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  4. Huyghe v State of Queensland (Mackay Hospital and Health Service) - [2022] QIRC 14

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Huyghe v State of Queensland (Mackay Hospital and Health Service)[2022] QIRC 14

Huyghe v State of Queensland (Mackay Hospital and Health Service)[2022] QIRC 14

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 014

PARTIES:

Huyghe, Pieter

(Applicant)

v

State of Queensland (Mackay Hospital and Health Service)

(First Respondent)

AND

Bartlett, Daniel

(Second Respondent)

AND

Reasbeck, Philip

(Third Respondent)

CASE NO:

GP/2020/11

PROCEEDING:

Application in existing proceedings – Disclosure

DELIVERED ON:

25 January 2022

HEARING DATE:

25 May 2021

Final submissions received 4 June 2021

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

1.The respondents make full disclosure of the following documents to the applicant:

(a)de-identified copies of patient records, anaesthetic records and scout nurse reports for the procedure undertaken on 25 October 2019;

(b)copies of all theatre lists for 25 October 2019 for each theatre at the Mackay Base Hospital wherein the applicant conducted work;

(c)to the extent they were before the decision-maker at the time it was determined the applicant's bullying complaint would be dismissed:

(i)copies of all emails and other communications between all Mackay Base Hospital employees about a 2 September 2019 meeting between the applicant, the second respondent and Suresh Singaravelu between 2 September 2019 to 6 November 2020; and

(ii)copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Mackay Base Hospital employees about the 2 September 2019 meeting between 2 September 2019 to 6 November 2020;

(d)to the extent they have not already been disclosed, copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees about the applicants PADs between 1 July 2018 and 1 July 2020; and

(e)copies of all emails and other communications between all Hospital employees about the applicant's PADs between 1July 2018 and 1 July 2020.

2.With respect to Orders 1(d) and 1(e), the term 'all Hospital employees' means:

(a)Alix Thompson, Acting Operations Director;

(b)Alex Cottle, International Medical Graduate Supervisor;

(c)Daniel Bartlett, Clinical Director;

(d)Suresh Singaravelu, Senior Consultant;

(e)Professor Reasbeck, Chief Medical Officer;

(f)Rod Francisco, Executive Director of People;

(g)Ivan Franettovich, Director of Operations; and

(h)Jo Whitehead, former Chief Executive.

Or those people who subsequently held the above roles within the period 1 July 2018 to 2 July 2020.

3.The respondents make disclosure in accordance with Orders 1 and 2 by 15February 2022.

4.The application is otherwise dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – PRACTICE AND PROCEDURE – application for disclosure – where disclosure is opposed on the basis of relevance – consideration of relevance – application granted in part

LEGISLATION AND INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 285

Industrial Relations (Tribunal Rules) 2011 (Qld) rr 41, 46

Industrial Relations (Tribunal) Amendment Rule 2021 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) ch 7 pt 2

CASES:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

CFMEU v BHP Coal [2010] FCA 590

CFMEU v BHP Coal Pty Ltd (No 2) (2011) 212 IR 313

Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

David's Distribution Pty Ltd v NUW (1999) 91 FCR 463

Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5

QNU v Sundale Garden Village, Nambour [2004] QIRComm 212

Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266

Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102

Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335

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

APPEARANCES:

Mr C Massy of Counsel instructed by Cooper Grace Ward for the Applicant

Ms C Brattey of Corrs Chambers Westgarth for the First, Second and Third Respondents

Reasons for Decision

  1. [1]
    This is an application in existing proceedings brought by the substantive Applicant, Dr Pieter Huyghe ('the Applicant'), in respect of disclosure.
  2. [2]
    It seeks disclosure of some thirteen categories of documents in accordance with a list notified by the Applicant in late 2020, as well as a further ten categories of documents arising from the amended list notified by the Respondents on 23 February 2021.

Background

  1. [3]
    The Applicant has been employed by the First Respondent, the State of Queensland, through the Mackay Hospital and Health Service ('the MHHS') as a Senior Medical Officer at the Mackay Base Hospital ('the Hospital') since August 2017. Dr Daniel Bartlett ('the Second Respondent') and Professor Philip Reasbeck ('the Third Respondent'), are also employed by the MHHS as, respectively, the Clinical Director of the Department of Anaesthetics and the Executive Directive Medical Services/Chief Medical Officer.
  2. [4]
    On 16 June 2020, the Applicant filed an application seeking a decision the Respondents took various adverse actions against him between 14 November 2019 and 13 August 2020, for proscribed reasons, namely:
  1. (a)
    the implementation of an action plan on 14 November 2019 ('the Action Plan');
  2. (b)
    failing to comply with policies, directives and codes of management in respect of a bullying complaint lodged by the Applicant;
  3. (c)
    issuing a warning to the Applicant;
  4. (d)
    treating the Applicant's involvement in a medication error as a disciplinary matter; and
  5. (e)
    suspending the Applicant from duties.
  1. [5]
    Section 285 of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides:

285Protection

(1) A person must not take adverse action against another person—

(a) because the other person—

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note—

This subsection is a civil penalty provision.

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person's benefit or for the benefit of a class of persons to which the second person belongs.

Note—

This subsection is a civil penalty provision.

  1. [6]
    To succeed in the substantive application, the Applicant must establish that he exercised a workplace right, and the Respondents took adverse action against him. The Respondents must then prove they did not take the action for a proscribed reason.[1] The reason for taking the adverse action is a question of fact which must be answered in light of all the facts established in the proceedings.[2]
  2. [7]
    This consideration is obviously more complicated where multiple individuals are alleged to have either perpetrated or contributed to the adverse action.

Application for Disclosure

  1. [8]
    On 24 September 2020, I issued a Directions Order which required the parties to, among other things, undertake disclosure. Those directions relevantly provided:
  1. That the Applicant identify to the Respondents by 4.00pm on 6 November 2020, the categories of documents he is seeking as well as identifying how they are relevant to a matter in issue in the proceedings.
  2. That the Applicant supply to the Respondents by 4.00pm on 13 November 2020, a list of documents in his possession or under his control relevant to a matter in issue in the proceedings.
  3. That the Respondents supply to the Applicant by 4.00pm on 13 November 2020, a list of documents (in accordance with the categories of documents identified by the Applicant) in their possession or under their control relevant to a matter in issue in the proceedings.
  4. That the Applicant supply to the Respondents by 4.00pm on 27 November 2020, copies of those documents contained in the list disclosed which the Respondents request and to which the Applicant has no legal claim to privilege.
  5. That the Respondents supply to the Applicant by 4.00pm on 27 November 2020, copies of those documents contained in the list disclosed which the Applicant requests and to which the Respondents have no legal claim to privilege.
  1. [9]
    The Applicant delivered his categories of disclosure in accordance with Direction 4 above. No application was made by the Respondents challenging those categories.
  2. [10]
    The Directions were vacated on 30 November 2020 to facilitate a further conference before another member of this Commission. Consequently, the parties did not exchange disclosure on 27 November 2020 in accordance with Directions 7 and 8 above.
  3. [11]
    The Directions were reinstated by a Further Directions Order issued on 2 February 2021 which relevantly provided:
  1. That the parties make disclosure in accordance with Orders 4 to 6 of the Directions Order of 24 September 2020, save for any document for which there is a legal claim of privilege, by 4.00pm on Tuesday, 23 February 2021.
  2. Any application in respect of the adequacy of any parties' disclosure be filed by 4.00pm on Tuesday, 9 March 2021.
  1. [12]
    On 23 February 2021, the Respondents' representatives wrote to those of the Applicant providing an amended list of documents considered relevant to the proceedings or a matter in issue. In the same correspondence, the Respondents refused to provide several categories of documents which had been requested, setting out the reasons for the refusal.
  2. [13]
    Consequently, the Applicant filed the present application. It seeks disclosure of some thirteen categories of documents in accordance with the list notified by the Applicant on 6 November 2020, as well as a further ten categories of documents arising from the amended list notified by the Respondents on 23 February 2021.

Relevant Principles

  1. [14]
    The Industrial Relations (Tribunal) Rules 2011 (Qld) ('the Rules') provide that the Commission may make a directions order requiring, among other things, the disclosure of documents.[3]
  2. [15]
    At the time the orders were made, r 46 of the Rules provided:

46Duty of disclosure

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

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

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

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

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

  1. [16]
    However, on 1 March 2021, r 46(1)(a) was amended by the Industrial Relations (Tribunal) Amendment Rule 2021 (Qld) to insert the word 'directly'. That is, it now provides that a party must make disclosure of a document if that document is 'directly relevant' to the proceedings or a matter in issue.
  2. [17]
    The principles in respect of the earlier r 46 are well established. In Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4)[4] Fisher IC stated:[5]

The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:

•  A decision of the Commission to order disclosure is a quintessential exercise of discretion.

• To be discoverable a document must relate to the question or issues to be decided by the proceedings.

•  A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.

• A party will not be required to produce documents where to do so would be oppressive.

• A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.

• Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.

  1. [18]
    The 'train of enquiry' test referred to above stems from the decision of Bret LJ in Compagnie Financiere du Pacifique v Peruvian Guano Co,[6] where his Lordship stated:[7]

It seems to me that every document relates to the matters in question in the action, which would not only be evidence on any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or damage the case of his adversary.

  1. [19]
    However, the practical effect of the amendment to r 46 is that the scope of the obligation of disclosure has been narrowed, and the train of enquiry test no longer applies. Instead, parties need only make disclosure of documents that are directly relevant to an issue in the proceedings.
  2. [20]
    The principles relevant to determining whether a document is 'directly relevant' are usefully set out by Collier J in CFMEU v BHP Coal Pty Ltd (No 2).[8] Relevantly:
  1. (a)
    whether a document is directly relevant to an issue in the proceeding is a question of fact in the circumstances of the case;[9]
  1. (b)
    'directly' should not be understood to mean that which constitutes direct evidence, to the exclusion of circumstantial evidence.[10] Rather, 'directly relevant' means something which tends to prove or disprove the allegation in issue;[11] and
  2. (c)
    a document will not be 'directly relevant' if, rather than tending to prove an issue in dispute, it merely tends to prove something that may be relevant to a disputed issue.[12]

Which Formulation of Rule 46 Applies?

  1. [21]
    During oral submissions the parties accepted the earlier formulation of r 46 applies at least to those documents which were notified prior to the amendment.[13] However, this does not assist the Applicant in terms of the additional categories of documents notified in this application.
  2. [22]
    Unlike the rules which apply in other jurisdictions,[14] it is clear from r 46(1) above that a party's duty of disclosure in a proceeding before this Commission only arises '[i]f a directions order requiring disclosure of documents is made'. Such an order was made on 2 February 2021 which relevantly required the parties to exchange disclosure by 23 February 2021.
  3. [23]
    Having regard to the nature of the obligation to make disclosure, and the specific directions giving rise to that obligation, I am of the view that it is the formulation of the rule which existed at the time the obligation was imposed which applies. That is, I am satisfied the Applicant need only prove the documents he seeks are relevant to an issue in the proceedings.

Submissions

  1. [24]
    The Applicant contends the documents he requests are, irrespective of the applicable formulation of r 46, directly relevant to the issues in dispute in the substantive proceedings.[15] He submits he is entitled to discovery of documents which variously tend to prove, establish, or otherwise cast light on:[16]
  1. (a)
    whether he exercised a workplace right or rights;
  1. (b)
    whether adverse action of the types alleged was taken against him;
  2. (c)
    who knew about the exercise of the workplace right or rights;
  3. (d)
    who contributed to the decision to take the adverse action;
  4. (e)
    the reasons for taking adverse action; and
  5. (f)
    the knowledge of the Second and Third Respondents about the taking of the adverse action and the reasons for that action being taken.
  1. [25]
    Further, notwithstanding that the onus is on the Respondents in respect of their reasons for taking adverse action, the Applicant argues he is entitled to obtain documents for the purpose of testing their asserted reasons.[17]
  2. [26]
    For their part, the Respondents resist disclosure on the basis that such disclosure would be oppressive and that the documents sought are not relevant to the issues in the substantive proceedings, contending the disclosure sought amounts to a fishing expedition.[18]
  3. [27]
    Before turning to each category in turn, I note that, during oral submissions, the parties quite appropriately made several concessions. Consequently, at the conclusion of the hearing, I requested they jointly file a schedule indicating those categories which remain in dispute.[19] I have considered those categories only.

Categories 1, 2 and 3

  1. [28]
    The Applicant, an anaesthetist, claims Categories 1, 2 and 3 are relevant to the implementation of the Action Plan on 14 November 2019, which he alleges was adverse action taken in response to a complaint he made on 28 October 2019 regarding being listed as a supervisor on the roster for a particular case. The Respondents deny the allegation, contending the Action Plan was implemented because the Applicant failed to grasp his supervisory responsibilities. The categories are described as follows:

Category 1 – copies of all the rosters for all theatres at the Mackay Base Hospital (Hospital) between 24 to 26 October 2019

Category 2 – copies of all patient records, anaesthetic records, reports, scout nurse reports, for the patient the subject of the procedure in the 25 October 2019 case between 25 October 2019 and 29 October 2019 or otherwise as amended past this date.

Category 3 – copies of the theatre lists for each theatre at the Hospital on 25 October 2019 wherein the Applicant conducted work

  1. [29]
    The Applicant contends the above documents will tend to prove he was not listed as the supervisor for the relevant case, which is pleaded as an allegation of fact in the substantive proceedings.[20] While not determinative, he contends this would bear on the Commission's assessment of the real reason the Respondents implemented the Action Plan.[21]

Category 1 – Theatre Rosters

  1. [30]
    With respect to Category 1, the Applicant seeks disclosure of all rosters, within all theatres of the Hospital on the basis that he contends the rostering practices of the Anaesthetic Department were deficient and do not make clear who is the supervisory person within the requirements of professional rules.[22] He submits that evidence of practices within other departments will make good his contentions.[23] In circumstances where the Applicant made a complaint about rostering practices, he submits that if they were found to be deficient, this would make it more likely the Second Respondent had taken adverse action out of embarrassment.[24]
  2. [31]
    The Respondents contend the documents are not relevant to the issue in dispute.[25] Whether the Applicant was listed as the supervisor for the purposes of the 25 October 2019 case is, it says, irrelevant.[26] The Respondents accept the Applicant was not rostered for the theatre relevant to the 25 October 2019 case, but contend he assumed responsibility for the junior registrar who was rostered when he attended to assist.[27]
  3. [32]
    In any event, they submit the Applicant has himself disclosed the rosters for the Anaesthetic Department for the period 30 September 2019 to 8 November 2019, which includes the relevant timeframe sought.[28] The Respondents contend the rosters for other departments are not relevant as each department is bound to have its own rostering and staffing requirements and processes.[29]

Category 2 – Patient Records, Anaesthetic Records, Reports and Scout Nurse Reports

  1. [33]
    The Applicant submits the patient records, anaesthetic records, reports, and scout nurse reports go towards who the treating clinicians were for the 25 October 2019 case. He contends this would demonstrate whether he had the relevant connection with the case such that he was the supervisor.[30]
  2. [34]
    The Respondents argue the records are not relevant as it is not in dispute that the Applicant was not listed as the supervisor for the relevant registrar.[31] They repeat instead that it is the mere fact that the Applicant attended and assisted with the operation the subject of the 25 October 2019 case that he assumed the responsibility of supervisor.[32]
  3. [35]
    Notwithstanding these contentions, the representative for the Respondents indicated they were prepared to disclose de-identified copies of medical records in relation to the operation that took place on 25 October 2019 if sought by the Applicant, but they would not include documents related to the patient's pre-care or post-care – that is, the records would only relate to the event that took place in the theatre on 25 October 2019.[33]
  4. [36]
    In oral submissions, the Applicant maintained the concession did not go far enough, noting he wanted to press the point that had he actually been the supervisor in any sense known more widely than the version asserted by the Second Respondent, there would have been some record made of that in all the records including in the post-care records.[34]

Category 3 – Theatre Lists

  1. [37]
    Category 3 relates specifically to the lists for the theatres in which the Applicant worked on 25 October 2019. The Applicant contends these lists are directly relevant in that they will establish whether he was listed as the supervisor for the Registrar involved in the 25 October 2019 case.[35] These documents, he contends, are of the kind described in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[36] in that they would have been available to the Respondents in making their decision to implement the Action Plan and will enable the Applicant to contest their asserted reasons for doing so.[37]

Consideration

  1. [38]
    The Applicant contends he exercised a workplace right when he complained to the Second Respondent on 28 October 2019 about an anaesthetic record, which listed him as the supervisor of a junior Registrar involved in the treatment of a patient who subsequently died.[38] In the same complaint, the Applicant observed the Registrar was not directly supervised, asking 'how will we fix this recurrent, structural problem?'.[39]
  2. [39]
    He argues subsequent concerns raised in a meeting on 14 November 2019 by the Second Respondent about his alleged failure to, among other things, adequately supervise the Registrar, were in fact invented by the Second Respondent, and relied on to justify subsequent reprisal action, which included the development of an 'action plan', in response to the Applicant's email complaint of 28 October 2019, where he identified shortcomings within the Anaesthetic Department.[40]
  3. [40]
    The Respondents deny that adverse action was taken because of the complaint, arguing the 'action plan' proposed in the 14 November 2019 meeting was necessary because the content within the complaint indicated the Applicant did not understand the full extent of his duties as a supervisor and as a senior member of staff.[41]
  4. [41]
    Category 1 concerns copies of rosters for all theatres at the Mackay Base Hospital between 24 to 26 October 2019. Category 2 seeks all documents concerning the 25 October 2019 case, where a patient subsequently died within 24 hours of surgery. Category 3 seeks all theatre lists for the Hospital for 25 October 2019.[42]

Consideration – Category One

  1. [42]
    In respect of Category 1, the Respondents observed that it is not in dispute that the Applicant was not formally rostered as a supervisor for the operation on 25 October 2019. Rather, it was the mere fact that he attended the theatre and assisted with the operation that he became the allocated supervisor.
  2. [43]
    In any event, the Respondents submit the Applicant has already disclosed anaesthetic rosters for all theatres from 30 September 2019 to 8 November 2019.
  3. [44]
    As I understand it, the Applicant's motivation for accessing all rosters, for all theatres across the entire Hospital for the relevant period, is his interest in demonstrating the inadequacies with the Hospital's rostering practices and to determine whether or not other clinicians in other areas are treated differently.[43]
  4. [45]
    Having considered the email complaint of 28 October 2019 and the submissions of both parties, I consider that other than the anaesthetic rosters that have already been disclosed, the request for disclosure for all rosters, involving all theatres across the Hospital is excessive. I am also not persuaded the documents sought are particularly relevant, in circumstances where each department manages its own individual rostering and staffing requirements, relevant to the nature of the speciality or area.
  5. [46]
    The request for disclosure of all rosters, other than those that have already been disclosed is refused on the grounds of relevance and where such further disclosure would be oppressive.

Consideration – Category 2

  1. [47]
    During the proceedings, the Respondents indicated a preparedness to disclose de‑identified medical records requested in Category 2, but only in so far as they relate to the operation on the 25 October 2019, relevant to the Applicant's conduct at the time.[44]
  2. [48]
    Counsel for the Applicant submitted the concession did not go far enough, arguing copies of all patient records, including the anaesthetic and scout nurse reports for the period 25 October 2019 to 29 October 2019, would reinforce the Applicant's position he was not a supervisor for the relevant period.[45]
  3. [49]
    It is not in dispute that a key issue in the substantive matter concerns the extent, or otherwise, of the Applicant's supervisory obligations and the manner in they have been characterised or recognised by either party, particularly as they relate to the Applicant's involvement in the operation on 25 October 2019.
  4. [50]
    As such, I am prepared to make the order sought in Category 2, albeit limited to de-identified patient records, anaesthetic records and scout nurse reports for the procedure undertaken on 25 October 2019. I am not persuaded as to the relevance of documents concerning the patient's medical history or post-operative events.

Consideration – Category 3

  1. [51]
    The disclosure of documents in Category 3, namely copies of the theatre lists for each theatre, wherein the Applicant conducted work on 25 October 2019, is resisted by the Respondents on the basis they are irrelevant to the issue in dispute.
  2. [52]
    To the extent the lists may be of assistance in highlighting which theatres the Applicant was allocated to on 25 October 2019, the procedures or operations he was involved with and any accompanying supervisory expectations (or not), I am prepared to make the order sought in Category 3, but only in so far as it concerns the theatres in which the Applicant conducted worked, for the period he was rostered on 25 October 2019.

Category 23

  1. [53]
    Category 23 relates to proposed Action Plan and a subsequent review of its implementation conducted by Associate Professor Riley. It is described as follows:

Category 23 - copies of all documents, briefings, other documents, emails, and files notes of conversations between all Hospital employees, and between all Hospital employees and Associate Professor Riley, about Associate Professor Riley reviewing the Action Plan (Professor Riley Review) between 25 October 2019 to 4 September 2020

  1. [54]
    Counsel for the Applicant abandoned earlier written submissions provided to the Commission during the oral hearing,[46] contending instead Category 23 was directly relevant because the documents provided to Associate Professor Riley should include the best account of what happened during the 25 October 2019 case.[47]
  2. [55]
    The Respondents contend Category 23 amounts to a fishing expedition.[48] They argue the documents are not relevant to the issues in dispute and, in any event, the category is framed far too widely.[49] They submit Associate Professor Riley's report was commissioned after July 2020 and the extent to which it supports the Second Respondent's decision is irrelevant.[50] Instead, they contend it is the Second Respondent's evidence, and only his, that is relevant in determining his reasons for implementing the Action Plan.[51] The extent to which Associate Professor Riley's report supports the Second Respondent's decision after the fact is therefore irrelevant.[52]
  3. [56]
    In reply, Counsel clarified that the Applicant is not necessarily interested in the views formed by Associate Professor Riley, but rather the documents provided to him which establish what objectively occurred during the 25 October 2019 case.[53] These documents, he contends, are directly relevant because they will allow the Applicant to argue that on no version of the objectively determinable facts could he have been considered the supervisor for the relevant Registrar, notwithstanding his brief entry to the relevant theatre.[54]

Consideration

  1. [57]
    As touched on earlier, one of the issues in dispute in the substantive matter is that on, 14 November 2019, the Second Respondent proposed and implemented the Action Plan allegedly because the Applicant made a complaint on 28 October 2019, which included references to shortcomings within the Anaesthetic Department, for which the Second Respondent is responsible.
  2. [58]
    Counsel for the Applicant argues the documents identified in Category 23 'evidence the conduct of exactly what transpired on the 25th of October' and in turn would allow the Commission to test what the Second Respondent says about why it was that he thought that the Applicant was the patient's supervisor.[55]
  3. [59]
    Aside from the broadness of the category, a further difficulty I have with the request for disclosure of the documents is that Associate Professor Riley's report was commissioned after the Applicant commenced the substantive proceedings against the Respondents and following a conciliation in the Commission.
  4. [60]
    Although I accept that disclosure is available in this matter where it would lead to a train of enquiry which would either advance a party's own case or damage that of their adversary, I am not satisfied the documents sought by this category are relevant in any event. Moreover, in its current form, the category is too broad and oppressive.
  5. [61]
    The request for disclosure is refused on the grounds of relevance.

Categories 29 and 30

  1. [62]
    Categories 29 and 30 largely relate to a bullying complaint the Applicant made on 13 November 2019 regarding the Second Respondent, and the Respondents' subsequent handling of that complaint, including a decision made on 6 March 2020 that the complaint could not be substantiated.[56]
  2. [63]
    Relevantly, the adverse action complained of is the finalisation of the bullying complaint adverse to the Applicant, and the failure to include reasons for that decision, as opposed to the alleged bullying itself. Categories 29 and 30 are described as follows:

Category 29 - copies of all email and other communications between all Hospital employees about a 2 September 2019 meeting between the Applicant, [the Second Respondent] and Dr Singaravelu (2 September meeting) between 2 September 2019 to 6 November 2020.

Category 30 - copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees about the 2 September [meeting] between 2 September 2019 to 6 November 2020.

  1. [64]
    The Applicant argues the above documents are directly relevant to a meeting of the Anaesthetic Department on 2 September 2019, during which the Applicant alleges the Second Respondent engaged in bullying behaviour towards him the subject of his bullying complaint.[57]
  2. [65]
    He submits these documents were before the Respondents in considering whether the bullying behaviour actually occurred,[58] and contends they will tend to establish the Second Respondent did engage in the alleged behaviour despite the Third Respondent's finding the complaint could not be substantiated.[59]
  3. [66]
    If the above documents were before the Third Respondent when he made his decision, the Applicant contends this would enable him to challenge the Respondents' contentions the complaint was finalised appropriately, and not for a proscribed reason.[60] This is so because the Applicant contends that the material before the decision-maker indicated the bullying did occur, and the subsequent failure to include reasons for dismissing the complaint was because there was in fact no basis to dismiss the complaint.[61]
  4. [67]
    The Respondents contend the documents are not relevant to the issue in dispute being whether they took adverse action by failing to comply with the MHHS's procedures in relation to dealing with the bullying complaint.[62] They submit the Applicant does not complain the alleged bullying constituted adverse action, but rather the adverse action was the MHHS and the Third Respondent's failure to comply with the MHHS policies, directives and codes of management in respect of dealing with a bullying complaint.[63]
  5. [68]
    As I understood the submissions, the Respondents submit the scope of the categories is too wide in that the Applicant seeks disclosure of all communications and records in relation to the 2 September 2019 meeting.[64] The Respondents contend that any material beyond what the decision-maker considered in deciding to dismiss the bullying complaint is irrelevant.[65]

Consideration

  1. [69]
    The issue in dispute in so far as it concerns Categories 29 and 30, concerns an allegation the Respondents took adverse action against the Applicant by failing to follow the relevant policies, directives and codes of management with dealing with his bullying complaint against the Second Respondent.
  2. [70]
    The Applicant claims this occurred after he made various complaints about his employment, bullying and inadequacies in supervision at the Hospital.
  3. [71]
    In circumstances where the adverse action being complained of is the failure by the Hospital to comply with relevant policies, directive and processes in arriving at its decision, I am prepared to order disclosure of the documents listed in the above categories but only to the extent the documents were before the decision-maker at the time it was determined the bullying complaint would be dismissed.

Categories 34 and 35

  1. [72]
    Categories 34 and 35 also relate to the Applicant's bullying complaint and a subsequent external investigation of that complaint conducted by an independent investigator, Ms Rebecca Taumalolo. They are described as follows:

Category 34 - copies of all emails and other communications between all Hospital employees, and between all Hospital Employees and the independent investigator of the Bullying Complaints, Rebecca Taumalolo (External Investigation) between 13 November 2019 to 6 November 2020.

Category 35 - copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees, and copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by Ms Taumalolo, about the External Investigation between 13 November 2019 to 6 November 2020.

  1. [73]
    The Applicant contends the Respondents propose to rely on the external investigation report of Ms Rebecca Taumalolo to justifying finalising the bullying complaint adverse to the Applicant.[66] In those circumstances the Applicant submits he is entitled to see the material provided to Ms Taumalolo with a view to testing her conclusions and the Respondents' contentions relying on that report.[67]
  2. [74]
    The Respondents contend the documents are not relevant to the issue in dispute, being the allegation they failed to comply with the MHHS's policies and procedures.[68] It is said the report was commissioned after the Applicant commenced proceedings against the Respondents.[69] In any event, the Respondents deny any intention to rely upon the report.[70]
  3. [75]
    During the oral hearing, the Respondents further contended the nature of the report and relevant material meant it was subject to legal professional privilege.[71] In reply, the Applicant contended that if the documents were considered relevant, but there was a claim of privilege, the proper course was to make the order for disclosure and then deal with any claim to privilege which may be made.[72]

Consideration

  1. [76]
    Similar to Categories 29 and 30, the underpinning dispute as it relates to Categories 34 and 35 and the investigation undertaken by Ms Taumalolo, concerns an allegation the Respondents took adverse action against the Applicant by failing to follow the relevant policies, directives and codes of management, when arriving at a decision in relation to a bullying complaint the Applicant made against the Second Respondent in November 2019.
  2. [77]
    Even if it were the case that the Applicant was able to overcome the legal privilege attached to the preparation of Ms Taumalolo's report, the difficulty with the request for disclosure, aside from the broad timeframes, is that I am not persuaded that the documents sought to be disclosed are relevant to the issues in dispute.
  3. [78]
    The Applicant filed a general protections claim in the Commission in mid-June 2020. Ms Taumalolo's report was commissioned after the claim was filed and following a conciliation in the Commission. Moreover, the Respondents deny any intention to rely upon Ms Taumalolo's report. The steps and processes undertaken by the Hospital when determining the bullying complaint, occurred well before an external investigation was commissioned.
  4. [79]
    The request for disclosure if therefore refused on the grounds of relevance.

Categories 67 and 68

  1. [80]
    Categories 67 and 68 relate to the Respondents' decision to suspend the Applicant and the voracity of the reasons for the suspension. The categories are described as follows:

Category 67 - copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees about the Applicants PADs between 1 August 2017 to 6 November 2020.

Category 68 - copies of all emails and other communications between all Hospital employees about the Applicant's PADs between 1 August 2017 to 6 November 2020.

  1. [81]
    The Applicant contends his performance appraisal documents ('PADs') are relevant to his professional conduct in assessing the Respondents' decision to suspend him, and the reasons for doing so.[73] He contends that no performance issues were raised with him prior to a medication error leading to his suspension in mid-2020 and submits these categories would make good that contention.[74]
  2. [82]
    Although the Respondents have already disclosed the Applicant's 2018 PAD, the Applicant argues that any evidence of discussions about what should or should not be included in the PADs must also be relevant.[75] In oral submissions his representative conceded the relevant timeframe for the documents he seeks should be shortened to 2 July 2020 considering he was suspended and ceased performing his duties after this time.[76]
  3. [83]
    The Respondents contend the categories amount to a fishing expedition and are not relevant to the issue in dispute being whether the Applicant was suspended, and a disciplinary process commenced, for a proscribed reason.[77] They argue that the Applicant's performance since 2017 and his corresponding PADs are not relevant to the medication error and the Applicant's conduct in relation to that specific event on 13 March 2020, which triggered the suspension and disciplinary process.[78]

Consideration

  1. [84]
    The Applicant maintains adverse action was taken, in the form of a suspension from employment and the commencement of disciplinary processes against him, because he exercised a workplace right, having made several complaints in respect of his employment and workplace.
  2. [85]
    The Respondents submit the concerns with the Applicant's conduct, in so far as those concerns led to his suspension, are limited to a singular event. Moreover, that it is the Applicant's professional conduct that is in issue,[79] in circumstances where he failed to disclose a medication error.[80]
  3. [86]
    The request for disclosure is said to be relevant in circumstances where the Applicant is attempting to ascertain whether there is any basis for the assertion there were ongoing concerns with his performance or any basis which might warrant the taking of significant action, including the action plan of 14 November 2019.[81]
  4. [87]
    Counsel for the Applicant submitted his objective is to capture a representative sample of his PADs and associated documents, with a view to demonstrating there were no ongoing issues with his performance of any kind until the moment he complained.[82]
  5. [88]
    It is not in issue that the Applicant was issued with the Action Plan and later suspended. What is in issue is whether the reasons those actions were taken were valid and whether they were for the purposes of reprisal.
  6. [89]
    In circumstances where disclosure is available where it would lead to a train of enquiry which would either advance a party's own case or damage that of their adversary, I am prepared to order disclosure of the documents listed in Categories 67 and 68, albeit narrowed to a less oppressive timeframe of 1 July 2018 to 1 July 2020. I note in subsequent submissions, the parties consented to narrow the definition of 'all Hospital employees' to only those persons who were involved or who were potentially aware of the Applicant's PADs, which I agree is appropriate with respect to these categories.

Categories 71 and 72 and Paragraph 2(c) of the Application

  1. [90]
    Categories 71 and 72, and paragraph 2(c) of the Application, relate to the treatment of a medication error made by another clinician which the Applicant contends is relevant in assessing the reasons for the treatment of the medication error made by him, and his subsequent suspension. Categories 71 and 72 are described as follows:

Category 71 - copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees about a meeting conducted on 26 September 2019 by the Second Respondent and the Anaesthetic Department of the Hospital for 26 September 2019.

Category 72 - copies of all emails and other communications between all Hospital employees about a meeting conducted on 26 September 2019 by the Second Respondent and the Anaesthetic Department of the Hospital for 26 September 2019.

  1. [91]
    As mentioned at [12] above, in addition to the amended list of documents notified on 2 March 2021, the Applicant also sought disclosure of a number of additional documents in his application. The only category of documents still in dispute, paragraph 2(c) of the application, is described as follows:

... Copies of all minutes, diary notes, meeting notes, memos, notes, statements and file notes of the 26 September 2019 meeting between Dr Danny Bartlett and the Consultant Anaesthetists in the Anaesthesia Department of the Hospital where topics of discussion included a medication error and patient death at the Hospital.

  1. [92]
    The Applicant submits the above documents relate to a meeting of the Anaesthetic Department on 26 September 2019 concerning a medication error made by another clinician which led to a patient's death.[83]
  2. [93]
    The Applicant contends the Respondents' treatment of such a serious error can be used to test their assertion that the less serious, non-fatal, medication error subsequently committed by the Applicant warranted his suspension from duties and the commencement of a disciplinary process.[84]
  3. [94]
    He contends the way in which the Respondents ordinarily address such errors would create an apt comparator against which to determine whether the Applicant's suspension was warranted.[85]
  4. [95]
    The Respondents contend the documents are not relevant to the issue in dispute being whether adverse action was taken in the form of the suspension and disciplinary process. It is said the reasons for acting related to the Applicant's professional conduct in failing to disclose the medication error, as opposed to making the medication itself.[86] The relevance of another person's medication issue is therefore, they contend, far too removed from the Applicant's individual circumstances and actions.[87]

Consideration

  1. [96]
    Although I accept a key consideration in the substantive proceedings will be the disciplinary processes commenced in respect of the Applicant and the reasons for the action, I have not been persuaded the disclosure request for documents in Categories 71 and 72 concerning how another employee was treated in respect of an unrelated event, in a different set of circumstances, is relevant to the matters to be determined in these proceedings.
  2. [97]
    For these reasons, no disclosure of documents falling within these categories is ordered.

Conclusion

  1. [98]
    I order accordingly

Order

  1. The respondents make full disclosure of the following documents to the applicant:
    1. (a)
      de-identified copies of patient records, anaesthetic records and scout nurse reports for the procedure undertaken on 25 October 2019;
    2. (b)
      copies of all theatre lists for 25 October 2019 for each theatre at the Mackay Base Hospital wherein the applicant conducted work;
    3. (c)
      to the extent they were before the decision-maker at the time it was determined the applicant's bullying complaint would be dismissed:
      1. copies of all emails and other communications between all Mackay Base Hospital employees about a 2 September 2019 meeting between the applicant, the second respondent and Suresh Singaravelu between 2 September 2019 to 6 November 2020; and
      2. copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Mackay Base Hospital employees about the 2 September 2019 meeting between 2 September 2019 to 6 November 2020;
    4. (d)
      to the extent they have not already been disclosed, copies of all minutes, diary notes, meeting notes, memos, notes, statements, file notes, including notes and/or records of all conversations recorded by all Hospital employees about the applicants PADs between 1 July 2018 and 1 July 2020; and
    5. (e)
      copies of all emails and other communications between all Hospital employees about the applicant's PADs between 1 July 2018 and 1 July 2020.
  2. With respect to Orders 1(d) and 1(e), the term 'all Hospital employees' means:
    1. (a)
      Alix Thompson, Acting Operations Director;
    2. (b)
      Alex Cottle, International Medical Graduate Supervisor;
    3. (c)
      Daniel Bartlett, Clinical Director;
    4. (d)
      Suresh Singaravelu, Senior Consultant;
    5. (e)
      Professor Reasbeck, Chief Medical Officer;
    6. (f)
      Rod Francisco, Executive Director of People;
    7. (g)
      Ivan Franettovich, Director of Operations; and
    8. (h)
      Jo Whitehead, former Chief Executive.

Or those people who subsequently held the above roles within the period 1 July 2018 to 2 July 2020.

  1. The respondents make disclosure in accordance with Orders 1 and 2 by 15 February 2022.
  2. The application is otherwise dismissed.

Footnotes

[1] David's Distribution Pty Ltd v NUW (1999) 91 FCR 463, [109]; CFMEU v BHP Coal [2010] FCA 590, [44].

[2] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [45] ('Barclay').

[3] Industrial Relations (Tribunal) Rules 2011 (Qld) r 41(1)(o).

[4] [2016] QIRC 75.

[5] Ibid [4] (citations omitted).

[6] (1882) 11 QBD 55, [63].

[7] Endorsed by the Commission in Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5, 3; QNU v Sundale Garden Village, Nambour [2004] QIRComm 212, 6.

[8] (2011) 212 IR 313, [34]-[37].

[9] Ibid [34].

[10] Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335, [12].

[11] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102, 105.

[12] Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266, [11].

[13] T1-25 ll 1-9.

[14] See, for example, Uniform Civil Procedure Rules 1999 (Qld) ch 7 pt 2.

[15] T1-6 ll 35-46.

[16] Applicant's submissions filed 1 April 2021, [25].

[17] Ibid [26].

[18] Respondent's submissions filed 22 April 2021, [1]; T1-25 ll 19-21, 29-35.

[19] Schedule of Disclosure filed 4 June 2021.

[20] Applicant's submissions filed 1 April 2021, [31]; T1-11 ll 1-2.

[21] T1-10 ll 41-44.

[22] T1-12 ll 11-15; T1-38 ll 22-24.

[23] T1-38 ll 25-30.

[24] T1-38 ll 36-41.

[25] Respondents' submissions filed 22 April 2021, [16].

[26] Ibid.

[27] T1-28 ll 18-20.

[28] Respondents' submissions filed 22 April 2021, [17] referring to the Affidavit of Dr Pieter Huyghe filed 16 April 2021, Exhibit PJFH-10; T1-27 ll 29-33.

[29] T1-27 ll 35-37.

[30] T1-13 ll 1-5.

[31] T1-28 ll 14-18.

[32] T1-28 ll 18-20.

[33] T1-28 ll 25-27.

[34] T1-39 ll 37-46.

[35] T1-13 ll 18-20.

[36] Barclay (n 2).

[37] T1-14 ll 15-20.

[38] Applicant's Statement of Facts and Contentions filed 9 October 2020, [21]-[22].

[39] Affidavit of Ms Annie Louise Smeaton filed 16 June 2020, Exhibit ALS-2.

[40] T1-38; Applicant's Statement of Facts and Contentions filed 9 October 2020, [27]-[33].

[41] Respondent's Response to Applicant's Statement of Facts and Contentions filed 23 October 2020, [8].

[42] Applicant's submissions filed 1 April 2021, [27].

[43] T1-38 ll 20-30.

[44] T1-28 ll 32-44; T1-39 ll 12-16.

[45] T1-39 ll 37-46.

[46] T1-16 ll 26-28.

[47] T1-16 ll 28-30.

[48] T1-31 ll 34-35.

[49] Respondents' submissions filed 22 April 2021, [22]; T1-32 l 5.

[50] Ibid.

[51] T1-32 ll 1-2.

[52] Respondents' submissions filed 22 April 2021, [22].

[53] T1-41 ll 34-41.

[54] T1-41 ll 19-25.

[55] T1-41 ll 30-35.

[56] Applicant's Statement of Facts and Contentions filed 9 October 2020, [25]-[26].

[57] Applicant's submissions filed 1 April 2021, [39].

[58] T1-17 ll 13-16.

[59] Applicant's submissions filed 1 April 2021, [39].

[60] Ibid; T1-17 ll 30-35.

[61] T1-42 ll 22-24.

[62] Respondents' submissions filed 22 April 2021, [25].

[63] Ibid.

[64] T1-32 ll 33-37.

[65] T1-33 ll 10-16.

[66] Applicant's submissions filed 1 April 2021, [41].

[67] Ibid [42].

[68] Respondents' submissions filed 22 April 2021, [27].

[69] Ibid.

[70] Ibid [28].

[71] T1-33 ll 25-27, 35-37.

[72] T1-42 ll 34-44.

[73] Applicant's submissions filed 1 April 2021, [44].

[74] T1-18 l 45 to T1-19 l 16.

[75] T1-18 ll 9-12.

[76] T1-18 ll 29-31, 39; Schedule of Disclosure filed 4 June 2021.

[77] Respondents' submissions filed 22 April 2021, [29]; T1-34 ll 18-20.

[78] Respondents' submissions filed 22 April 2021, [30] T1-34 ll 4-13.

[79] Respondents' submissions filed 22 April 2021, [33].

[80] T1-34 ll 35-45.

[81] T1-15 ll 29-35.

[82] T1-19 ll 1-10.

[83] Applicant's submissions filed 1 April 2021, [45].

[84] Ibid [47]; T1-20 ll 22-26.

[85] Applicant's submissions filed 1 April 2021, [48]; T1-21 ll 4-6.

[86] Respondents' submissions filed 22 April 2021, [33].

[87] T1-35 ll 1-2.

Close

Editorial Notes

  • Published Case Name:

    Huyghe v State of Queensland (Mackay Hospital and Health Service)

  • Shortened Case Name:

    Huyghe v State of Queensland (Mackay Hospital and Health Service)

  • MNC:

    [2022] QIRC 14

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    25 Jan 2022

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
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
2 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
CFMEU v BHP Coal [2010] FCA 590
2 citations
Jump To
Cite 1 - [2010] FCA 590
Cite 2 - [2010] FCA 590
CFMEU v BHP Coal Pty Ltd (No 2) (2011) 212 IR 313
3 citations
Jump To
Cite 1 - (2011) 212 IR 313
Cite 2 - (2011) 212 IR 313
Cite 3 - (2011) 212 IR 313
Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QB.D 55
2 citations
Jump To
Cite 1 - (1882) 11 QB.D 55
Cite 2 - (1882) 11 QB.D 55
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
2 citations
Jump To
Cite 1 - (1999) 91 FCR 463
Cite 2 - (1999) 91 FCR 463
Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5
2 citations
Jump To
Cite 1 - [1999] QIRComm 5
Cite 2 - [1999] QIRComm 5
QNU v Sundale Garden Village, Nambour [2004] QIRComm 212
2 citations
Jump To
Cite 1 - [2004] QIRComm 212
Cite 2 - [2004] QIRComm 212
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266
2 citations
Jump To
Cite 1 - (2002) 223 LSJS 266
Cite 2 - (2002) 223 LSJS 266
Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 102
Cite 2 - [1997] 2 Qd R 102
Southern Equities Corp Ltd (in liq) v Arthur Anderson & Co [2001] SASC 335
2 citations
Jump To
Cite 1 - [2001] SASC 335
Cite 2 - [2001] SASC 335
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75
3 citations
Jump To
Cite 1 - [2016] QIRC 75
Cite 2 - [2016] QIRC 75
Cite 3 - [2016] QIRC 75

Cases Citing

Case NameFull CitationFrequency
Chen v Gold Coast Hospital and Health Service [2023] QIRC 22 citations
Phillips v State of Queensland (Department of Transport and Main Roads (No. 2) [2024] QIRC 1382 citations
Smith v State of Queensland (Queensland Health) (No.4) [2024] QIRC 1982 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2025] QIRC 2033 citations
Zarin Amavand v Kanjini Co-Op Ltd [2025] QIRC 862 citations
1

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