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Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt[2021] QIRC 307

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt[2021] QIRC 307

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307

PARTIES:

Ryle, Linda

(Complainant)

v

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

(First Respondent)

and

Pitt, Stephen

(Second Respondent)

CASE NO:

AD/2019/69

PROCEEDING:

Anti-discrimination complaint

DELIVERED ON:

7 September 2021

HEARING DATE:

19 May 2020

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDERS:

  1. The application for suppression filed on 16 June 2020 by the Complainant is refused;
  1. The application to dismiss proceedings filed on 23 August 2019 by the First Respondent is granted;
  1. Matter number AD/2019/69 is dismissed; and
  1. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), I direct that the contents of the file held in the QIRC registry for matter number AD/2019/69 be withheld from release or search. 

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – complaint of reprisal brought out of time – complaint accepted by the Anti-Discrimination Commission Queensland out of time – calculation of length of delay – reason for delay – application to strike out proceeding pursuant to section 175 of the Anti-Discrimination Act 1991 (Qld) – circumstances insufficient to establish balance of fairness favours hearing the complaint out of time – application for suppression of Complainant's name – principle of open justice – application refused

INDUSTRIAL LAW – QUEENSLAND – admissibility of correspondence in affidavit filed by Respondent – Complainant objects to admissibility of correspondence – claim of legal professional privilege – correspondence not admitted

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 138, 166, 174B, 175, 191

Human Rights Act 2019 (Qld) ss 9, 25

Industrial Relations Act 2016 (Qld) ss 9, 429, 447, 451, 454, 580, sch 1, sch 5

Limitation of Action Act 1974 (Qld) ss 31, 32

Public Interest Disclosure Act 2010 (Qld) ss 13, 40, 44

Youth Justice Act 1992 (Qld) s 301, sch 4

CASES:

Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Pagura-Inglis v Minister for Education [2003] QADT 18

Paxton v Children’s Health Queensland Hospital and Health Service (No 2) [2020] QIRC 023

Re: Ipswich City Council [2020] QIRC 194

Ryle v Venables & Ors [2021] QSC 60

Wong v Medical Board of Queensland [2006] QADT 41

APPEARANCES:

Mr J Tracey of Counsel for the complainant

Mr A D Scott of Counsel for the first and second respondents

Reasons for Decision

History of the complaint

  1. [1]
    In 2011, Ms Ryle was employed by the first respondent in the position of Murri Court Case Coordinator. The second respondent, Mr Stephen Pitt was employed by the first respondent as a Murri Court Case Coordinator in Brisbane. 
  1. [2]
    In or around March 2011, Ms Ryle made a complaint regarding certain conduct of Mr Pitt. The complaint was a Public Interest Disclosure ('PID') within the meaning of the Public Interest Disclosure Act 2010 (Qld) ('the PID Act').
  1. [3]
    An investigation into Mr Pitt's conduct was undertaken. One allegation was substantiated and another was found not capable of substantiation. Mr Pitt received counselling from senior management as a consequence of this finding.
  1. [4]
    On 26 July 2018, Ms Ryle lodged a complaint ('the complaint') with the Anti-Discrimination Commission Queensland ('ADCQ') (now the Queensland Human Rights Commission ('QHRC')). Ms Ryle named the Department of Justice and Attorney-General ('DJAG') and Mr Pitt as respondents.[1]
  1. [5]
    The complaint of reprisal made pursuant to ss 40 and 44 of the PID Act was accepted by the ADCQ. The complaint alleged that Mr Pitt had taken reprisal action against Ms Ryle as a consequence of the PID she made in 2011.
  1. [6]
    In short terms, the particulars of Ms Ryle's complaint are that Mr Pitt learned of certain factual assertions ('the assertions') that had been put before a Magistrate in criminal proceedings in 2012. For the purposes of dealing with the assertions in these reasons for decision, it is not necessary for me to set them out with any particularity. Suffice to say: Ms Ryle was the subject of the assertions. The assertions were made to the court by a legal practitioner on behalf of a defendant. Ms Ryle had no role in those proceedings, nor was she given any notice that the assertions would be made, or any opportunity to respond to or refute them. The assertions were scandalous in nature and, if true, potentially indicated criminal conduct.
  1. [7]
    At some point after the Magistrates Court proceedings, Mr Pitt became aware of the assertions. Upon becoming aware Mr Pitt reported them to a manager. The nature of the assertions was such that they potentially represented misconduct by Ms Ryle within her employment relationship. The manager subsequently reported what Mr Pitt had told him and an investigation into Ms Ryle ('the investigation') was commenced, though not until almost 12 full months later, in September 2013. 
  1. [8]
    Following the investigation, Ms Ryle was swiftly and comprehensively cleared of any misconduct or impropriety. 
  1. [9]
    As an aside: It must be made clear for the record that the assertions have always been vehemently denied by Ms Ryle. Further, there does not appear to have been a scintilla of evidence to support them. It would appear that Ms Ryle was very much the victim of the opportunistic and dishonest conduct of the defendant in the Magistrate's Court proceedings. Further, it is deeply concerning that the defendant's lawyer, either through sheer incompetence or an utter disregard for his professional duties (or both), made the assertions on behalf of his client without exercising appropriate professional judgment e.g. by vetting the assertions before putting them before a court.[2]
  1. [10]
    During the investigation by her employer, Ms Ryle was denied the full details of how the assertions came to the attention of her employer. In the three years following the investigation, Ms Ryle made multiple Right to Information ('RTI') applications in respect of the allegation against her seeking inter alia the origins of the information used to formulate the allegation.
  1. [11]
    It was through this process that Ms Ryle came to discover (she estimates in July 2015) that it was the second respondent, Mr Pitt, who originally raised the assertions with her employer in 2012. Notwithstanding this revelation in July 2015, three full years would pass before Ms Ryle filed her complaint that Mr Pitt's actions amounted to reprisal. 
  1. [12]
    On 26 July 2018, Ms Ryle filed her complaint with the ADCQ (as it then was). The ADCQ received submissions from Ms Ryle regarding the issue of the expired time limit.[3] Having regard to those submissions, the ADCQ exercised its discretion pursuant to s 138 of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') to allow the complaint notwithstanding it was filed outside the prescribed time limit. 
  1. [13]
    The parties were directed to participate in a conciliation conference at the ADCQ which was unsuccessful. The matter was subsequently referred to the Queensland Industrial Relations Commission ('the Commission').

Proceedings before the Commission

  1. [14]
    At the first mention of this matter at the Commission the first respondent sought to invoke the discretion available to me pursuant to s 175(2) of the AD Act. The first respondent formally applied on 23 August 2019 for the proceedings to be dismissed. The matter was subsequently programmed for hearing on this preliminary issue.

Matters for determination

  1. [15]
    Section 175 relevantly provides as follows:
  1. Time limit on referred complaints
  1. (1)
    The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to commissioner more than 1 year after the alleged contravention of the Act.
  1. (2)
    If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.
  1. [16]
    The conduct constituting the reprisal i.e. Mr Pitt reporting the assertions to his colleague, is alleged to have occurred on or about 23 October 2012. However, it appears uncontroversial as between the parties that the full suite of material facts of the alleged reprisal were not known to Ms Ryle until July 2015.
  1. [17]
    The complaint was received by the ADCQ on 26 July 2018, almost three full years after Ms Ryle became aware of all of the material facts of the alleged offence.
  1. [18]
    On a narrow reading of s 138 of the AD Act, the one-year statutory time limit expired in October 2013. Taking a broader construction of s 138, if the time limit does not commence to operate until Ms Ryle is aware of all of the material facts constituting the contravention, Ms Ryle's complaint was still, at best, not made until two years after the one-year time limit from July 2015 would have expired. 
  1. [19]
    The primary matter for my determination is whether I should exercise my discretion to deal with the complaint per s 175(2) of the AD Act. Within that question it is necessary for me to determine when the time limit imposed by s 138 of the AD Act commenced to operate on Ms Ryle's complaint.
  1. [20]
    Further, two secondary matters of significant contention between the parties arose subsequent to the commencement of the hearing.
  1. [21]
    Firstly, on 16 June 2020, almost a month after the hearing on the jurisdictional matter, Ms Ryle filed an application in proceedings seeking the suppression of her name in accordance with s 191 of the AD Act and ss 451 and 454 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Following receipt of this application, the parties were invited to provide written submissions on the question of suppression.
  1. [22]
    Secondly, at the hearing in May 2020, the first respondent sought to rely on correspondence between Ms Ryle's solicitor and Mr Shane Duffy, Chief Executive of the Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd ('ATSILS') dated 15 September 2017 ('the correspondence'). The correspondence is annexed to an affidavit of Ms Melina Marincowitz, Senior Principal Lawyer with Crown Law.[4] Ms Ryle objects to the admission of the correspondence on the basis that it is purportedly protected by legal professional privilege ('LPP').
  1. [23]
    Counsel for Ms Ryle was not in a position to fully argue the objection at the hearing. The parties were therefore given leave to submit written submissions on the objection in the weeks following the hearing. Each of the parties subsequently filed extensive submissions on the question of whether or not the correspondence was inadmissible by virtue of LPP attaching to it.
  1. [24]
    For reasons of efficiency, I will dispense with the secondary matters before turning to the application to dismiss.

Suppression application

  1. [25]
    Almost a full month after the hearing on 19 May 2020, Ms Ryle filed an application seeking an order prohibiting the disclosure of her identity. In an annexure to the application, the request for suppression was particularised by a reference to the assertions about Ms Ryle made before the Magistrates Court. Concern about the disclosure of the details of the assertions appears to be the sole basis for the application.[5]
  1. [26]
    The parties were directed to file written submissions. I do not intend to set out the full particulars of those submissions. Ms Ryle's submissions consist of multilayered and alternative arguments that traverse a wide range of statutory and other considerations.
  1. [27]
    In respect of the respondent's response, it is sufficient to say that they oppose the application on the basis that Ms Ryle has not made out an argument that her circumstances ought to be regarded as an exception to the open justice principle.

Statutory basis of application

  1. [28]
    In making her application, Ms Ryle ultimately relied on s 191 of the AD Act, ss 451, 454, and 580 of the IR Act, and s 25 of the Human Rights Act 2019 (Qld) ('the HR Act').
  1. [29]
    Section 191 of the AD Act relevantly provides:

191 Anonymity

  1. (1)
    If the tribunal is of the reasonable opinion that the preservation of anonymity of a person who has been involved in a proceeding under the Act is necessary to protect the work security, privacy or any human right of the person, the tribunal may make an order prohibiting the disclosure of the person's identity.  (Emphasis added)
  1. [30]
    Sections 451 and 454 of the IR Act relevantly provide:

451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may—

(a) give directions about the hearing of a matter; or

(b) make a decision it considers appropriate, irrespective of the relief sought by a party; or

(c) make an order it considers appropriate.

454 Commission to prevent discrimination in employment

In exercising a power, the commission must not allow discrimination in employment.

  1. [31]
    Section 451 does not grant power for the making of any order. It must be an order made for the performance of the Commission's functions. The functions of the Commission are listed at s 447 of the IR Act. Section 447(1)(n) and (2) relevantly provide:

447  Commissions functions

  1. (1)
    The commissions functions include the following -

…

(n) dealing with -

  1. (i)
    applications brought under this Act or another Act, including for public service appeals; or…

…

  1. (2)
    The commission must perform its functions in a way that -
  1. (a)
    is consistent with the objects of this Act; and
  1. (b)
    avoids unnecessary technicalities and facilitates the fair and practical conduct of   proceedings under this Act.
  1. [32]
    I am satisfied that s 451 of the IR Act is the statutory basis for the power to make the suppression order sought.
  1. [33]
    It is unclear why Ms Ryle's legal representatives referred to s 454 in the application filed on 16 June 2020. It does not appear to be referenced in any part of the written submissions, nor do its contents appear to have any relevance to the application.
  1. [34]
    Section 580 of the IR Act relevantly provides:

580  Confidential material tendered in evidence

…

  1. (5)
    The court, commission or registrar may direct:

(a) a report, or part of a report, of proceedings in an industrial cause not be published; or

(b) evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

  1. (6)
    The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar.
  1. (7)
    The direction may be given if the court, commission or registrar considers:

(a) disclosure of the matter would not be in the public interest; or

(b) persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

(Emphasis added)

  1. [35]
    The relevant provisions of s 580 apply only to a direction that may be given in an 'industrial cause'. The term 'industrial cause' is defined as including 'an industrial matter and industrial dispute'.[6] An 'industrial dispute' is relevantly defined as a dispute about 'an industrial matter'.[7]
  1. [36]
    Schedule 5 of the IR Act refers the definition of the term 'industrial matter' to s 9 of the IR Act which provides:

9 What is an industrial matter

(1) An industrial matter is a matter that affects or relates to -

  1. (a)
    work done or to be done; or
  1. (b)
    the privileges, rights or functions of -

(i) employers or employees; or

(ii) persons who have been, or propose to be, or who may become, employers or employees; or

  1. (c)
    a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2) However, a matter is not an industrial matter if it is the subject of a proceeding for -

(a) an indictable offence; or

(b) a public service appeal.

(3) Without limiting subsection (1) or affecting subsection (2) , a matter is an industrial matter if it relates

to a matter mentioned in schedule 1.

(Emphasis added)

  1. [37]
    Schedule 1 of the IR Act lists 30 examples of 'industrial matters'. Each of them has, as a fundamental characteristic, a clear connection to the relationship between employers and employees. This extends in a very broad way to e.g. 'discrimination in employment'.
  1. [38]
    While s 44 of the PID Act allows a complainant to make a complaint of reprisal under the AD Act, it does not change the character of such a complaint to one of e.g. discrimination in employment. Ms Ryle's complaint is exclusively in relation to alleged reprisal in response to her PID i.e. an offence arising under the PID Act.
  1. [39]
    The making of a PID and the protections afforded under s 40 of the PID Act are not matters that have, as a fundamental characteristic, a clear connection to the employment relationship. While PIDs and complaints about reprisal can arise in the context of an employment relationship, the employment relationship is merely a setting for the relevant events. 
  1. [40]
    In these circumstances, I consider that Ms Ryle's complaint is not an 'industrial cause'. As such, the discretion granted to me by s 580 of the IR Act does not extend to this matter. If I am wrong in that conclusion, for the reasons set out below, I would decline to make an order pursuant to s 580 in any event.
  1. [41]
    Finally, in written submissions accompanying the application for suppression, Ms Ryle also sought to rely on s 25 of the HR Act. Ms Ryle subsequently discontinued her reliance on the HR Act.[8]
  1. [42]
    It is noted by Ms Ryle that these proceedings pre-date the commencement of the HR Act. In addition to the reasons cited by Ms Ryle it is necessary to comment on her now abandoned submission and consider why the HR Act would not be applicable in the way Ms Ryle had previously submitted it would be.
  1. [43]
    The submission regarding the HR Act was premised on the assertion that the Commission is a 'public entity' within the meaning of s 9(1)(f) of the HR Act.
  1. [44]
    However, s 9(4)(b) of the HR Act relevantly provides:
  1. (4)
      However, a public entity does not include –

…

(b) a court or tribunal, except when acting in an administrative capacity;

…

  1. [45]
    The Commission is a court of record.[9] Further, the substantive proceedings and the application for suppression now made involve an exercise of judicial powers.[10] While there will be matters requiring the Commission to act in an administrative capacity, this is not one. Consequently, the HR Act has no application.
  1. [46]
    For completeness, I would add that even if the HR Act did apply as submitted,[11] nothing about the publication of a decision of this Commission that included Ms Ryle's name would amount to an 'unlawful' or 'arbitrary' 'interference' with Ms Ryle's privacy or an 'unlawful' attack on her reputation within the meaning of these terms as they appear in s 25 of the HR Act (or more generally for that matter).
  1. [47]
    In the circumstances, the only statutory provisions in which a discretion is vested in me to grant the orders sought by Ms Ryle are s 191 of the AD Act and s 451 of the IR Act.

Matters informing the discretion

  1. [48]
    Ms Ryle's submissions do not directly refute that the principle of open justice applies. Her arguments are that her circumstances give rise to an exception to the principle.
  1. [49]
    As I noted above, Ms Ryle's submissions traverse a broad landscape of propositions, and draw upon multiple authorities, statutes, and international conventions. I do not propose to revisit them in these reasons. I note that none of them are expressed to operate with paramountcy over the principle of open justice.
  1. [50]
    Notwithstanding the multitude of grounds relied on, Ms Ryle's submissions can ultimately be condensed to a simple and singular proposition, namely: in circumstances where the assertions are unsubstantiated, defamatory, scandalous and distressing, their continued reproduction and publication in a reported decision will give rise to an array of detriments to Ms Ryle, both professionally, culturally, and personally. As such, Ms Ryle contends her identity ought to be hidden.
  1. [51]
    The discretion granted by s 191 of the AD Act and s 451 of the IR Act are broad. There is little about either provision to identify what matters ought to inform the exercise of my discretion. In the circumstances, I consider that the principle of open justice is an appropriate framework within which to contemplate the exercise of that discretion.
  1. [52]
    In Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) I recently held:[12]

[46] There is a broad discretion to make orders suppressing the name of a party or parties to proceedings in the Act. There is significant jurisprudence with respect to the principles that should inform my discretion to suppress details of a matter, including the name of a party. In R v O'Dempsey (No 3), it was held:

The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined.

Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done.

[47] Some exceptions to this principle were identified in the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales, by President Kirby (as he then was) where he observed:

Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case.

[48] The guiding principles for the exercise of a discretion are comprehensively set out in J v L & A Services Pty Ltd, (recently applied by Industrial Commissioner Pidgeon in Mohr-Edgar v State of Queensland (Legal Aid Queensland)). They are relevantly as follows:

  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  1. Publicity may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility...
  1. The permitted exceptions are... [based] upon the actual loss of [practical] utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected...
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. (a)
    Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information...
  1. (b)
    A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. (c)
    An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. … information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public...

[53] There is a very real need to adhere to the principles of open justice in all but exceptional circumstances. The principles determining the circumstances under which a party might enjoy a limited exception to open justice are well defined. Dr Algahamdi fits none of the criteria necessary to invoke my discretion. Moreover, nothing about the 2016 decision objectively prejudices her, nor has she produced any evidence that demonstrates to the contrary.

(Emphasis added and footnotes omitted)

  1. [53]
    I can well understand why the assertions (if made public) would be an ongoing cause of concern and distress for Ms Ryle. However, the assertions and the circumstances under which they were made was a wholly uncontroversial fact in these proceedings. Notwithstanding this, for some astonishing reason, both parties put the unabridged scandalous details before me in their filed material not just once, but again and again, in various iterations, without any clear necessity to do so.
  1. [54]
    The principle of open justice must apply to reporting of decisions in all but the most extraordinary circumstances.[13] There is no explanation for why the parties unnecessarily put the details before me as they did, or why neither of them contemplated this potential for embarrassment until four weeks after the hearing. I do not consider it appropriate to put the principle to one side simply to overcome the consequences of litigation that was thoughtlessly executed by the parties.
  1. [55]
    I consider that the potential for Ms Ryle's embarrassment has occurred primarily because both parties have included large amounts of information about the assertions entirely unnecessarily. Having regard to the authorities cited in the extract above, I am not satisfied that there is any proper basis to supress Ms Ryle's name from these proceedings.
  1. [56]
    While I am not inclined to supress Ms Ryle's identity, there is another approach to this matter that will avoid embarrassment to her. I will outline that alternative immediately below.
  1. [57]
    In the circumstances, I refuse the application for suppression.

Another approach - disregard of irrelevant evidence

  1. [58]
    This matter is (or at least, was) fundamentally an application to deal with an extension of time. Such applications typically involve the consideration of well-established and very confined issues. Such matters are rarely accompanied by factual or legal complexity.
  1. [59]
    By contrast, these proceedings have produced multiple volumes of documentation that appear to have been included without any proper thought as to why. Much of it was unnecessary for the purposes of the parties arguing their respective positions or for my decision on (what should have been) the very narrow question before me.
  1. [60]
    While I appreciate that the matters to be contested in any proceeding will shift or change after affidavits have been filed, there were numerous documents filed in this matter containing sensitive content that were not in any way necessary or relevant, or if they were, were only relevant for historical context.
  1. [61]
    The disclosure of the full and scandalous particulars of the assertions could easily have been avoided by e.g. redaction of those parts of the documents, or a set of agreed facts between the parties (or both). 
  1. [62]
    But instead of this approach (which would have been both efficient litigation and sensitive to the issues affecting Ms Ryle) the parties each elected to furnish me with all of the details, over and over again. While it is fair to say that the respondents prepared their documentary case long in advance of any request for suppression by Ms Ryle, they were an equal participant in the filing of material that served no purpose to the matters in issue.
  1. [63]
    The thoughtless filing of excessive material is an all-too-common failing by litigants and their representatives which, at best, increases the burden on the court to process and dispense with a matter and, at worst, produces inter alia angst in persons like Ms Ryle because sensitive information is carelessly included for no identifiable reason.
  1. [64]
    By way of some examples: amongst the vast amounts of material tendered in this matter was the transcript of the Magistrates Court proceedings where the scandalous assertions about Ms Ryle were first made. This is attached to an affidavit filed on behalf of the first respondent.[14]
  2. [65]
    The purpose of the affidavit is to respond to submissions made by Ms Ryle's solicitor about the production of the allegedly privileged correspondence (discussed below). The evidence of Ms Marincowitz is that she received that correspondence from the ADCQ under cover of an email along with a bundle of other documents filed by Ms Ryle in support of her complaint there.
  1. [66]
    In the circumstances of that simple and complete explanation, I cannot see why it was necessary for Ms Marincowitz in responding to these matters to offload the entire collection of attachments received from the ADCQ in her affidavit. I cannot see why it was necessary to attach the ADCQ file at all.
  1. [67]
    The sworn affidavit of a legal practitioner setting out the circumstances of how she came to possess allegedly privileged correspondence ought to be sufficient response to pointed submissions querying the issue. The response is not in any way enhanced by attaching the (extensive) bundle of documents that had been received.
  1. [68]
    Included in that bundle was the previously mentioned transcript from the Magistrate's Court proceedings. I have no clue why it was considered necessary for the transcript of the Magistrates Court proceedings to be put before me for that purpose, or for any other reason. It proved no fact material to the question of whether Ms Ryle ought to have her application heard out of time. It was no answer to the allegations of improper possession of an alleged privileged letter.
  1. [69]
    Secondly, Ms Ryle herself also attaches to her affidavit an email she authored reproducing the scandalous assertions again, without any clear or compelling necessity to do so. She also attaches her submission to the ADCQ about the time limitation issue which also sets out the scandalous assertions in great detail.
  1. [70]
    In addition to these, there are multiple references to the assertions, in full detail, in multiple letters and submissions and medical reports attached to affidavits filed by both parties.
  1. [71]
    I have been thoroughly exasperated by the task of having to wade through hundreds of pages of material in the vain task of identifying which morsel of information they contained that was going to be of any use to determining the matter. The thoughtless inclusion of documents in litigation is not only problematic for the expedient delivery of decisions, but it also delays the conduct of other matters being dealt with by the Commission by monopolising writing time. Such a practice creates a serious risk that a decision maker will fall into error after making a wrong turn in the paper labyrinth created by the parties. This in turn increases the risk of appeals, which leads to more time being consumed, and more expense to all involved.
  1. [72]
    Having regard to the written submissions it is clear that the parties expended significant amounts of time and money to fight the suppression application. The entire spectacle could have been avoided, and the Commission spared the not insubstantial task of resolving the application, if each party had instead acted with proper attention to detail in considering what documents and other evidence actually needed to be before me.
  1. [73]
    I would have expected the parties to have contemplated these matters long before I reserved my decision, rather than launching a controversial interlocutory application after the close of evidence. Had they acted properly and sooner, significant cost and delay might have been avoided.
  1. [74]
    While I have declined the application for suppression, it will already be apparent from the manner in which I have written these reasons that I have elected to avoid entirely the inclusion of the scandalous details of the assertions that are potentially embarrassing for Ms Ryle by simply referring to them as 'the assertions'. Recording the facts in these reasons in this confined way will adequately spare Ms Ryle of any embarrassment while still allowing the principle of open justice to operate.

Identification of a minor

  1. [75]
    One further problem arises from the material placed before me by the parties. Many of the documents placed (unnecessarily) into evidence reveal the identity of a person involved in criminal proceedings as a defendant. More concerning is that the person in question apparently has a juvenile criminal history. The criminal history of minors, even after they reach the age of majority, is information of an extremely sensitive nature and ought to rarely (if ever) be publicly disclosed.[15]
  1. [76]
    No objections or concerns were raised about this content in the material at the time of the hearing. No submissions were made as to how (or if) I should deal with it. Ms Ryle does not seek to protect the identity of the (former) minor. Ms Ryle has only sought to protect her own identity from publication.
  1. [77]
    In the circumstances, I consider that this will require the making of an appropriate order pursuant to s 451 of the IR Act to seal the file for the purposes of protecting the identity of the person in question. I will deal with this matter further in my orders.

Correspondence subject to claims of LPP

  1. [78]
    On 23 August 2019, the first respondent filed the affidavit of Ms Melinda Marincowitz attaching inter alia correspondence dated 15 September 2017 ('the correspondence').[16] The correspondence is between the solicitors currently acting for Ms Ryle and Mr Shane Duffy, the Chief Executive of ATSILS.
  1. [79]
    On 27 September 2019, a further affidavit of Ms Marincowitz was filed in response to submissions from Ms Ryle's solicitors objecting to the inclusion of the correspondence in her earlier affidavit.[17] The submissions apparently included allegations of professional impropriety directed at Ms Marincowitz.
  1. [80]
    The submissions inter alia questioned how the correspondence came into the respondent's possession and asserted it was marked 'without prejudice'. In her second affidavit Ms Marincowitz explained that the correspondence was provided to the respondent by the ADCQ as part of the materials filed by Ms Ryle with her complaint. Ms Marincowitz also noted the correspondence was not marked 'without prejudice'.
  1. [81]
    In a further example of the unprofessional approach taken in this matter, it appears that the allegations were entirely without foundation.[18]
  1. [82]
    Having regard to the affidavit of Ms Marincowitz filed 23 August 2019, it appears that the purpose for identifying and tendering the correspondence that is MM-22 to her affidavit is to support a submission that:
  • Ms Ryle had legal representation in September 2017; and
  • Ms Ryle had an appreciation of her right to pursue action for reprisal and that she had sought legal advice from other lawyers as early as October 2013.
  1. [83]
    Counsel for Ms Ryle objected to the admission of the correspondence at the close of the hearing but was unable to fully elaborate on the objection at that time. Subsequently, pursuant to directions issued at the close of the hearing, Ms Ryle filed submissions outlining the objection to the admission of the correspondence. Ms Ryle contends that the correspondence is subject to LPP and cannot be admitted.
  1. [84]
    The submissions of the parties extensively delve into authorities on the doctrine of LPP however, in my view the correspondence is quite obviously inadmissible for a more compelling reason i.e. Ms Marincowitz was not an author, addressee, or a direct recipient of the correspondence. The only evidence that Ms Marincowitz can give about the correspondence in those circumstances is that it was a document contained in the materials sent to the respondent by the ADCQ.
  1. [85]
    What purports to be 'evidence' from Ms Marincowitz in her affidavit attaching the correspondence is no more than a recitation of some of the content of the correspondence and a submission by her about what facts she contends are proved by the correspondence. These comments are submissions and are mere speculation and opinion. They are of no weight in the absence of evidence from Ms Ryle about the contents of the correspondence. The respondents did not require Ms Ryle for cross examination.
  1. [86]
    Cross examination of Ms Ryle would have been the respondents' opportunity to put the correspondence to her and to obtain evidence about her knowledge and understanding of its contents. If the respondents had intended to press the submissions set out in Ms Marincowitz's affidavit, they ought to have first put those propositions to her.
  1. [87]
    In the circumstances, I consider that the matters contained in the correspondence, while potentially relevant to my determination of the time limitation issue, can be given little to no weight when tendered in the absence of evidence from Ms Ryle. I am therefore not prepared to admit the correspondence on that basis.
  1. [88]
    It follows that I do not need to decide whether the correspondence is protected by LPP. Notwithstanding this conclusion, there are still two important facts that can be established from the parties' submissions on the admissibility of the correspondence.
  1. [89]
    Without having regard to the content of the correspondence, I can have regard to the fact that it appears to be entirely uncontroversial that the solicitors acting on behalf of Ms Ryle wrote to ATSILS in September 2017.[19] Whether the correspondence is the same correspondence handed to Mr Duffy on 18 September 2017 or a draft version is irrelevant.
  1. [90]
    From this uncontroversial premise I can conclude two important facts: firstly, that Ms Ryle had access to legal advice in September 2017 and secondly, that she apparently had sufficient capacity to engage and instruct solicitors to correspond on her behalf. 
  1. [91]
    It might well be countered by Ms Ryle that she was not free from mental health issues at that time. That may well be true. However, having a mental health condition and lacking capacity to conduct one's affairs more often can be two entirely different states.
  1. [92]
    Further, I feel confident that the legal representatives who were then (and are now) acting for Ms Ryle would not have taken instructions from her or written the correspondence on her behalf without being satisfied that she was sufficiently compos mentis. If they were not so satisfied, their conduct in corresponding on Ms Ryle's behalf would be a serious breach of their professional duties to their client.
  1. [93]
    In my view, the correspondence is far more relevant to my determinations for what it represents than for what it contains.

The out of time complaint

Referral to this Commission

  1. [94]
    On 31 May 2019, Ms Ryle requested that the ADCQ refer her complaint to the QIRC. The referral of the complaint was filed in the Industrial Registry on 10 July 2019.
  1. [95]
    In correspondence received on 29 July 2019, the respondents requested that the matter be listed for a directions hearing to raise a challenge to the matter proceeding on the basis that it was filed outside the one-year time limit prescribed by the AD Act.
  1. [96]
    On 2 August 2019, a mention was held and a Directions Order subsequently issued requiring the parties to provide submissions with regard to whether the complaint should be dealt with out of time.
  1. [97]
    On 23 August 2019, the respondents filed an application requesting that an extension of time should be refused on the basis that:
  • The complaint is significantly outside the one-year statutory limitation period for referred complaints per s 175(1) of the AD Act; and
  • On the balance of fairness between the parties, it would not be reasonable for the Commission to deal with the complaint per s 175(2) of the AD Act.

Submissions of the respondents

  1. [98]
    The respondents filed submissions and affidavits of Ms Marincowitz in support of the application. In summary, the respondents submit that:
  • The conduct which forms the basis of Ms Ryle's complaint is alleged to have occurred on 25 October 2012 and Ms Ryle did not lodge her complaint until 25 July 2018;
  • The delay of 6 years and 4 months is inadequately explained by Ms Ryle;
  • On 19 October 2013, Ms Ryle met with Maurice Blackburn Lawyers with a view to obtaining legal advice shortly after the investigation of her conduct was commenced by DJAG;
  • On 15 September 2017, Ms Ryle instructed Susan Moriarty & Associates to send a letter on her behalf, some 10 months before her complaint was lodged;
  • As a lawyer, Ms Ryle should have a better appreciation of time limitations;
  • Considering the delay and the prejudice that will likely be suffered by the respondents, it would not be reasonable on balance of fairness between the parties, to deal with the complaint; and
  • The Commission should not accept the complaint and dismiss the proceedings.

Response submissions of the complainant

  1. [99]
    In her reply submissions filed on 17 September 2019, Ms Ryle submitted (in summary) that:
  • The events surrounding the subject of her complaint has caused immense detriment to her physical and psychological health, professional and cultural reputation and community standing;
  • The Ethical Standards Unit did not advise her of the complaint by Mr Pitt until 12 months after it had been made;
  • After a period of leave, DJAG refused to reinstate Ms Ryle to her substantive position or provide her with 'host employment' which further aggravated her severe anxiety;
  • DJAG refused to extend her gradual return to work program contrary to the recommendation of her treating psychiatrist;
  • Her mental state, pressing nature of maintaining her livelihood and being a sole parent precluded Ms Ryle from seeking advice about the options available to her;
  • Her poor psychological health persisted as she was unable to afford the 'intensity or duration' of counselling required in her circumstances;
  • Because of the nature of the allegation against her, she states she could not 'face the prospect of fighting for my rights';
  • A number of familial adjustments have needed to be made to care for an aging parent with declining health; and
  • She did not make the connection 'between Mr Pitt's allegations and the realisation that his actions constituted a PID' for some time.

Relevant principles

  1. [100]
    Section 175(2) of the AD Act allows the Commission to waive the statutory time limit of 1 year imposed by s 138 if 'on the balance of fairness it would be reasonable to do so'.
  2. [101]
    The principles informing such a discretion are well traversed. While some of the authorities cited below emerge in different statutory settings, the nature of the discretion is materially the same and the reasoning of those authorities is apposite.
  1. [102]
    In Brisbane South Regional Health Authority v Taylor,[20] the High Court noted that granting an extension of time is a discretion, and the purpose of exercising it is to ensure a fair trial on the merits of the case.
  1. [103]
    The principles guiding when the discretion should be granted were identified in Pagura-Inglis v Minister for Education,[21] and adopted by Member Boddice SC (as he then was) in Wong v Medical Board of Queensland.[22] When deciding whether to exercise the discretion to accept a complaint out of time under s 175 of the AD Act, it is relevant to consider:
  1. (a)
    the length of the delay;
  1. (b)
    any explanation by the Complainant for the delay;
  1. (c)
    any prejudice to the Respondent, should the discretion be exercised in the Complainant's favour;
  1. (d)
    any prejudice to the Complainant, should the discretion be exercised in the Respondent's favour; and
  1. (e)
    whether there is a lack of merit to the complaint.

Consideration

  1. [104]
    A hearing was held on 19 May 2020 to determine whether the Commission would grant an extension of time to hear the complaint. Ms Ryle did not give evidence in person. Ms Ryle's affidavit filed on 1 November 2019 served as her evidence. The respondents did not require Ms Ryle for cross examination and her affidavit was admitted by consent.[23]
  1. [105]
    Ms Ryle called evidence from Dr Gary Larder, consultant psychiatrist. The first respondent lead evidence from Dr Sharon Harding, consultant psychiatrist. The respondent also relied on affidavits from Ms Marincowitz a solicitor with Crown Law.[24] Ms Marincowitz was not required for cross examination and her affidavits were admitted by consent.
  2. [106]
    It is not necessary for me to summarise the evidence of each witnesses. The salient parts of the evidence of each witness will be discussed in my consideration that follows.

Length of delay

  1. [107]
    Section 138 of the AD Act prescribes a time limit for filing a complaint 'within 1 year of the alleged contravention'. In this matter determining the length of the delay is not a straightforward exercise. The first issue for Ms Ryle is to establish when she was subject to the limitation imposed by s 138 of the AD Act.
  1. [108]
    It is not controversial that the alleged reprisal occurred on or about 23 October 2012 when Mr Pitt spoke with a manager (Mr Chris White) and shared the assertions that had been made in the Magistrates Court. Mr White subsequently elevated the details of the allegations which in turn lead to an investigation by an Ethical Standards unit into Ms Ryle's alleged conduct.
  1. [109]
    Incredibly, and for reasons that are not clear, the investigation did not commence until September 2013, almost a year after the alleged reprisal. The commencement of the investigation was the first knowledge that Ms Ryle had of the assertions that had been made about her before the Magistrates Court.
  1. [110]
    The investigation was concluded relatively quickly, and Ms Ryle was completely exonerated by DJAG on 30 October 2013.
  1. [111]
    Ms Ryle was not informed by the investigator or the first respondent of the role played by Mr Pitt in the genesis of the investigation. I make no criticism of the first respondent taking that approach. I note the fact only because it is relevant to establishing Ms Ryle's lack of awareness of the elements of a reprisal complaint until much later. 
  1. [112]
    There is no dispute that Ms Ryle experienced a deterioration in her mental health as a consequence of being made aware of the scandalous assertions and more significantly, their dissemination throughout her professional and cultural networks. Ms Ryle was certified unfit for work by her general practitioners from 10 October 2013 until 28 March 2014.[25]
  1. [113]
    Dr Helen Siddle, Consultant Psychiatrist, informed QSuper in a medico-legal report dated 3 March 2014 that Ms Ryle had suffered an adjustment disorder.[26]
  1. [114]
    From February 2014, Ms Ryle commenced making Right to Information ('RTI') applications. In her affidavit, Ms Ryle says she made six RTI applications between 26 February 2014 and 18 June 2019. She purports to attach these to her affidavit as Exhibit LR-09.
  1. [115]
    It is unclear if there were actually more RTI applications as Ms Ryle attests, but Exhibit LR-09 comprises only four applications that bear the dates:
  • 26 February 2014;
  • 18 August 2015;
  • 11 August 2015; and
  • 18 June 2018.
  1. [116]
    In her affidavit, Ms Ryle deposes to the circumstances that gave rise to her acquiring the knowledge that Mr Pitt was the person who provided the information that lead to her being investigated. At paragraph 12 of her affidavit, she indicates that 'it was not until about July 2015' that she discovered Mr Pitt was the source of the information. This does not appear to be disputed by the respondents.
  1. [117]
    Having regard to this evidence, it would seem that unless there was another RTI search that is not in evidence, the RTI search conducted on 26 February 2014 was the search that produced the documents allowing Ms Ryle to ascertain this critical fact. I note from other parts of Exhibit LR-09 that the documents were released to her on or about 3 June 2014.
  1. [118]
    It is not disputed that Ms Ryle remained partially incapacitated throughout most of 2014 in that she was not able to return to her substantive role. Whether or not this was due to her illness or other management factors, it is clear that she was distressed by this and was preoccupied with returning to her role.
  1. [119]
    Ms Ryle has given an account of her difficulties in processing the volumes of information contained in the RTI documents released to her. According to Ms Ryle, her (undisputed) fluctuating mental health issues contributed to this delay.
  1. [120]
    In all of those circumstances, I consider it was not unreasonable for Ms Ryle to have taken nearly 12 months to fully review the large number of documents she received. Significantly, it was only when she completed this task that Ms Ryle acquired the knowledge of Mr Pitt's involvement in the matters giving rise to the investigation. It was only at this time that Ms Ryle had sufficient knowledge to allege reprisal. 
  1. [121]
    While the language of s 138 of the AD Act expressly limits the making of a complaint to 'within 1 year from the date of the contravention', I note that the operation of such statutory limitations in other causes of action can be altered or qualified in certain circumstances where key facts were not within a plaintiff's knowledge.[27]
  1. [122]
    It would seem a particularly unfair reading of s 138 of the AD Act to apply it in a rigid and literal fashion, with a consequence that a complainant would be denied an opportunity to pursue a complaint merely because the factual elements of that complaint were not known to them during the limitation period. This is especially so in this matter where e.g. Ms Ryle had requested the information in 2013 but it was denied to her.
  1. [123]
    Importantly, it is clear that Ms Ryle took appropriate steps to ascertain the relevant information, and she did so within a reasonable time frame given the barriers she faced with her fluctuating mental health.
  1. [124]
    In those circumstances, I consider that the time limit prescribed by s 138 of the AD Act ought to be read generously. It ought to be read in such a way that it allows for circumstances where it does not commence to operate until such time as the person affected, having made reasonable and timely inquiries, becomes aware of all of the material facts of the contravention.
  1. [125]
    In this instance, I consider that the time limit prescribed by s 138 of the AD Act commenced from July 2015, when Ms Ryle acquired the necessary knowledge of the factual elements of her complaint. Consequently, the time limit lapsed in July 2016, which in turn makes the delay a full two years.
  1. [126]
    If I am wrong in applying a broad construction to s 138 of the AD Act, I would alternatively conclude that the circumstances giving rise to the delay up until July 2015 and the balance of fairness would warrant an extension up to July 2016 by virtue of the discretion available under ss 138(2)(a) or 175(2) of the AD Act.
  1. [127]
    In all of these circumstances, for the purposes of identifying the length of the delay in this matter, I consider it to be the two-year period beyond the expiration of the time limit in July 2016.
  1. [128]
    I hasten to add that while I have artificially set the time limit to commence operation from July 2015, I would have anticipated that the discovery of Mr Pitt's involvement would have been of great significance to Ms Ryle. She was clearly focused on identifying the source of the information that led to the investigation. She asked about it at the time, and subsequently undertook an RTI search to try to discover more information. Ms Ryle did not simply obliquely stumble upon this material fact in the course of some unrelated activity. I would have expected a more timely reaction upon the discovery of this fact. Ms Ryle was either about to be or was a recently admitted legal practitioner. I would expect that she would have a more acute awareness of time limitations than the average litigant.
  1. [129]
    In those circumstances, while I consider the time limit has nominally expired in July 2016, I intend to scrutinise Ms Ryle's explanation for the delay in commencing proceedings for the entire period from July 2015 to July 2016 given she had acquired the material facts of the alleged reprisal by then.
  1. [130]
    As to the length of the delay, it is perilous logic to speak of the significance of a delay by mere reference to the period of time involved. In some matters a delay of two years could be inconsequential. In other matters, a delay of two weeks may cause irreparable prejudice to a respondent. The facts of each matter will be determinative. That said, while the significance or otherwise of a delay might be distinguished on the facts of each case, in the ordinary experience of litigation, a period of two years will almost always be significant.
  1. [131]
    I consider the delay of two years in this case to be significant. A significant delay of this type will require a compelling explanation from Ms Ryle if she is to overcome the jurisdictional barrier it creates.  

Explanation for delay

  1. (i)
    Evidence of Ms Ryle
  1. [132]
    In an unusual approach to such an application, Ms Ryle provided no direct evidence of an explanation for her delay in filing her complaint. Ms Ryle's only evidence in the proceeding was her affidavit filed on 1 November 2019. Nowhere in her sworn testimony does Ms Ryle offer an explanation.
  1. [133]
    Notwithstanding the lack of explanation, it was evident from the manner in which Ms Ryle conducted her case (and the manner in which the respondents responded) that Ms Ryle intended to rely on her mental health as the explanation for the delay.[28] Even then, I had to press Counsel for Ms Ryle to identify the explanation.
  1. [134]
    At the close of evidence, without any truly overt explanation offered by Ms Ryle or her representatives, I had to seek clarification from Counsel for Ms Ryle that, what appeared to be her attempt at an explanation was in fact the explanation. The relevant exchange is as follows: [29]

COMMISSIONER: …your response to this application is effectively that the explanation for the delay is that Ms Ryle was – it's not the case that she was suffering from a mental health issue – whatever the diagnosis might be – I don't think there's any contest about that in broad terms, but your case is presumably that it was…a mental health issue that was so pervasive that it robbed her of the capacity to organise herself to file this application within the appropriate timeframe. That's your case in a nutshell, isn't it?

MR TRACEY: On the particular issue of delay and the medical aspects, yes that's right.   

  1. [135]
    It would seem that Ms Ryle and her representatives misapprehended the evidentiary weight that can be given to attachments to affidavits. In the filed written submissions Counsel for Ms Ryle foreshadows her reliance on documents not before me in sworn evidence.[30] Similar submissions were made at the close of proceedings where it was argued that certain documents attached to Ms Ryle's application to the ADCQ contain the explanation for the delay.[31]
  1. [136]
    A significant problem arises from this: the documents in question are merely identified as documents provided by Ms Ryle to the ADCQ in relation to s 138 of the AD Act.[32]
  1. [137]
    Documents attached to an affidavit or a complaint to the ADCQ are not evidence of their content.
  1. [138]
    Even if the submissions attached to Ms Ryle's affidavit or the letter of 25 July 2018 accompanying her complaint to the ADCQ were evidence, they still do not directly state that the explanation for the delay was related to Ms Ryle's mental health issues. Certainly, there are numerous references to the mental health issues that Ms Ryle has experienced. But nowhere is there an explicit statement setting out a causal nexus between the mental health issues and the delay in filing.
  1. [139]
    Ms Ryle also offers explanations with equal adamance that include:
  • It took her some time to realise Mr Pitt's conduct was potentially a reprisal for the PID;[33]
  • She commenced proceedings as soon as 'other responsibilities' allowed;[34] and
  • She had to come to terms with fears about being professionally ruined and publicly shamed if she complained.[35]
  1. [140]
    Further, and significantly in my view, the submission by Ms Ryle to the ADCQ on 6 September 2018 appears to state that the 'turning point' came when she was notified of another investigation into her conduct. According to those submissions it was this event that ultimately motivated the timing of making the complaint.[36]
  1. [141]
    If I were to accept the submission as evidence, I could only conclude many different factors determined the timing of her complaint to the ADCQ. Among all of those cited reasons, in both the letter accompanying her complaint on 25 July 2018 and the submissions on 6 September 2018, there is no overt reference to an all pervasive disabling mental illness.
  1. [142]
    Further, amongst the many other reasons proffered, the submissions are distinctly superficial and subjective and importantly, absent of any objective supporting evidence e.g. about impecuniosity, her family responsibilities, her employment etc.
  1. [143]
    While the submission attached to Ms Ryle's affidavit and the letter accompanying her complaint dated 25 July 2018 are not evidence, I am at least prepared to consider them to be satisfied that, when previously required to provide an explanation for the delay, Ms Ryle did not evoke any particular reference to a medical condition that comprehensively impeded her capacity to exercise her rights. Further, she did not identify her medical condition as being the exclusive explanation for the delay. If anything, it appears to have one of numerous matters raised in a somewhat confused and 'scatter-gun' fashion by Ms Ryle such that no particular matter takes any priority at all.
  1. [144]
    Having not previously raised medical causes in any direct or overt way to explain the delay to the ADCQ, and in something of a stark contrast, Ms Ryle now relies exclusively on the evidence of Dr Larder to explain the delay to the Commission.
  1. (ii)
    Evidence of Dr Larder
  1. [145]
    Dr Larder provided two medico-legal reports dated 26 September 2019 ('the first report') and 29 April 2020 ('the second report'). Dr Larder met with Ms Ryle on 20 August 2019 for the purposes of an interview.
  1. [146]
    The first report extensively traverses the entire history of Ms Ryle's complaint. Much of the report appears to be a directly transcribed reproduction of the history provided by Ms Ryle, expressed in the first person by Ms Ryle, and delves comprehensively into her account of each grievance she holds with respect to these matters. The report is largely focused on the causative nature of the cited grievances in respect to Ms Ryle's ongoing mental health issues.
  1. [147]
    It is not controversial that Ms Ryle suffered a mental health condition following the investigation in 2013. It is not controversial that her condition fluctuated in severity for many years and indeed, according to Dr Larder, continued to be present at the time he interviewed her in August 2019. However, what is relevant to my determination is the extent to which Ms Ryle's mental health condition impeded her from filing her reprisal claim once she acquired knowledge of the material facts in July 2015.
  1. [148]
    In this regard, the relevance of most the content of Dr Larder's first report is marginal (at best). The only relevant purpose for calling evidence from Dr Larder (in this part of the proceedings) was to support the explanation for the delay in filing by Ms Ryle. The portion of the report dealing with that issue is confined to five short paragraphs at page 17 (of a 19-page report).
  1. [149]
    Further, it would appear that the opinion of Dr Larder on this key issue was something of an afterthought. The affidavit of Dr Larder filed 18 November 2019 that attaches the first report also attaches the material with which Dr Larder was briefed. Amongst that material is an email from Ms Ryle's solicitor, sent to Dr Larder's rooms on the date of his examination of Ms Ryle and, as it happens, while Dr Larder was already in the process of interviewing Ms Ryle.[37] The email seeks, in addition to an opinion about the causal link between relevant workplace events and Ms Ryle's condition, an opinion on whether her medical condition played any role in her delay in commencing proceedings.
  1. [150]
    There is no evidence suggesting Dr Larder saw the email sent by Ms Ryle's solicitor before or while he was interviewing Ms Ryle. There is no evidence that he took a relevant history from her about her state of mind or her capacity during the relevant period of the delay.
  1. [151]
    In response to this (last minute) request for his opinion on how (if at all) any mental illness or disability suffered by Ms Ryle contributed to the delay in her reviewing the RTI documents and lodging her complaints with the ADCQ, Dr Larder opined:

The mental illness or disability suffered by Ms Ryle could have contributed to a delay in her reviewing RTI documents and in lodging a PID complaint and Impairment complaint in the Anti-Discrimination Commission of Queensland (ADCQ).

This is because this sort of protracted process of many and varied stressors involves so many documents, tasks and decisions on potential courses of action.

This is because this sort of mental health impacts adversely on anxiety management and anxiety causes avoidance and procrastination.

This is because depressed mood creates a negative mind set and slowed mentation.

The combination of these processes can lead to deadlines being missed and a failure to act on processes that have a particular time frame. (Emphasis added)

  1. [152]
    The opinion he offers is entirely speculative. Notably, at the time of expressing his opinion in the first report, Dr Larder had no access to (nor did he seek out) independent contemporaneous medical records from practitioners treating Ms Ryle at or around the key period in time. His opinion dealing with this issue reads as an abstract commentary only.
  1. [153]
    Dr Larder provided a second report dated 29 April 2020. The second report was largely prepared in response to the medico-legal opinion of Dr Sharon Harding (which is discussed below). In short terms, Dr Harding (who did not examine Ms Ryle) provided a report specifically addressing the question of Ms Ryle's apparent capacity to file legal proceedings in the period May 2016 to April 2018. Dr Harding examined contemporaneous medical records for the period and concluded that while there were likely fluctuations in Ms Ryle's condition, there was a window of apparent good health in that key period that suggested she had capacity during the critical time fame.
  1. [154]
    Dr Larder's second report seeks to refute Dr Harding's opinion. He firstly suggests her opinion is less than reliable because Dr Harding did not examine Ms Ryle. Further, on the issue of capacity during the relevant time, Dr Larder responds in greater detail to the proposition.
  1. [155]
    I do not propose to set out in detail his more fulsome opinion in the second report. In summary, it is largely a more detailed (but still speculative) opinion of the type he has already expressed. In essence his opinion was that anxiety and depression can lead to procrastination and delay in attending to difficult or confronting tasks. He opines, without having taken specific history from her, that Ms Ryle was affected in this way.
  1. [156]
    Dr Larder's viva voce evidence at the hearing was more illuminating.  
  1. [157]
    I found Dr Larder's responses to questions about Ms Ryle's capacity to file proceedings (in re-examination and also in his second report) to be unnecessarily verbose and ultimately unconvincing.  My impression was that he was attempting to both qualify and justify his (often) speculative comments about Ms Ryle's capacity during the critical period. My impression was that this verbosity was a feature of either a degree of defensiveness about his opinions, or possibly some bias (conscious or unconscious). Whatever the case may be, his demeanour left me less than satisfied as to his reliability as an independent expert witness.
  1. [158]
    During his evidence at hearing, I posed some questions to him and in his responses, Dr Larder was willing to speculate more broadly about what certain objective facts relating to events contemporaneous with the key period between 2015 and 2018 might indicate about Ms Ryle's capacity.[38] Importantly, Dr Larder conceded that a comparable task such as preparing the relevant documents for admission as a legal practitioner was an indicator that Ms Ryle had sufficient cognitive capacity to file a complaint in the ADCQ.[39]
  1. [159]
    Notably, Dr Larder did not have access to any detailed independent contemporaneous records that could inform him of the state of Ms Ryle's mental health between 2015 and 2018. To the extent he had medical certificates, they did not descend even to a diagnosis. Dr Siddle's report was a report on Ms Ryle's condition as at February 2014.
  1. [160]
    In short, none of the other medical data Dr Larder had available to him could have assisted in giving him any independent insight into Ms Ryle's capacity to file a complaint between 2015 and 2018. 
  1. [161]
    At the time of writing his first report, the only information Dr Larder had on which to base his opinion about Ms Ryle's capacity to file legal proceedings between 2015 and 2018 was information gleaned directly from Ms Ryle herself. The history taken from Ms Ryle, extensive as it was, does not include a history directly or at all about her capacity in the key period.
  1. [162]
    On the whole, I consider that Dr Larder's opinions on the question of Ms Ryle's capacity between 2015 and 2018 were not reliably informed, and it follows, not reliable.
  1. (iii)
    Evidence of Dr Harding
  1. [163]
    Dr Harding prepared a report on 5 March 2020. Dr Harding was asked to comment on Dr Larder's conclusion that Ms Ryle's mental health issues contributed to a delay in filing her complaint with the ADCQ. In doing so, Dr Harding considered Dr Larder's opinion in the context of relevant independent and contemporaneous data that was available to her to assist to inform her conclusions.
  1. [164]
    Dr Harding did not dispute that Ms Ryle had a mental health condition commencing in or about 2013 and which fluctuated in severity over the ensuing years. When considering the key time period between July 2015 and July 2018 Dr Harding (unlike Dr Larder) had regard to all the known medical records of Ms Ryle covering that period.
  1. [165]
    In particular, Dr Harding had access to the clinical records of the general medical practice regularly attended by Ms Ryle. Those records included updates supplied to the general practitioners from Mr Robert McMurray, a clinical psychologist upon whom Ms Ryle attended at times for counselling.  
  1. [166]
    While agreeing with Dr Larder's opinion about the fluctuating nature of Ms Ryle's mental health condition in the period between 2013 and 2018, Dr Harding concluded that the independent contemporaneous medical records indicated that there was a period between 2016 and 2018 during which the objective facts suggested that Ms Ryle was unlikely to have been impaired to the extent that she could not have commenced legal proceedings.
  1. [167]
    Matters that influenced Dr Harding in coming to this view included:[40] 
  • Comments of treating practitioners in clinical notes;
  • The absence of records of treatment for any mental health complaint; and
  • Comments contained in treating practitioners' clinical notes recording what purported to be Ms Ryle's own statements about her well-being, including numerous activities associated with her career.
  1. [168]
    Dr Harding's viva voce evidence was largely consistent with the content of her report. There was a proposition put to her in cross examination to the effect that an absence of records does not equate to an absence of a mental health condition. Dr Harding ultimately agreed with the proposition in the abstract and agreed with Dr Larder's (speculative) view that Ms Ryle's mental health condition could have contributed to the delay in making the complaint to the ADCQ. All of Dr Harding's evidence in this regard demonstrated to me a firm impartiality by her willingness to make reasonable concessions.
  1. [169]
    But when questioned more specifically, Dr Harding persisted with her view that the evidence she had reviewed was indicative of a period of improved mental health and would not agree (beyond it being a possibility) that Ms Ryle's stressors remain 'powerful maintaining factors for her mental health issues'.[41]
  1. (iv)
    Conclusion - medical evidence
  1. [170]
    Both Dr Harding and Dr Larder are equally well qualified as experts. Neither of them had the advantage of consulting with Ms Ryle contemporaneously during the relevant period between July 2015 and July 2018. In order to offer an opinion about Ms Ryle's capacity, each was uniquely both at an advantage and disadvantage.
  1. [171]
    Dr Larder had the advantage of consultation with Ms Ryle, but he did not have regard to the independent contemporaneous clinical notes etc. Dr Harding on the other hand did not consult with Ms Ryle but did have the advantage of being able to forensically examine the complete clinical records of Ms Ryle's general practitioners which contained contemporaneous notes of conversations between her and her doctors.
  1. [172]
    On the specific question relevant to whether Ms Ryle had impaired capacity, I consider that thorough consideration of independent contemporaneous medical records would likely be a reliable source of very relevant information. The absence of consideration of this data by Dr Larder undermines the reliability of his opinion in my view.
  1. [173]
    Certainly, Dr Larder had the advantage of taking a history from Ms Ryle directly. But there is no evidence to suggest he took a relevant history in the form of a personal account from Ms Ryle as to why she delayed making her complaint to the ADCQ. Further, any recollections offered in a history by Ms Ryle ought to have been treated by Dr Larder with an appropriate degree of clinical caution. It is common practice for psychiatrists conducting a medico-legal examination to 'reality check' a history provided by their subject against any available independent data or facts. I would have expected this would have been especially important where the patient has suffered a mental health condition over an extended period of time.
  1. [174]
    Dr Larder seems to have been content (in his first report) to simply cut and paste large portions of the transcript of the interview with Ms Ryle into a report, and then accept every part of her account without moderating it in anyway e.g. by testing some of her assertions, probing her veracity on certain matters, or in this case seeking out medical records.
  1. [175]
    In fairness to Dr Larder, his first report does contain a qualifying statement indicating that it may be subject to change if further information came to light. Unfortunately, he then declines to give any weight to the independent contemporaneous medical records once he is made aware of them,[42] instead concluding that an absence of evidence of treatment for mental health issues does lead to a conclusion that a person did not have mental health issues at a given time.
  1. [176]
    While Dr Larder's second report appears to extensively consider the question of Ms Ryle's capacity and its contribution to the delay, his conclusions are troubling for two reasons.
  1. [177]
    Firstly, Dr Larder opines (at page 8 of the second report) that impecuniosity preventing medical treatment does not mean a person does not have a mental health condition. His 'opinion' in this regard has quite plainly been 'spoon fed' to him in the instructing letter from Ms Ryle's solicitor.[43]
  1. [178]
    At item (viii) in the briefing email, the solicitor purports to seek an answer from Dr Larder to respond to a criticism by Dr Harding in the following terms:

In your opinion, if a person is unable to access or afford medical treatment or psychological therapy does it necessarily follow that they are not suffering from a significant mental disorder? We note that at page 18 of Ms Ryle's Compliant dated 25 July 2018 she states as follows: “ADCQ complaint dated 25 July 2018 @ page 18 (g): “My poor psychological health has persisted because I was unable to afford the intensity or duration of counselling which was required in my circumstances. I am a sole parent to my child. As such, I had to maintain my focus on working full-time while dealing with extended travel time in performing that work. The work environment continued to create challenges to my mental and cultural safety.”

  1. [179]
    If that question had been asked in the same way in open court, it would have or ought to have been met with robust objection. The question is no less offensive to the rules of evidence simply because it was asked out of court in correspondence. It is an appallingly leading question that entirely undermines the value of any response from Dr Larder.
  1. [180]
    The question, and the response it elicits, are a particularly lame attempt to cover a glaring flaw in the foundations of Dr Larder's opinion. Dr Larder's steadfast reluctance to consider objective and independent data that tends to contradict his earlier (speculative) opinion does not reflect well on his reliability or his independence.    
  1. [181]
    Secondly, neither the solicitor asking the question nor Dr Larder appear to appreciate that the presence or otherwise of a mental health condition is not the critical factor. The critical factor is the absence or presence of a mental health condition that robbed Ms Ryle of her capacity to exercise her legal rights.
  1. [182]
    Ms Ryle was well and truly on notice of the opinion of Dr Harding. Ms Ryle was well and truly on notice that her absence of medical treatment during the key period was the basis for the opinion that she was sufficiently well that she could have filed her compliant. Ms Ryle has filed no evidence of any weight or value to support her assertions that she was unable to afford appropriate medical treatment during that period or to explain why she continued to see her general practitioners during that period, but never sought their assistance with her mental health issues as she had done previously.
  1. [183]
    Further, the absence of the medical treatment for her mental health condition during the period 2015 to 2018 is not the only evidence that contradicts Ms Ryle's arguments. Ms Ryle's request for a clearance letter from her general practitioner in May 2015, her preparation of her application for admission as a legal practitioner, and her various career and personal achievements in the years 2015 to 2018 are powerful indicators that she was functioning well from a medical perspective.
  1. [184]
    Both Dr Larder and Dr Harding are observers of this matter after the fact. Both were tasked with reconstructing events in order to give their opinions, and both were doing so in less than optimum circumstances. I prefer the broader and more holistic approach of Dr Harding in taking into account not only the detailed written history (in the form of Ms Ryle's correspondence to the ADCQ) but also her examination of independent medical data and other contemporaneous events occurring in Ms Ryle's life during the relevant period.
  1. (v)
    Other matters relevant to Ms Ryle's capacity
  1. [185]
    I am satisfied that there is no reliable medical evidence that Ms Ryle was impeded by her mental health condition to the extent it would have prevented her from filing a complaint in the period between July 2015 and July 2016. While the evidence of Dr Harding comprehensively satisfies me that Ms Ryle did have sufficient capacity at some point between July 2015 and July 2018, there are other matters that alternatively or additionally support that conclusion.
  1. [186]
    Firstly, I consider that Ms Ryle's attendance on her general practitioner in May 2015 (for the purposes of obtaining correspondence confirming her return to full health) is an independent and contemporaneous record that Ms Ryle was indeed in good health. I note that her general practitioner records her as confirming this. Ms Ryle did not challenge this fact. I have no doubt the general practitioner would not have recorded these statements in the event they regarded them to be untrue.
  1. [187]
    Secondly, it is not controversial that Ms Ryle applied for an obtained admission as a legal practitioner sometime in July 2015. An application for admission is a multi-stepped process involving not insignificant cognitive organisation and effort.
  1. [188]
    Further, it appears uncontroversial that Ms Ryle has been very active professionally since 2015, including serving for a number years as President of the Indigenous Lawyers Association and maintaining employment for much of the relevant period. While it is entirely likely that Ms Ryle continued to experience fluctuations in her mental health while simultaneously pursuing and developing her career, her career activities are inconsistent with the suggestion that she was incapable of organising herself to commence proceedings in the ADCQ between 2015 and 2018.
  1. [189]
    Further again, I note as aside that in considering her opinion Dr Harding had access to the medical records of the Ochre Health Medical Centre,[44] the medical practice upon which Ms Ryle regularly attended. The records were admitted by consent following some controversy around the timing of their provision to Ms Ryle's lawyers. I note however, that they are documents that would ordinarily have been in the control or possession of Ms Ryle, and that she was on notice of their significance when the affidavit of Dr Harding was filed.
  1. [190]
    The medical records became Exhibit 2 in the proceedings. They included a document titled 'Attending Physician's Mental Health Questionnaire'. Relevantly, this document records that Ms Ryle did not require treatment for her mental health condition after 8 May 2015. It also purports to record that, as at 26 July 2016, Ms Ryle's condition did not impair her capacity for employment.
  1. [191]
    I am conscious of the controversy around Exhibit 2. I do not consider that Dr Harding's reliance on it (amongst many other records) in any way undermines her opinion given she was expressing a view of what the records indicate (rather than prove). But beyond that I do not intend to place significant weight on it as a stand-alone exhibit given the author (Dr Eggins) did not give evidence.  
  1. [192]
    That said, while I note that the respondents did not disclose it in a timely manner, Ms Ryle would have been aware that the medical centre records were the foundation for Dr Harding's opinion from on or about 30 March 2020 when Dr Harding's affidavit was filed. It would seem that Ms Ryle's lawyers were more concerned to secure responses from Dr Larder to self-serving leading questions than they were to access the source materials relied on by Dr Harding which would have been a relatively simple task.
  1. [193]
    While I do not go so far as to draw an adverse inference, it is curious that Ms Ryle did not at any time seek to call any of the medical experts who treated her during the relevant period. All of those numerous medical practitioners would have been better placed to comment on the state of Ms Ryle's mental health during the relevant period than either of the experts called.
  1. [194]
    It is unfortunate that neither party handled the potentially insightful evidence in Exhibit 2 with greater priority. Had it been put before me in a properly admissible manner it may well have diminished a significant amount of controversy in this matter. The medical opinion of the Dr Eggins that was the basis of her completing the form dated 26 July 2016 could have comprehensively dealt with the question of Ms Ryle's capacity from May 2015 until July 2016 i.e. the entire period in which Ms Ryle had the material facts relevant to bringing her complaint that was within the nominal time period of 1 year. Dr Eggins' evidence would have been of great interest, but she was not called. 
  1. [195]
    Looking beyond July 2016 i.e. the point where the 1 year time limit would likely have expired, there is a further compelling fact that suggests that Ms Ryle was more than capable of understanding her legal rights and taking action in relation to them. While not in evidence (as a consequence of my ruling above) there is no dispute as to the fact that in September 2017 Ms Ryle engaged her current solicitors to write on her behalf to ATSILS.
  1. [196]
    I must assume that Ms Ryle's solicitors were satisfied of her capacity to provide instructions for the correspondence they prepared on her behalf in September 2017. To have acted for her in any other circumstances would have been a serious breach of their professional duty. On the basis of that assumption, it is the height of contradiction for Ms Ryle to now argue that she was not sufficiently lucid and organised in her thoughts at any time between July 2015 and July 2018 when, in September 2017, she was clearly able to engage and instruct her solicitors to write correspondence asserting legal rights.
  1. [197]
    While a complaint made in September 2017 might well have met with similar objections for lateness, it would still have been a full 10 months sooner than the complaint filed in July 2018.
  1. [198]
    Further, it is not relevant that the letter sent on her behalf may not have been about the precise subject matter of the alleged reprisal. What is relevant is that Ms Ryle clearly had capacity to consider and assert a legal right, obtain legal advice, and instruct solicitors to write on her behalf. All of this was at a time when she was well aware of the key elements of her reprisal complaint and had been for over two years.
  1. [199]
    This conduct by Ms Ryle is entirely inconsistent with the submission that she lacked capacity throughout that period.
  1. [200]
    As a further aside, I note that Ms Ryle does not seek to rely on representative error as an explanation for the delay in filing her complaint with the ADCQ. There is no evidence before me as to the precise date that Ms Ryle first engaged her legal representatives though it may be as early as 2014.[45] Further, there is no evidence as to whether the relationship between Ms Ryle and her legal representatives has been consistent or whether there was a series of separate engagements.
  1. [201]
    In any event, it is uncontroversial that Ms Ryle had her current legal representatives acting for her in September 2017. The submissions filed by Ms Ryle in relation to the LPP purportedly attaching to the correspondence describe it as being in the nature of 'communications between parties which are genuinely aimed at settlement as an alternative to legal action'.[46]
  1. [202]
    I accept that it may well be that the correspondence deals largely with an ancillary issue however, there is no doubt that Ms Ryle had (two years earlier) already drawn the connection between the 2013 investigation and the actions of Mr Pitt. On these facts Ms Ryle's decision to delay a further ten months before filing her complaint in the ADCQ was either a deliberate choice on her part or an oversight. The extent to which Ms Ryle provided instruction about these matters to her solicitors is unknown.
  1. [203]
    No evidence has been offered to explain why Ms Ryle or her lawyers did not seek to address the reprisal complaint at that time, so the impact of representative error as an explanation for the delay need not be considered. 
  1. (vi)
    Conclusion on 'explanation for the delay'
  1. [204]
    After becoming aware of the actions of Mr Pitt in July 2015, Ms Ryle could have commenced proceeding in the form of a complaint to the ADCQ within the prescribed time period of 1 year. She failed to do so and further, she failed to take action for another two years after the prescribed period had passed.
  1. [205]
    This delay is particularly perplexing when one considers that Ms Ryle is a legal practitioner and ought to have been conscious of time limits. I would expect that even a recently admitted legal practitioner would be very familiar with the concept of statutory limitations. Further, Ms Ryle had access to lawyers who acted for her and advised her in 2013, 2014 and 2017.[47]
  1. [206]
    Adding to this, when now called upon to explain the delay, Ms Ryle has not offered any direct evidence to explain why it took her three years to make her complaint to the ADCQ. Her affidavit offers nothing. The attachments are, as I have already concluded, not evidence of their contents.
  1. [207]
    To the extent I am prepared to put such technicalities aside, the submissions made by Ms Ryle to the ADCQ explaining the delay in filing do not directly attribute the delay to a mental health condition.[48] Further, to the extent that those submissions make reference to her mental health, it is blended within a potpourri of multiple other reasons that are all equally extensively (but superficially) set out, and all unsupported by objective evidence.   
  1. [208]
    Further, as I have already observed, it is not enough for Ms Ryle to say she had mental health issues. Many people experiencing mental health issues continue to function quite adequately and attend to their affairs. According to Counsel representing her, Ms Ryle contends that she was so affected that she was unable (at any time in that three-year period) to organise herself to lodge her complaint with the ADCQ. There is no reliable evidence to support this. On the contrary, the independent contemporaneous medical records suggest that in fact during the key period between 2015 and 2018, Ms Ryle appeared to seek no professional assistance for mental health issues following a request for a letter from her GP in May 2015 for a letter confirming her good state of mental health.
  1. [209]
    While theories about Ms Ryle's impecuniosity abound, there is no admissible or compelling evidence from Ms Ryle before me to support a suggestion that this explains her lack of consultation with health practitioners during the key period. Even if there was such evidence, it would still need to establish her mental health was so disabling that she could not act to assert her legal rights. There is nothing before me in any form, admissible or otherwise, that supports this proposition. 
  1. [210]
    Further, in yet another glaring contradiction in what purports to be an explanation for the delay, it would seem that Ms Ryle's mental health began to decline in early to mid-2018 which, ironically, was when she organised herself to file the complaint with the ADCQ.
  2. [211]
    In short, there is no direct explanation offered by Ms Ryle. Instead, I am urged to have regard to secondary documents and a medical opinion that has its genesis largely in a subjective history of reconstructed events, and which does not include a direct history on the singularly critical issue in this matter. To the extent that I am prepared to put aside technicalities and consider the contents of documents that do not have the weight of sworn evidence as the explanation for delay, I am roundly unimpressed by them.
  1. [212]
    Counsel for Ms Ryle appeared to consider that the 'explanation for delay' was but one of a number of discretionary considerations.[49] Perhaps anticipating my view of the explanation, Counsel appeared to suggest other considerations might still carry the application.
  1. [213]
    On these facts, where the delay is two years, and in relation to events that occurred six years earlier, I would expect someone in Ms Ryle's position to present something far more compelling than assertions in secondary documents, unsupported by independent objective evidence, and a medical opinion with inadequate foundations. In this matter, the explanation (or lack of it) is of critical importance. In this matter, the evidence purporting to support the explanation is inadequate and unreliable.
  1. [214]
    While the explanation is indeed only one of the considerations, each informs the other. A significant delay coupled with an inadequate explanation will invariably set the tone for the remaining considerations.

Prejudice to each party

  1. [215]
    Regardless of my determination on this application, one party will inevitably be prejudiced by the consequences.
  1. [216]
    In circumstances where I was to determine to decline to hear Ms Ryle's substantive application, she would be denied the opportunity to seek redress against those that she alleges wronged her in a most egregious manner.
  1. [217]
    It is not disputed that Ms Ryle was the subject of scandalous assertions. This is compounded by the fact that the assertions were made in open court by a legal practitioner to a Magistrate, and all without Ms Ryle's knowledge or ability to defend herself. These facts alone are sufficient to evoke significant sympathy for Ms Ryle's plight. But then her experience worsens.
  1. [218]
    Following the assertions in open court, it would appear that the details were somehow shared with Ms Ryle's colleagues and other associates within the legal and quasi-legal community in which she worked. The details also seeped into Ms Ryle's cultural community which no doubt caused great shame and embarrassment.
  2. [219]
    In the circumstances where it has been established that the assertions were wholly untrue, Ms Ryle is entitled to have felt significantly aggrieved and distressed. It is trite to observe that Ms Ryle will experience substantial prejudice if her allegations of reprisal cannot be heard and determined by the Commission.
  1. [220]
    However, the extent to which I appreciate that Ms Ryle is prejudiced is very much moderated by the fact that, notwithstanding her understandable outrage, and notwithstanding she had the benefit of legal advice and representation for at least some portion of the relevant period, she took no steps to formally action her complaint upon acquiring the material facts making up the elements of reprisal for another three years. While her fluctuating mental health might explain her hesitancy to some extent, I cannot accept that her outrage and distress had abated over the years and would not have led to her taking action sooner had she so chosen.
  1. [221]
    The respondents will also suffer prejudice in the event that the complaint is allowed to proceed. It is more than pedestrian to observe that the respondents are entitled to expect the certainty afforded by firmly enforced statutory limits. At the time Ms Ryle first filed her complaint in July 2018, the relevant events had occurred almost six years earlier. Mr Pitt had long since ceased employment with the first respondent. The respondents will inevitably be confronted with the difficult task of forensic reconstruction of relevant facts and documentary evidence in order to meet the complaint made by Ms Ryle.
  1. [222]
    Given that it is now approximately ten years since the assertions were first uttered in the Magistrates Court, the task of gathering testimony and evidence as to how that information was disseminated to Mr Pitt, and his motives for sharing it in the manner he did, will not be an easy task. It is a task likely to be attended by a not insubstantial risk of errors occurring, which may in turn unfairly impact the respondent's case.
  1. [223]
    Overall, I regard each party will experience significant prejudice and there is no outcome to this application that I can contemplate that would alleviate it for the party adversely affected by my decision. I further consider that the prejudice to each party is equally balanced, though the significant delay and unsatisfactory explanation for the delay offered by Ms Ryle intuitively evokes my greater sympathy for the respondents. In Ms Ryle's case, much of the prejudice she is likely to suffer is a consequence of her own failure to act sooner.

Merit

  1. [224]
    Ms Ryle's complaint is singular and relatively simple. There is no dispute that Ms Ryle lodged a PID in relation to Mr Pitt in 2011 and that he was counselled as a consequence of an investigation. Further, it does not appear to be disputed that Mr Pitt shared information with a supervisor in or about October 2012. That information included the details of the assertions made about Ms Ryle. The information then resulted in Ms Ryle being investigated and being required to respond to allegations.
  2. [225]
    Ms Ryle contends that Mr Pitt shared the information with a supervisor because Ms Ryle had made a PID against him in 2011 in contravention of s 40 of the PID Act. Ms Ryle bears the onus of proving the alleged causal connection.
  1. [226]
    On a preliminary consideration of the facts, it is apparent that two of the elements of reprisal are present i.e. a PID and a 'detriment' to Ms Ryle, though the latter of these may be the subject of further argument if a substantive hearing were to proceed.
  1. [227]
    What is not readily apparent is the reason(s) for Mr Pitt sharing that information with his supervisor. The merits (or otherwise) of Ms Ryle's complaint turn entirely on this missing element.
  1. [228]
    At the time Mr Pitt shared the assertions with his supervisor, they had not been investigated. The assertions (while subsequently disproven) included conduct that was potentially criminal in nature and also involving preferential treatment of a person who was a client of the respondent's service that Ms Ryle worked for at the time. If true, the assertions not only carried serious criminal consequences, but they were likely misconduct within the context of her employment. 
  1. [229]
    While one theory might be that Mr Pitt sought to inflict detriment upon Ms Ryle in reprisal for the PID she made against him, there is no evidence before me to suggest that Mr Pitt knew that Ms Ryle had made the PID in 2011. Further, given the objective seriousness of the assertions, it is equally possible that Mr Pitt was motivated by legitimate concerns about Ms Ryle's conduct and its potential impact on the service employing her.
  1. [230]
    In the absence of evidence from Mr Pitt, I am unable to evaluate merit with confidence. I can only speculate that Ms Ryle's arguments might prevail, or they might not. In the circumstances, I am unable to apply considerations of merit in any useful way to assist with my discretion to allow the claim to proceed out of time.

Conclusion 

  1. [231]
    Ms Ryle delayed bringing her complaint of reprisal until three years after the date upon which she acquired the relevant knowledge necessary to make out the elements of the offending conduct. I am satisfied that Ms Ryle had a reasonable excuse for the delay between 2012 (date of the alleged reprisal) and July 2015 (date Ms Ryle acquired full knowledge of the role of Mr Pitt in the investigation). However, beyond July 2015 there is no satisfactory explanation.
  1. [232]
    While I accept that Ms Ryle was afflicted with a mental health condition, the evidence suggests that its severity fluctuated. Further, I do not accept the mere presence of a mental health condition is sufficient to explain the delay. As elucidated by Counsel for Ms Ryle, the submission was that the mental health condition was so pervasive that it robbed Ms Ryle of sufficient capacity to file her complaint sooner. There is no evidence that would suggest Ms Ryle was so thoroughly or consistently incapacitated during the relevant period in time.
  1. [233]
    Further, even if Counsel's characterisation of the argument puts the emphasis on disabling mental health too high, there is no evidence that even the fluctuating condition was sufficient to impair Ms Ryle during the entirety of the relevant three-year period.    
  1. [234]
    There are also more than a few indicators that Ms Ryle was in fact well or at least capable of high levels of cognitive function between July 2015 and July 2018. She applied for admission as a legal practitioner. She was gainfully employed. She held a senior role with an Indigenous organisation. She engaged and instructed lawyers to act on her behalf and made representations as a precursor to litigation.
  1. [235]
    All the while that Ms Ryle was functioning in this way, there is no evidence of attendances or treatment for her mental health complaint. No compelling or direct evidence has been presented to support the submission that Ms Ryle was impecunious during this period to the extent she could not afford treatment.
  1. [236]
    In the absence of a compelling explanation for the significant delay, the length of the delay and the prejudice likely to be suffered by the respondents leads me to conclude that, on the balance of fairness, it would be unreasonable to allow the complaint to proceed.

Order

  1. [237]
    I make the following orders:
  1. The application for suppression filed on 16 June 2020 by the Complainant is refused;
  2. The application to dismiss proceedings filed on 23 August 2019 by the First Respondent is granted;
  3. Matter number AD/2019/69 is dismissed; and
  4. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), I direct that the contents of the file held in the QIRC registry for matter number AD/2019/69 be withheld from release or search. 

Footnotes

[1] The complaint was partially rejected by the ADCQ and the rejection was the subject of an unsuccessful application for judicial review. See Ryle v Venables & Ors [2021] QSC 60.

[2] See for example Queensland Law Society, Australian Solicitors Conduct Rules 2012 (at 1 June 2012), r 17.1.

[3] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-02.

[4] Affidavit of Ms Marincowitz filed 23 August 2019, exhibit MM-22.

[5] Form 4 - Application in existing proceedings filed 16 June 2020, annexure A at [1.1]-[1.2].

[6] Industrial Relations Act 2016 (Qld) sch 5.

[7] Ibid sch 5.

[8] Complainant's submissions filed on 15 July 2020, at [7].

[9] Industrial Relations Act 2016 (Qld) s 429.

[10] Re: Ipswich City Council [2020] QIRC 194, 6-9 [17]-[30].

[11] In reliance on the Human Rights Act 2019 (Qld) s 25.

[12] [2021] QIRC 223, 11-13 [46]-[53].

[13] Paxton v Children’s Health Queensland Hospital and Health Service (No 2) [2020] QIRC 023, 7-8 [23]-[26].

[14] Affidavit of Ms Marincowitz filed 27 September 2019, exhibit MM-1.

[15] Youth Justice Act 1992 (Qld) s 301, sch 4 definition of 'identifying information'.

[16] Affidavit of Ms Marincowitz filed 23 August 2019, exhibit MM-22.

[17] Exhibit 7.

[18] See for example Queensland Law Society, Australian Solicitors Conduct Rules 2012 (at 1 June 2012), r 32.

[19] Complainant's submissions filed 25 May 2020, paragraphs [2]-[4].

[20] (1996) 186 CLR 541, 19.

[21] [2003] QADT 18.

[22] [2006] QADT 41, [32].

[23] Exhibit 5.

[24] Exhibits 6 and 7.

[25] Affidavit of Ms Marincowitz filed 23 August 2019, exhibit MM-13.

[26] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-07.

[27] See for example Limitation of Action Act 1974 (Qld) ss 31, 32.

[28] Ms Ryle called Dr Larder to give evidence to the effect that Ms Ryle was impaired and unable to organise herself to file proceedings in a timely manner.

[29] T1-72, LL14-30.

[30] Complainant's submissions filed 17 September 2019, [8]-[9].

[31] T1-76 to T1-77 – reference is to letter from Ms Ryle to the ADCQ dated 25 July 2018.

[32] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-02.

[33] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-02 at page 24.

[34] Ibid.

[35] Ibid.

[36] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-02 at page 24, item (m).

[37] Affidavit of Dr Larder filed 18 November 2019, exhibit GL-2.

[38] T1-53 – T1-55.

[39] T1-55, LL20-31.

[40] T1-19, L40; T1-20, L45; T1-21, LL5-25.

[41] T 1-31 LL 35-47; T1-32, LL1-10.

[42] Report of Dr Larder dated 29 April 2020, page 3, line 40.

[43] Affidavit of Dr Larder filed 14 May 2020, exhibit GL-05.

[44] Exhibit 2.

[45] Affidavit of Ms Marincowitz filed 23 August 2018, exhibit MM-18.

[46] Submissions of Ms Ryle filed 25 May 2020, paragraphs [4]-[5].

[47] Submissions of Ms Ryle filed 17 September 2019 at [50], and Affidavit of Ms Marincowitz filed 23 August 2018, exhibit MM-18.

[48] Affidavit of Ms Ryle filed 1 November 2019, exhibit LR-02.

[49] T1-74, LL34-35.

Close

Editorial Notes

  • Published Case Name:

    Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt

  • Shortened Case Name:

    Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt

  • MNC:

    [2021] QIRC 307

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    07 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223
2 citations
Jump To
Cite 1 - [2021] QIRC 223
Cite 2 - [2021] QIRC 223
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Pagura-Inglis v Minister for Education [2003] QADT 18
2 citations
Jump To
Cite 1 - [2003] QADT 18
Cite 2 - [2003] QADT 18
Paxton v Children's Health Queensland, Hospital and Health Service (No 2) [2020] QIRC 23
2 citations
Jump To
Cite 1 - [2020] QIRC 23
Cite 2 - [2020] QIRC 23
Re: Ipswich City Council [2020] QIRC 194
2 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Ryle v Venables(2021) 7 QR 615; [2021] QSC 60
2 citations
Jump To
Cite 1 - [2021] QSC 60
Cite 2 - [2021] QSC 60
Wong v Medical Board of Queensland & Ors [2006] QADT 41
2 citations
Jump To
Cite 1 - [2006] QADT 41
Cite 2 - [2006] QADT 41

Cases Citing

Case NameFull CitationFrequency
Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 1202 citations
Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 3322 citations
Stewart v State of Queensland (Queensland Health) [2024] QIRC 1032 citations
Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 2942 citations
1

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