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  4. Smith & Sherlock v State of Queensland (Queensland Health) (No. 5) - [2024] QIRC 121

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Smith & Sherlock v State of Queensland (Queensland Health) (No. 5)[2024] QIRC 121

Smith & Sherlock v State of Queensland (Queensland Health) (No. 5)[2024] QIRC 121

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No. 5) [2024] QIRC 121

PARTIES:

Smith, Paul Joseph

(First Complainant)

&

Sherlock, Susannah

(Second Complainant)

v

State of Queensland

(First Respondent)

&

Thistlethwaite, Kenneth

(Second Respondent)

&

Mapien Pty Ltd

(Third Respondent)

CASE NO.:

AD/2022/86 & AD/2022/87

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

17 May 2024

MEMBER:

Power IC

HEARD ON:

28 March 2024

ORDERS:

  1. 1.Pursuant to rule 64G(2)(c), the Notice of Non-Party Disclosure served on Mapien be set aside.
  2. 2.Pursuant to rule 46, the First Respondent disclose the relevant extract to the Complainants within 14 days.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – Application in existing proceedings – where the complainants filed a notice of non-party disclosure – where the nominated party and affected party objected to the notice of non-party disclosure – where the complainants sought a decision regarding the objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld)

LEGISLATION:

Anti-Discrimination Act 1991 (Qld)

Industrial Relations (Tribunals) Rules 2011 (Qld), rr 46, 64B, 64E, 64F and 64G

CASES:

Goldsmith v Sandilands [2002] HCA 31

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 3

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

Reasons for Decision

Introduction

  1. [1]
    The Complainants in matter AD/2022/86 ('Mr Smith') and AD/2022/87 ('Dr Sherlock') allege that the First and Second Respondents engaged in contraventions of the Anti‑Discrimination Act 1991 (Qld) during the Complainants’ employment at Metro North Hospital and Health Service (‘MNHHS’).
  1. [2]
    On 16 December 2022, Dr Sherlock filed and served a 'Form 29 - Notice of Non-Party Disclosure' ('the NNPD') on Mapien Consulting ('Mapien').
  1. [3]
    Both Mapien and the First and Second Respondents filed an objection to the notice on 22 December 2022 within the requisite 7 days pursuant to r 64E(4)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Tribunal Rules').  The objection operates as a stay on the notice pursuant to r 64F of the Tribunal Rules. Dr Sherlock emailed the Registry on 6 March 2024 seeking a determination on the outcome of the NNPD.
  1. [4]
    The matters AD/2022/86 and AD/2022/87 were joined by consent on 24 February 2023. Dr Sherlock is the Complainant in AD/2022/87 and the representative of the Complainant in AD/2022/86.
  1. [5]
    This matter has been held in abeyance pending the resolution of issues between the parties regarding the Complainants' Statement of Facts and Contentions ('SOFC'). Following the dismissal of the strike out application brought by the First and Second Respondents, this NNPD was listed for hearing.
  1. [6]
    The First Respondents' Submissions on Disclosure, filed on 11 April 2024, accurately outlined the background as follows:
  1. 1.At an interlocutory hearing on 28 March 2024, the Commission heard argument in respect of a notice of non-party disclosure by Assoc. Prof. Sherlock against 'Mapien Consulting'. That notice had been the subject of various objections filed by the First Respondent (the State) and Mapien Workplace Strategists (Mapien).
  2. 2.During the hearing, the State made concessions which resulted in the Commission directing that the State disclose the investigation report completed by Mapien (and commissioned by the State), dated 27 June 2022 (First Mapien Report). As referred to during oral argument, the First Mapien Report dealt with allegations which overlapped with some of the matters dealt with in the Complainants' fifth statement of facts and contentions (5 SOFC), and the Respondents' Response to the 5SOFC.
  3. 3.Also, in the course of oral argument, the State clarified that Mapien had completed a second report (Second Mapien Report), which the State's legal representatives were instructed dealt with a different issue, being whether MNHHS's Integrity Unit had appropriately dealt with various grievances of complaints that Assoc. Prof. Sherlock had raised with it.
  4. 4.To properly consider whether the Second Mapien Report was disclosable in the present proceeding, Power IC made an order requiring the State to provide a copy of the Second Mapien Report to her chambers as well as any submissions on the question of disclosure.

…[1]

  1. [7]
    The Order referred to above, issued on 28 March 2024, also directed that the First Mapien Report be disclosed to the Complainants by the First and Second Respondents and that in the absence of any objections from the parties, the decision would be determined on the papers.

Legislative framework

  1. [8]
    Rule 64E of the Tribunal Rules provides:

64E Objection to production

  1. (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.  
  2. (2)
    Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal.
  3. (3)
    The objection must –
  1. (a)
    be written; and
  2. (b)
    be served on the party; and
  3. (c)
    if the person objecting (the objector) is not the non-party - be served on the non‑party; and
  4. (d)
    clearly state the reasons for the objection.
  1. (4)
    The reasons may include, but are not limited to, the following –
  1. (a)
    if the objector is the non-party - the expense and inconvenience likely to be incurred by the non-party in complying with the notice;
  2. (b)
    the lack of relevance to the proceeding of the documents mentioned in the notice;
  3. (c)
    the lack of particularity with which the documents are described;
  4. (d)
    a claim of privilege;
  5. (e)
    the confidential nature of the documents or their contents;
  6. (f)
    the effect production would have on any person;
  7. (g)
    if the objector was not served with the notice - the fact that the objector should have been served.[2]
  1. [9]
    Rule 64F of the Tribunal Rules provides:

64F Objection stays notice

Service of an objection under rule 64E operates as a stay of the notice.[3]

  1. [10]
    Rule 46 of the Tribunal Rules provides:

46 Duty of disclosure

  1. (1)
    If a directions order requiring disclosure of documents is made, a party must disclose any document that—
  1. (a)
    is directly relevant to the proceeding or a matter in issue in the proceeding; and
  2. (b)
    is in, or comes into, the possession of the party.
  1. (2)
    A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
  2. (3)
    Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.[4]

Consideration

  1. [11]
    The First and Second Respondents object to the NNPD based on a lack of direct relevance of the Second Mapien Report, while Mapien opposes the application primarily due to the confidential nature of the document.
  1. [12]
    As stated above, the First Respondent has disclosed the First Mapien Report to the Complainants.
  1. [13]
    Rule 64B of the Tribunal Rules entitles the Complainants to require (by an NNPD) production of a document which inter alia is directly relevant to a matter in issue in the proceeding. In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) Commissioner Black stated the following:

"In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings.""[5]

  1. [14]
    In Goldsmith v Sandilands the High Court considered that evidence is relevant "…if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."[6]
  1. [15]
    A number of principles relevant to the task of considering an objection to disclosure were identified in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4):

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

  • A decision of the Commission to order disclosure is a quintessential exercise of discretion.
  • To be discoverable a document must relate to the question or issues to be decided by the proceedings.
  • A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of inquiry 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."[7]
  1. [16]
    The question of relevance was considered by President Davis in Mohr-Edgar v Legal Aid Queensland where he stated –

"To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings."[8]

  1. [17]
    To determine if the documents sought are directly relevant to the questions or issues to be decided by the proceedings, it is necessary to outline these questions or issues from the Complainants' SOFC.
  1. [18]
    The First Respondent outlined in their submissions a summary of contentions from the Complainants' SOFC. This summary broadly reflects the contentions contained within the Complainant's last SOFC, filed on 10 October 2023, (described by the Respondent as ‘5SOFC’) as follows[9] -
  1. (a)
    5SOFC [142] – that a permanent position filled by a temporary employee (Mr Campbell) ought to have been advertised. The failure to do so is said to amount to victimisation against Mr Smith under the Anti-Discrimination Act 1991 (Qld) (ADA).
  2. (b)
    5SOFC [143] – that a subsequent recruitment process, commenced in April 2022, was indirectly discriminatory toward Mr Smith. That is said to be on the basis that Mr Smith could not apply for the relevant role because of his relationship with Assoc. Prof. Sherlock.
  3. (c)
    5SOFC [144] – that the same recruitment process amounted to a reprisal against Mr Smith related to alleged public interest disclosures (PIDs) made by Assoc. Prof. Sherlock.
  4. (d)
    5SOFC [145] -  that the introduction of a roster arrangement to which Mr Smith and Assoc. Prof. Sherlock objected amounted to indirect discrimination (against both of them) having regard to their relationship status.
  5. (e)
    5SOFC [146] – that a statement made by Dr Thistlethwaite, to the effect that there was no continuing obligation upon MNHHS to provide Mr Smith with ongoing work, was victimisation against Mr Smith under the ADA.
  6. (f)
    5SOFC [147] – which seems merely to reproduce the substance of the allegation in 5SOFC [146].
  7. (g)
    5SOFC [148] – that an email which Dr Thistlethwaite wrote recording a conversation that he had with Assoc. Prof. Sherlock (about Mr Campbell's then-temporary appointment) amounted to victimisation against Mr Smith.
  8. (h)
    5SOFC [149] – that, in respect of a recruitment process that was ongoing in August 2021, Dr Thistlethwaite had told Mr Smith that he would appeal if Mr Smith were the successful candidate for the role. It is said that the alleged statement amounted to victimisation against Mr Smith.
  9. (i)
    5SOFC [150] – that, after Assoc. Prof. Sherlock had left the MNHHS Hyperbaric Unit, Dr Webb and Dr Thistlethwaite had told another staff member that Assoc. Prof. Sherlock had left 'under a cloud'. That conduct is said to amount to a reprisal against Assoc. Prof. Sherlock because she had made alleged PIDs.
  10. (j)
    5SOFC [151] – that in May 2021 and after Assoc. Prof. Sherlock's departure from the unit, Dr Mattiussi had interfered with her continuing to be credentialed to work at the Unit (at some later time). That alleged conduct is said to amount to victimisation against Assoc. Prof. Sherlock related to her alleged status as a person who made PIDs.
  1. [19]
    The Second Mapien Report investigated the management by Ms Lisa Todd of complaints made by Dr Sherlock over a period of time and relates to matters at the Hyperbaric Medicine Service ('HMS'), Royal Brisbane and Women's Hospital ('RBWH') at MNHHS.
  1. [20]
    The Second Mapien Report investigated specifically the following two allegations against Ms Todd –
  1. i)
    Inadequacy of an investigation regarding claims made by Dr Sherlock against Dr Webb relating to conduct towards a former registrar.
  2. ii)
    Failure to assess Dr Sherlock as a public interest discloser in relation to a number of matters.
  1. [21]
    The matters referred to as part of the second allegation include matters raised in the Complainants' SOFC, including the following –
  • Dr Thistlethwaite's conduct in relation to Mr Campbell's permanent appointment;
  • Dr Webb's conduct in allegedly misusing his authority or threatening to cause Assoc. Prof. Sherlock a detriment by preventing her from continuing to be credentialed at the Unit following her departure;
  • Dr Thistlethwaite's conduct in managing an alleged perceived conflict of interest on the part of Assoc. Prof. Sherlock; and
  • Alleged statements by Dr Webb and Dr Thistlethwaite to the effect that Assoc. Prof. Sherlock had left the Unit under a cloud.
  1. [22]
    As noted above at [11], the First Mapien Report has been disclosed to the Complainants. The matters outlined in the Second Mapien Report broadly replicate the material outlined in the First Mapien Report, with the addition of information regarding Ms Todd's handling of the complaints. The investigation into Ms Todd’s handling of the matter is not directly relevant to the Complainants' SOFC, with the potential exception of one reference in paragraph [27] of the Complainants' SOFC. 
  1. [23]
    In paragraph [27] of the Complainants' SOFC Dr Sherlock states that a meeting took place between herself and Ms Todd on 17 December 2019. Dr Sherlock states that she referred to earlier having made various complaints which she claimed amount to PIDs. 
  1. [24]
    The First Respondent attached an extract from the Second Mapien Report of Ms Todd's evidence to their Submissions on Disclosure of the Second Mapien Report, filed on 11 April 2024. That extract related to that meeting, and the First Respondent noted that this evidence came from Annexure N to the Second Mapien Report.
  1. [25]
    I note that the Complainants' SOFC includes a reference in paragraph [58a] in a partially completed sentence to an email from Ms Todd on 1 June 2021 promising an outcome to an investigation. This statement does not form the basis of any contentions and does not appear to relate to a matter in issue. 
  1. [26]
    In paragraph [151] of the Complainants' SOFC it is alleged that the State is vicariously liable for the contravening conduct of its employees. I accept the First Respondent's submission that the conduct of Ms Todd is not relied upon by the Complainants in this proceeding for the purposes of alleging discrimination, victimisation, or unlawful reprisals, noting that vicarious liability will not attach to a principal in the absence of a substantive underlying cause of action.
  1. [27]
    The Complainants' SOFC refers to Dr Sherlock's complaint to MNHHS and the Crime and Corruption Commission regarding the handling of reprisals on 22 June 2021 in paragraph [75] and noting that the CEO of the Crime and Corruption Commission engaged Mapien to conduct an investigation in paragraph [76]. It does not appear to be in dispute that this occurred. I also note that these paragraphs do not form the basis for alleged contraventions of the Anti-Discrimination Act 1991 (Qld), and vicarious liability as outlined in paragraph [151] is not claimed for the conduct in these paragraphs.
  1. [28]
    The First Mapien Report has been disclosed to the Complainants including annexed transcripts of interviews and statements. The annexures to the Second Mapien Report are identical, with the exception of three documents that relate to the investigation into Ms Todd's actions and an updated version of Annexure H 'Master List of Documents'. Annexure H to the First Mapien Report includes a list of documents numbered 1-73. Annexure H to the Second Mapien Report includes a list of documents numbered 1-74. The document labelled 74 is a document relevant to the investigation into Ms Todd's conduct. The other changes between the versions of Annexure H in the two reports appear to be primarily formatting in nature. I am not persuaded that the additional commentary in the Second Mapien Report and the additional document 74 relate to a matter in issue as outlined in the Complainants' SOFC.
  1. [29]
    The Complainants have not provided an adequate explanation as to why the correspondence between Mapien and MNHHS in relation to the investigation of reprisals to Dr Sherlock and Mr Paul Smith as a result of the public interest disclosure is directly relevant to a matter in issue.  In the absence of a reasonable explanation, I am not satisfied that such correspondence is directly relevant and accordingly there is no requirement that it be disclosed.
  1. [30]
    I have determined that the parts of the Second Mapien Report that the Complainants do not already have in their possession via the disclosure of the First Mapien Report are not directly relevant to a matter in issue in the proceeding. Accordingly, there is no requirement that the Second Mapien Report be disclosed, with the exception of the extract from Ms Todd's evidence in Annexure N to the Second Mapien Report ('the relevant extract') relating to the meeting of 17 December 2019 with Dr Sherlock.
  1. [31]
    I order accordingly –
  1. 1.Pursuant to rule 64G(2)(c), the Notice of Non-Party Disclosure served on Mapien be set aside.
  2. 2.Pursuant to rule 46, the First Respondent disclose the relevant extract to the Complainants within 14 days.

Footnotes

[1] First Respondent's submissions filed 11 April 2024, [1]-[4].

[2] Industrial Relations (Tribunals) Rules 2011 (Qld), r 64E.

[3] Industrial Relations (Tribunals) Rules 2011 (Qld), r 64F.

[4] Industrial Relations (Tribunals) Rules 2011 (Qld), r 46.

[5] Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 3, 28.

[6] Goldsmith v Sandilands [2002] HCA 31, 2.

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

[8] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025; citing Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276 at 282-3 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323 at [45].

[9] First Respondent's submissions filed 11 April 2024, [9].

Close

Editorial Notes

  • Published Case Name:

    Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No. 5)

  • Shortened Case Name:

    Smith & Sherlock v State of Queensland (Queensland Health) (No. 5)

  • MNC:

    [2024] QIRC 121

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    17 May 2024

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
Goldsmith v Sandilands [2002] HCA 31
2 citations
Jump To
Cite 1 - [2002] HCA 31
Cite 2 - [2002] HCA 31
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 3
2 citations
Jump To
Cite 1 - [2020] QIRC 3
Cite 2 - [2020] QIRC 3
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
1 citation
Jump To
Cite 1 - [2001] 1 Qd R 276
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75
2 citations
Jump To
Cite 1 - [2016] QIRC 75
Cite 2 - [2016] QIRC 75
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
1 citation
Jump To
Cite 1 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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