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  4. Smith v State of Queensland (Queensland Health) (No. 3) - [2023] QIRC 211

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Smith v State of Queensland (Queensland Health) (No. 3)[2023] QIRC 211

Smith v State of Queensland (Queensland Health) (No. 3)[2023] QIRC 211

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Queensland Health) & Anor (No. 3) [2023] QIRC 211

PARTIES: 

Smith, Paul Joseph

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

&

Webb, Robert

(Second Respondent)

CASE NO.:

GP/2022/18

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

25 July 2023

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

The application to join GP/2022/18 with AD/2022/86 & AD/2022/87 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – APPLICATION FOR JOINDER – where Respondents seeks joinder of applications – where Applicant resists the joinder.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 144

Industrial Relations Act 2016 (Qld), ch 8 pt 1 div 3

Industrial Relations (Tribunals) Rules 2011 (Qld), r 98

Public Interest Disclosure Act 2010 (Qld)

CASES:

Brett Reynolds v The Workers' Compensation Regulator & Ors [2019] QIRC 140

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 299

APPEARANCES:

Dr S. Sherlock for the Applicant

Mr D. Pratt of Counsel instructed by McCullough

Robertson for the Respondents

Reasons for Decision

Introduction

  1. [1]
    On 20 September 2022, Mr Paul Joseph Smith filed a general protections application  against the State of Queensland (Queensland Health) and Dr Robert Webb in the Queensland Industrial Relations Commission ('the Commission'), pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). This matter is referred to as GP/2022/18.
  1. [2]
    Mr Smith is also the Complainant in matter AD/2022/86 in which he alleges contraventions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') and the Public Interest Disclosure Act 2010 (Qld) ('the PID Act') by Dr Kenneth Thistlethwaite and the State of Queensland (Queensland Health). Matter AD/2022/86 was joined with a related matter AD/2022/87[1] with the consent of the parties.
  1. [3]
    By application on 19 May 2023, the State of Queensland (Queensland Health) and Dr Robert Webb (together, 'the Respondents') filed an application that matter GP/2022/18 be joined with AD/2022/86 and AD/2022/87 ('the Application').
  1. [4]
    Mr Paul Joseph Smith (referred to as 'the Applicant' for consistency) opposes the joinder Application.

Statutory framework

  1. [5]
    Rule 98 of the Industrial Relations (Tribunal) Rules 2011 (Qld) ('the IR Rules') provides an express power to join proceedings:
  1. (1)
    A party to a proceeding before the court of commission may apply to the court or commission for the proceeding to be joined with another proceeding.
  2. (2)
    The court or commission may order 2 or more proceedings to be joined if it considers -
  1. (a)
    substantially the same question is involved in the proceedings; or
  2. (b)
    the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
  3. (c)
    it is otherwise appropriate or desirable.
  1. (3)
    When joining proceedings, it is not necessary -
  1. (a)
    for a written order joining the proceedings to be made; or
  2. (b)
    for the parties to consent.
  1. (4)
    If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding. 

The Respondents' submissions

  1. [6]
    The Respondents seek to have the matters joined on the following grounds:
  • The Matters have a substantial overlap of factual issues and three different matters arising out of the one narrative[2].
  • The Commission's findings in the AD matters will seriously impact its findings in the GP matter (and vice versa).
  • There is no clear delineation between where the GP matter ends and the AD matters begin, as there are different alleged contraventions arising from many of the alleged facts.
  • To hear the GP matter separately involves relitigating many similar allegations with the same witnesses which is inefficient.
  • The risk of producing multiple decisions will result in inconsistent findings to the allegations and witness credit.
  • The matters will have eight key witnesses and perhaps many more. As such, it would be appropriate for witnesses to give all their evidence to the Commission once and have their credibility assessed by a single Commissioner.
  • Subsequently, having witnesses called multiple times to give similar evidence would be highly inefficient, incurring substantial unnecessary time and cost to the parties and the Commission.
  • The matters are interrelated because of the allegations of the Complainants due to the replica of similar allegations across different proceedings which would create substantial inefficiency and confusion around matters including disclosure, evidence processes and credibility findings.
  • If  joinder is granted, the hearing and management of the matters will be simplified.
  • The parties' consent is not required for the Commission to order Joinder as the Commission previously ordered joinder despite objections from Applicants considering efficiency.
  • Substantially the same questions are involved in the matters.
  • Resolving the issue will require the Commission to consider all relevant background, determine the reliability/credibility of various witnesses, and make findings about a range of interconnected disputed factual issues.
  • The prospect of multiple appeals with substantial delays[3].
  • The GP matter and the AD matters are in their interlocutory stages, and one is neither more advanced than the other which is a convenient time to join all matters[4]. Consequently, for the Applicant to run two matters is a very difficult territory for a lay advocate to navigate[5].
  • Hearing the matters twice in the circumstances will effectively be the cost on the public purse[6].

The Applicant's submissions

  1. [7]
    The Applicant's objections to the Application are outlined as follows:

Whilst we agree the Commissioner has unfettered discretion under r98 of the IR …we ask that the opinion of Justice Wilcox in Bishop Bridgland [sic] Securities be considered, "in my opinion, leave should be not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in any unfairness to any party".

…

  1. [8]
    The GP matter has a separate factual matrix to the AD matters for the following reasons:
  • The Applicants are different as Dr Sherlock is not an Applicant nor Respondent in the GP matter.
  • The timeframe is different, further submitting that:

…the General Protections case refers exclusively to adverse actions and misrepresentations AFTER Mr Smith took his complaint to the QHRC due to continued adverse actions whilst he awaited the investigative outcomes in 2022 whilst the PID reprisal case of Dr Sherlock dates back to incidents in 2020).

  • The legislative framework is different as Dr Sherlock's reprisal case is based upon protections offered under the PID Act from when Dr Sherlock requested protection in 2019. Additionally, when considering the reversal of onus in the GP Matter, the Applicants successfully argued that matters are not similar when considering requests for documents.
  • The Applicant’s discrimination case is based upon the AD Act regarding protections as the husband of a complainant under the PID Act and marital discriminations for actions in 2020.
  • The burden of proof onus is different as Dr Sherlock has the burden of proof whilst the State has the burden of the Applicant's  indirect discrimination case.
  • The Applicants' submission of non-party documents relevant to Dr Sherlock's reprisal complaint are not relevant to the GP Matter.
  • Whilst one person may be a common witness to the matters, the other witnesses for the cases are not similar to the facts in contention.
  • A higher likelihood of multiple appeals if the matters are joined due to the complexity of issues and the inherent injustice to the Applicant.
  • Efficiency is unlikely.
  • To join the matters would require another statement of facts and contentions and would further delay the substantive proceeding.
  • The Applicant and Dr Sherlock will both be inconvenienced by joining the cases as the Applicants expects an unrepresented litigant to demonstrate a level of preparation similar to the expertise of the Applicants.
  • There is considerable prejudice due to the Respondents' repeated requests for extensions and ignorance of page limits.
  • In the interest of fairness due to the Respondent's psychological injury, the substantive application needs to be progressed.
  • The matters have different legal issues.
  • The reversal of onus on the Respondents in the GP matter for the allegations pursuant to the substantive application is an important difference.
  • Finding the Applicant 'guilty' in one case does not affect the matter regarding misrepresentations raised in the GP Matter. Additionally, the credibility of Applicants may become an issue[7].
  • That the coffee cart incident is definitely part of the injury that occurred as a result of being threatened at work when Mr Smith had applied for a safety director's position.
  • The Respondent further submits that discrimination under 'General Protections' is not defined, and nor has it been under the Fair Work Act or the IR Act'.
  • There were no previous cases before the Commission that have attempted to put AD cases with GP cases as they are separate[8].

Consideration

  1. [9]
    The Commission's power to join matters is outlined in r 98 of the IR Rules. In addition, relevant case law broadly confirms the need to balance issues of convenience with ensuring fairness between the parties when considering whether matters should be joined.
  2. [10]
    In Brett Reynolds v The Workers' Compensation Regulator & Ors[9] ('Reynolds') Vice President O'Connor considered the principles applicable to an application for joinder. The Vice President referred to the following:
  1. [6]
    Whilst the authorities suggest that a number of factors have been considered relevant in exercising such a discretion there are no inflexible rules.
  1. [7]
    In Cameron v McBain Herring CJ wrote:
  1. The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.
  1. [8]
    In Bishop v Bridgeland Securities, Wilco J said:
  1. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.
  1. [11]
    In Reynolds, the Vice President adopted the principles applicable to a joinder application as identified by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd[10] ('Humphries'). The principles are addressed below.

Are the proceedings broadly of a similar nature?

  1. [12]
    Although Mr Smith is the Applicant in both AD/2022/86 and GP/2022/18, and the background to these proceedings may be similar, the proceedings are distinct. The issues in AD/2022/86 relate primarily to allegations of contraventions of the AD Act arising from the Applicant's relationship status, however the allegations in GP/2022/18 relate to alleged conduct by the Respondents following the Applicant's application to the Commission for an order pursuant to s 144 of the AD Act. I do not consider the proceedings to be broadly of a similar nature. Accordingly, in consideration of  r 98 (2)(a) of the IR Rules, I do not consider that substantially the same question is involved in both matters pursuant.

Are there issues of fact and law common to each proceeding?

  1. [13]
    The issues of facts and law are distinct in each proceeding. The AD matters relate to alleged contraventions of the AD Act and PID Act with the GP matter relating to alleged contraventions of the IR Act. Whilst the workplace context is the same, the issues of fact to be determined are different, with the GP matter relating solely, as I understand it, to actions taken by the Respondents following the hearing of an interlocutory application in the Commission by the Applicant. Along with the different statutory instruments, I note the reversal of onus in the GP matter under the IR Act.

Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

  1. [14]
    It is likely that a number of witnesses in the AD matters will also give evidence in the GP matter.

Is there a proposal of multiple appeals with substantial delays if the proceedings are not tried at the same time?

  1. [15]
    There is a possibility of multiple appeals if the proceedings are not tried at the same time, however it is not clear that this will result in substantial delays. It is entirely possible that allowing the matters to proceed separately will in fact reduce delays for particular parties who may not be the subject of any appeal.

Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

  1. [16]
    There is likely to be a saving of time if the proceedings are tried at the same time, however it is not clear that the time saved will be substantial. The different allegations made in the AD matters will require time to be heard separate to the those made in the GP matter. The time allocated to any joint hearing would need to be extended to take this into account. Consequently, it is likely that any time savings achieved as a consequence of a joinder will be minimal.

Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

  1. [17]
    An order that the matters be tried at the same time will in my view create difficulties in terms of trial management, particularly in circumstances where the Applicants in both the AD and GP matters are self-represented. There are likely to be difficulties given the enhanced complexity of procedural issues involving the substantially increased documentation involved in a joint hearing and potential difficulties in determining cross-admissibility of evidence.

Is one proceeding further advanced in terms of preparation for trial than the others?

  1. [18]
    It is not the case that one matter is further advanced in terms of preparation for trial.

Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

  1. [19]
    The Applicant will be inconvenienced if all matters are tried at the same time, primarily  as a consequence of the Applicant in AD/2022/87 acting as the representative of the Applicant in AD/2022/86 and GP/2022/18. I accept the submission by the Applicant in AD/2022/87 that her matter is in no way connected to the GP matter and consequently she will be inconvenienced by having the matters joined.
  2. [20]
    Rule 98 of the IR Rules confers upon the Commission a broad and unfettered discretion to join matters in circumstances where:
  • Substantially the same question is involved in the proceedings; or
  • The decision in one proceeding is likely to determine or seriously impact on the other proceedings; or
  • It is otherwise appropriate or desirable.
  1. [21]
    As outlined above at [14] I do not consider that substantially the same question is involved in the proceedings. Whilst the Respondents submit that the crux of the matters is whether the Respondents engaged in a course of unlawful conduct towards the Applicants, the nature of the alleged unlawful conduct is not substantially the same across all matters.
  1. [22]
    I am not satisfied that the decision in one of the proceedings is likely to determine or seriously impact the other proceedings. The actions to be considered in the GP matter are distinct from the actions undertaken in the AD matters.
  1. [23]
    It is accepted that joining the matters would result in a process that may be less costly. However, this factor must be balanced against the need to ensure that parties are not prejudiced or disadvantaged by joining the matters. In circumstances where the Applicant in AD/2022/87 is representing the Applicant in the joined matter of AD/2022/86 and GP/2022/18, I am not satisfied that the prejudice to the Applicants in managing the process to ensure a fair hearing is outweighed by these factors.

Conclusion

  1. [24]
    After consideration of the relevant factors and the submissions of all parties to both proceedings, I have formed the view that the proceedings should not be joined.
  2. [25]
    The application to join the proceedings is dismissed.

Order

  1. [26]
    I make the following order:

The application to join GP/2022/18 with AD/2022/86 & AD/2022/87 is dismissed.

Footnotes

[1] The Applicant in AD/2022/87 is Dr Sherlock and the Respondents are the State of Queensland and Dr  Thistlethwaite.

[2] T1.2, L 39; T1.3, L 9.

[3] T1.3, L 47.

[4] T1.5, L 1-2.

[5] T1.5- L7, 13-14.

[6] T1.5, L30.

[7] T1.10, L 10-11,

[8] T1.14, L 20-22.

[9] [2019] QIRC 140.

[10] [2009] FCA 699.

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Health) & Anor (No. 3)

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Health) (No. 3)

  • MNC:

    [2023] QIRC 211

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 Jul 2023

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
Humphries v Newport Quays Stage 2A Pty Ltd (2009) FCA 699
1 citation
Jump To
Cite 1 - (2009) FCA 699
Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 299
1 citation
Jump To
Cite 1 - [2009] FCA 299
Reynolds v Workers' Compensation Regulator [2019] QIRC 140
2 citations
Jump To
Cite 1 - [2019] QIRC 140
Cite 2 - [2019] QIRC 140

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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