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  4. Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education) - [2022] QIRC 141

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Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education)[2022] QIRC 141

Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education)[2022] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education) [2022] QIRC 141

PARTIES:

Purnell, Barry

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/156

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

14 April 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDER:

The State of Queensland (Department of Education) is granted leave to make the objection dated 23 December 2021 out of time.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – PRACTICE AND PROCEDURE – application for leave to make an objection under r 64E of the Industrial Relations (Tribunal) Rules 2011 out of time – consideration of relevant factors – leave granted

LEGISLATION:

Industrial Relations Act 1999 (Qld) s 74

Industrial Relations (Tribunal) Rules 2011 (Qld) rr 64E, 64F, 226

CASES:

Bunney v Workers' Compensation Regulator [2020] QIRC 210

Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248

House v The King (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353

Ulowski v Miller (1968) SASR 227

Reasons for Decision

  1. [1]
    This is an application in existing proceedings brought by the State of Queensland (Department of Education) ('the Department') seeking leave to make an objection to a notice of non-party disclosure ('the NNPD') out of time.
  2. [2]
    The application is opposed by the appellant to the substantive proceedings, Mr Barry Purnell, who seeks disclosure of the documents listed in the NNPD. The substantive respondent, the Workers' Compensation Regulator ('the Regulator'), has not sought to be heard on the present application.
  3. [3]
    The limited issue for my consideration is whether leave ought to be granted having regard to r 64E of the Industrial Relations (Tribunal) Rules 2011 (Qld) ('the Rules').
  4. [4]
    For the reasons that follow, I grant leave for the Department to make the objection out of time.

Background

  1. [5]
    By notice of appeal filed 8 October 2021, Mr Purnell appeals a decision of the Regulator dated 13 September 2021.
  2. [6]
    On the same date his appeal was filed, Mr Purnell requested his appeal be placed in abeyance for three months pending the resolution of a right to information request for documents held by the Department ('the RTI request'). On 12 October 2021, the Regulator acquiesced to the request. For that reason, formal directions to progress the matter have not been issued.
  3. [7]
    In the meantime, Mr Purnell caused a NNPD to be issued on 26 November 2021.
  4. [8]
    The NNPD lists the Department as the nominated non-party. There are four individuals named in the NNPD as affected parties, however, none of those persons have made an objection or otherwise sought to be heard.
  5. [9]
    The NNPD seeks disclosure of nine categories of documents, described as follows:
  1. PDF Table information Screen – Ms Jen Fagan
  1. Ms Jen Fagan's accreditation as a trainer for the Department of Education
  1. The departments Standard Operation Procedure (SOP)
  1. Department Risk Assessment associated with the use of ICARE
  1. Copies of all disciplinary records, including informal conversations with Mr Purnell
  1. PID Disclosure obligation – S29 PID Act
  1. Access to Emails and Electronic Instant messaging
  1. Conversation Structure 9 November 2020
  1. Copies of emails between Mr Purnell and Mr Smith
  1. [10]
    The Director-General of the Department received the NNPD on 7 December 2021. On 14 December 2021, the Department sought an extension of time to provide its objection.
  2. [11]
    Although not entirely clear to the Commission, it appears Mr Purnell has also made a separate application for the release of documents through the Office of the Information Commissioner ('the OIC'). That application is not before this Commission, however I have been able to discern that there is at least some overlap in terms of the documents sought by that application and the one presently before me. I will return to the relevance of the OIC application below.

Relevant Provisions

  1. [12]
    The Rules relevantly provide:

64E Objection to production

 (1) The non-party, or a person who has been served with a copy of the notice under rule 64D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time.

 ...

64F Objection stays notice

  Service of an objection under rule 64E operates as a stay of the notice.

Consideration

  1. [13]
    The issue for determination, here, is solely whether leave ought to be granted for the objection to be filed out of time.
  2. [14]
    The power to extend the prescribed time limit under r 64E(1) is fundamentally an exercise of discretion, however, it 'must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.'[1]
  3. [15]
    The factors relevant to considering whether the Commission ought to exercise its power to grant an extension of time are generally well established.[2]
  4. [16]
    In Ulowski v Miller,[3] Bray CJ considered that in exercising its discretion to allow an extension of time, the Court should not be fettered by any absolute or inflexible rules.[4] However, his Honour then observed that, generally, the five paramount factors the Court will have regard to are the:
  1. (a)
    length of the delay;
  2. (b)
    explanation for the delay;
  3. (c)
    conduct of the respondent;
  4. (d)
    prejudice to the applicant if the discretion is not exercised; and
  5. (e)
    prejudice to the respondent if the discretion is exercised.[5]
  1. [17]
    Similar guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,[6] namely, that:
  • special circumstances need not be shown, but an application for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
  • action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
  • any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension, although the mere absence of prejudice is not enough to justify the grant of an extension; and
  • the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[7]
  1. [18]
    Although these observations were made in respect of s 74(2)(b) of the Industrial Relations Act 1999 (Qld),[8] the principles set out above provide guidance as to what should inform my discretion when determining whether to grant an extension of time to the Department in this matter.

Submissions

  1. [19]
    Before turning to consider each of the factors set out above, it is relevant to note the following.
  2. [20]
    After the Department sought leave to file an objection to the NNPD out of time, I issued a directions order requiring, inter alia, submissions on whether the Department's objection should be allowed out of time.
  3. [21]
    Unfortunately, it appears Mr Purnell has conflated the present proceedings with his concurrent application before the OIC mentioned above. His submissions appear to relate almost entirely to the matter before the OIC and not the present application. To the extent that his submissions are relevant to the issue at hand, they are reflected below.

Statutory Timeframe

  1. [22]
    Neither Mr Purnell nor the Department made submissions suggesting the statutory timeframe ought to be disregarded.

Consideration

  1. [23]
    As is clear from r 64E of the Rules, an objection is only effective to stay a notice of non‑party disclosure if it is made within seven days of service, or if the Commission grants leave for the objection to be made at a later time.
  2. [24]
    The Department did not file the objection within seven days. That failure is not merely an irregularity which can be rectified under r 226 of the Rules.[9] It is therefore necessary for the Department to be granted leave if it is to rely on the objection.

Length of Delay

  1. [25]
    The Department made its objection on 23 December 2021, nine days after the time for making the objection lapsed under r 64E(1).

Consideration

  1. [26]
    A period of nine days is not an insignificant amount of time. I consider this weighs against the Department. However, this consideration must be balanced against the other factors, particularly the reason for the delay.

Reason for Delay

  1. [27]
    As a non-party to the substantive matter, the Department explains it was required to obtain a copy of the appeal notice from the Regulator in order to consider the relevance of the documents sought by the NNPD.[10] It obtained the appeal notice on 16 December 2021.[11]
  2. [28]
    The delay thereafter, it submits, resulted from decreased staffing over the December period which meant it required further time to consider its position.[12] It submits this difficulty was exacerbated by the number and scope of the documents sought, highlighting initial searches returned over 3,000 documents matching the descriptions in the NNPD.[13] Consequently, the Department contends it was not in a position to make its objection within the statutory seven day period.[14]
  3. [29]
    Mr Purnell submits the documents sought by the NNPD are the same documents requested by him through the RTI request he made in May 2021.[15]

Consideration

  1. [30]
    The Department relies, at least in part, on the requirement to obtain the appeal notice from the Regulator, but made no submissions as to what steps it took to do so prior to the objection period lapsing. Nor does it mention whether any attempt was made to obtain the relevant material from the Industrial Registry, or Mr Purnell. I do not consider this to be an adequate explanation for the delay.
  2. [31]
    However, having reviewed the NNPD, I am somewhat sympathetic to the Department's submissions regarding the significant number and scope of documents sought by Mr Purnell, and the obvious time periods involved in reviewing those materials.
  3. [32]
    I accept Mr Purnell's submissions that these documents may very well be the same documents sought by him through other processes. However, it would have been incumbent on the Department to review each of those documents in the context of the NNPD and substantive appeal in order to appropriately consider whether to make an objection.
  4. [33]
    Given the lack of particularity surrounding some of the categories of documents, and the lengthy timeframes involved in others, I am satisfied there was an acceptable reason for the Department's delay in making its objection.

Prejudice to the Parties

  1. [34]
    The Department argues it will suffer prejudice if leave is not granted, but fails to articulate exactly how such prejudice would manifest.[16] Conversely, it argues granting the extension would not cause prejudice to Mr Purnell having regard to the early stage of the substantive proceedings.[17]
  2. [35]
    Mr Purnell did not make any submissions as to how he might be prejudiced by the granting of leave.

Consideration

  1. [36]
    In the absence of submissions from Mr Purnell, I am unable to draw any conclusions as to the extent of the prejudice he would experience in the event the timeframe is extended. On the other hand, having regard to the nature, scope and extent of the material to be disclosed, notwithstanding its failure to clearly articulate its concerns, I am satisfied the Department would suffer great prejudice if it were not permitted to make and defend its objections.

Conduct of the Department

  1. [37]
    The NNPD was effectively served on the Department on 7 December 2021. Crown Law was briefed to assist the Department on 14 December 2021, and it immediately took steps to seek an extension from the Commission to make its objection.
  2. [38]
    Mr Purnell highlights that after its service, the Department failed to take any action with respect to the NNPD for seven days.[18] Likewise, he notes that throughout the above mentioned RTI request process, as well as the OIC application, the Department has failed to provide the documents he has sought, instead seeking and obtaining several extensions of time to respond to the applications.[19]

Consideration

  1. [39]
    Although I note the Department took steps to seek leave to make its objection out of time, it did not do so until 14 December 2021. This was the last day on which it could have made the objection within time, effectively precluding any opportunity for it to do so had I immediately refused leave.
  2. [40]
    In Bunney v Workers' Compensation Regulator,[20] Power IC considered it would be unfair not to allow a late objection in circumstances where the non-party had sought to engage with the process, notwithstanding its failure to make the objection within time.[21]
  3. [41]
    Although it is clear the Department did not comply with the procedural aspects of making an objection within the requisite time, I am satisfied that, to the extent it was possible, it was engaging in the process and taking steps to consider the NNPD.

The Department's Prospects of Success in Defending the Objection

  1. [42]
    Neither the Department nor Mr Purnell made submissions as to the Department's prospects of success defending the objection.

Consideration

  1. [43]
    A refusal to grant leave for an extension of time must only be made where the merits, or lack thereof, are so apparent as to warrant the refusal.[22]
  2. [44]
    Having had the benefit of reviewing the NNPD, as well as the Department's objection, and noting Mr Purnell has not challenged the objection on this basis, I am satisfied the objection is not so deficient the Department would have no prospect of raising a successful defence.

Conclusion

  1. [45]
    Having regard to the totality of my reasons above, I am satisfied the Department ought to be granted leave to make the objection out of time.
  2. [46]
    I order accordingly.

Order

The State of Queensland (Department of Education) is granted leave to make the objection dated 23 December 2021 out of time.

Footnotes

[1] House v The King (1936) 55 CLR 499, 503.

[2] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129, [3]-[5]; Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182, [31]-[32].

[3] (1968) SASR 227.

[4] Ibid 280.

[5] Ibid.

[6] (1984) 3 FCR 344.

[7] Ibid 348-349.

[8] Which relevantly dealt with applications for reinstatement made out of time.

[9] Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248, [14].

[10] Department's submissions filed 23 December 2021, [7].

[11] Ibid.

[12] Ibid [8].

[13] Ibid [10].

[14] Ibid [9]-[10].

[15] Mr Purnell's submissions filed 7 January 2022, [3].

[16] Department's submissions filed 23 December 2021, [11].

[17] Ibid.

[18] Mr Purnell's submissions filed 7 January 2022, [2].

[19] Ibid [4].

[20] [2020] QIRC 210

[21] Ibid [20].

[22] Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353.

Close

Editorial Notes

  • Published Case Name:

    Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education)

  • Shortened Case Name:

    Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 141

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    14 Apr 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
Bunney v Workers' Compensation Regulator [2020] QIRC 210
2 citations
Jump To
Cite 1 - [2020] QIRC 210
Cite 2 - [2020] QIRC 210
Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248
2 citations
Jump To
Cite 1 - [2021] QIRC 248
Cite 2 - [2021] QIRC 248
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
2 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
2 citations
Jump To
Cite 1 - [2013] QIRC 129
Cite 2 - [2013] QIRC 129
Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182
2 citations
Jump To
Cite 1 - [2019] QIRC 182
Cite 2 - [2019] QIRC 182
Savage v Woolworths (Qld) Pty Ltd (1999) 162 QGIG 353
2 citations
Jump To
Cite 1 - (1999) 162 QGIG 353
Cite 2 - (1999) 162 QGIG 353
Ulowski v Miller (1968) SASR 227
2 citations
Jump To
Cite 1 - (1968) SASR 227
Cite 2 - (1968) SASR 227

Cases Citing

Case NameFull CitationFrequency
Ecimovic v State of Queensland (Queensland Police Service) [2022] QIRC 3002 citations
Harry v State of Queensland (Queensland Health) [2022] QIRC 2932 citations
Olesk v State of Queensland (Department of Education) [2022] QIRC 2142 citations
1

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