limited v Australian National University [2009] CLR 175 at 213; UBS AG v Tyne [2018] HCA 45; M v Dental Board of Queensland, Dental Board of Australia [2013] QCAT 554.

[8] Aon Risk Services Australia Limited v Australian National University [2009] CLR 175 at 213.

[9] UBS AG v Tyne [2018] HCA 45.

[10] Aon Risk Services Australia Limited v Australian National University [2009] CLR 175 per French CJ at [30].

[11] Ms Bond's submissions filed 26 May 2020 at paragraph 3.

[12] Bond v State of Queensland & Anor [2019] QCATA 60 at [58]-[65] and the various authorities cited therein.

[13] [2018] QIRC 115.

[14] Ibid at [14]-[15].

[15] Ibid at [16].

[16] [2016] QIRC 075.

[17] AWB v Cole (2006) 152 FCR 382 at 406-410. 

[18] Mitsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] 4 VR 332 at 336-337.

[19] (2002) 213 CLR 543 at 552.

[20] [2002] VSCA 59 at 336-7.

[21] AWB v Cole (2006) 152 FCR 382 at 411.

[22] Ibid.

[23] [2006] QSC 342 at [12]-[13].

[24] Ibid at [12]; See also Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, 10 February 1997).

[25] For example, the referral material from the Queensland Human Rights Commission (formerly QCAT).

[26] Robyn Bond v State of Queensland (Department of Justice and Attorney-General) & Ors [2020] QIRC 063 at [25].

[27] Ms Bond's submissions filed 2 March 2020 at paragraph 8.

[28] Complainant's SOFC at paragraph 28.

[29] Page 1 of the (unredacted) report of Neil Lawson.

Close

Editorial Notes

  • Published Case Name:

    Bond v State of Queensland & Ors (No. 2)

  • Shortened Case Name:

    Bond v State of Queensland (No. 2)

  • MNC:

    [2020] QIRC 78

  • Court:

    QIRC

  • Judge(s):

    Industrial Commissioner Dwyer

  • Date:

    29 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.