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Nicholls v State of Queensland (Department of Child Safety)[2024] QIRC 171

Nicholls v State of Queensland (Department of Child Safety)[2024] QIRC 171

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nicholls v State of Queensland (Department of Child Safety) [2024] QIRC 171

PARTIES: 

Nicholls, Jim Andrew

(Applicant)

v

State of Queensland (Department of Child Safety)

(Respondent)

CASE NO:

GP/2023/19

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

17 July 2024

HEARING DATE:

4 June 2024

MEMBER:

Butler IC

HEARD AT:

Brisbane

ORDER:

The application in existing proceedings filed 12 January 2024 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND –  GENERAL PROTECTIONS – Application in existing proceedings – where Applicant seeks further and better disclosure – where Respondent objects on grounds of relevance and adequacy of existing disclosure – where Applicant self-represented – application dismissed.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 36, sch 1

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

Industrial Relations Act 2016 (Qld) ss 282, 295, 306, 447, 531, 536

Uniform Civil Procedure Rules 1999 (Qld) r 215

CASES:

Anderson v BNP Paribas Securities Services [2015] FCCA 2231

Annear v Spotless Facility Services Pty Ltd (06 July 2015) [2015] FCCA 1335

Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2018] QCA 358

Bond v State of Queensland (No. 2) [2020] QIRC 78

Kape v The Golden Mile Loopline Railway Society Inc [2019] FCA 2063

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2021] 1 Qd R 276

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30

Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27

Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031

Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997)

Vink v LED Technologies Pty Ltd [2013] FCA 443

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Watton v TAFE Queensland (No. 2) [2021] QIRC 299

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

APPEARANCES:

Mr J Nicholls, the Applicant, appeared on their own behalf.

Ms J Muir of Counsel, instructed by Crown Law, on behalf of the Respondent.

Reasons for Decision

  1. [1]
    Mr Jim Nicholls has brought proceedings against State of Queensland (Department of Child Safety) alleging that it took adverse action against him for prohibited reasons, specifically discrimination on the grounds of age and sex, including both direct and indirect discrimination. The facts and circumstances giving rise to the proceedings relate to opportunities to undertake higher duties attracting a PO5 classification, and to seek permanency at that classification. The events transpired at a particular Child Safety Service Centre ('CSSC').
  2. [2]
    The parties are in dispute about whether the Respondent's disclosure has been adequate. By application filed 12 January 2024, Mr Nicholls seeks several additional documents or categories of documents. In respect of some documents of which copies have been provided to him, he seeks electronic files in their original formats, and metadata.
  3. [3]
    For the reasons set out in this decision I dismiss the application.

Disclosure

  1. [4]
    The Commission has the power to order production and inspection of documents.[1] Disclosure is not as of right; the duty of disclosure arises if a directions order requiring disclosure is made.[2]
  2. [5]
    In proceedings in the Commission disclosure is usually done by provision of lists of documents[3] and then production of copies of any documents requested by a party after receiving the list. However, this does not constrain the Commission's power to make orders for disclosure by other means, such as inspection of originals, or to make orders for further and better disclosure. Such orders are discretionary. The Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Industrial Relations (Tribunals) Rules') do not confer an entitlement on a party to require another party to produce original documents of which copies are disclosed.[4]
  3. [6]
    In this matter the Commission made orders for, among other things, disclosure, by directions order of 31 October 2023. That directions order superseded earlier directions orders.
  4. [7]
    On 30 November 2023 Mr Nicholls, who is self-represented, sought that an attendance notice for production of various documents or categories of documents be issued to the Respondent, and that notice was issued. The Respondent objected to that notice on 2 January 2024.[5] This did not disturb the parties' duty of disclosure.
  5. [8]
    The scope of an order for disclosure is documents that are "directly relevant to the proceeding or a matter in issue in the proceeding."[6] "Directly relevant" means something which tends to prove or disprove an allegation in issue in the proceedings.[7]
  6. [9]
    Where a document contains discoverable material, generally the whole of the document ought to be disclosed.[8] However, a disclosing party may argue that there are some considerations warranting redaction or partial production, such as personal information.[9]
  7. [10]
    A party seeking further or better disclosure "must establish that there are documents in the possession or power of the other party which are relevant to an issue in dispute which have not been disclosed by that other party."[10]

The matters in issue in the proceedings

  1. [11]
    Assessing direct relevance requires identifying the matters in issue in the proceeding, having regard to the parties' Statements of Facts and Contentions. Those documents' function is akin to that of pleadings.[11] In these proceedings,
    1. the Applicant's Statement of Facts and Contentions was filed 6 September 2023; and
    2. the Respondent's Statement of Facts and Contentions in Response was filed 14 November 2023.
  2. [12]
    Mr Nicholls is self-represented, and it is apparent his Statement of Facts and Contentions has not been drafted by a lawyer. In this Commission legal representation is not the default. I make the observation about Mr Nicholls' as a basis for indicating that some latitude should be given to him in relation to the drafting of this document.[12] That latitude is not unlimited, and the Respondent is entitled to fairness, including being fairly put on notice of the facts alleged and the cause or causes of action relied upon. At the same time the Commission should not take an overly technical approach to these documents, consistent with the requirements that the Commission is to be guided in its decisions by equity, good conscience, and the substantial merits of the case,[13] and that it must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Industrial Relations Act.[14]
  3. [13]
    In their Statements of Facts and Contentions, both Mr Nicholls and the Respondent refer to matters falling outside the scope of Mr Nicholls' claim. It is not necessary to deal with those matters for the purposes of this decision. Mr Nicholls also annexed various documents to his Statement of Facts and Contentions. I have not had regard to them, only to evidence provided on affidavit. Mr Nicholls has made a separate application for leave to amend his Statement of Facts and Contentions. That application has yet to be determined. This present application as to disclosure is determined on the state of the documents as filed on the dates listed above.
  4. [14]
    Before considering what matters the Statements of Facts and Contentions reveal to be in issue, I will first briefly describe the nature of the proceedings and the statutory provisions in reliance upon which they have been brought.

The nature of the proceedings

  1. [15]
    The substantive proceedings are brought pursuant to the general protections provisions of the Industrial Relations Act 2016 (Qld) ('the Industrial Relations Act'). Specifically, they are brought in reliance on section 295 of the Industrial Relations Act, which relevantly provides that an employer must not take adverse action against an employee  because of the employee's sex or age.[15] This prohibition is subject to some stated exclusions.[16]
  2. [16]
    'Adverse action' is defined in section 282 of the Industrial Relations Act which relevantly provides that an employer takes adverse action against an employee if the employer injures them in their employment, alters their position to their prejudice, or discriminates between the employee and other employees of the employer.[17] It includes threatening or organising to take such action.[18] It does not include action that is authorised under the Industrial Relations Act, any other law of Queensland, or any law of the Commonwealth.[19]
  3. [17]
    These provisions are consistent with the equivalent provisions in the Fair Work Act 2009, including section 351 which proscribes adverse action for discriminatory reasons.
  4. [18]
    In the definition of adverse action, the word "position" is not interchangeable with "role" or "job." Alteration of an employee's position to their prejudice is a broad concept.[20] It includes a loss of job security, and a deterioration in the "advantages enjoyed by an employee."[21] 
  5. [19]
    The references to discrimination in section 295 and section 282(1)(d) of the Industrial Relations Act clearly relate to direct discrimination and may also relate to conduct that 'is "facially neutral" but has a discriminatory effect.'[22]
  6. [20]
    Mr Nicholls' Statement of Facts and Contentions also refers to his having a workplace right to request to be permanently appointed. However, the Statement of Facts and Contentions does not claim that adverse action was taken because of that or any workplace right. Accordingly, there is presently no claim in reliance on section 285 of the Industrial Relations Act.

The matters in issue having regard to the Statements of Facts and Contentions

  1. [21]
    Mr Nicholls' claim is narrow. It goes to alleged specific incidences of adverse action. The alleged prohibited reasons for the action are among those proscribed by section 295. Having regard to the Statements of Facts and Contentions, I will describe the matters that are in issue.

Matters in issue – adverse action

  1. [22]
    It is in issue whether the cessation of Mr Nicholls' higher duties on 16 April 2023, which he describes as "vacating" him from "his" PO5 Senior Team Leader role, downgrading his position, and/or reducing his pay, constituted adverse action, in that the Respondent altered his position to his prejudice and/or discriminated against him.
  2. [23]
    It is in issue whether the Respondent took adverse action against Mr Nicholls by discriminating against him by:
    1. engaging Ms Clark in a PO5 Senior Team Leader role instead of him;
    2. having Ms Jones, a PO5, take over leadership of the Short-Term team that Mr Nicholls had led in Ms Clark's absence, when Ms Clark left in mid April 2023, instead of offering further higher duties to Mr Nicholls; and/or
    3. having Ms Churchward cover the role that Ms Jones had previously been expected to take in a different team, as higher duties, instead of offering further higher duties to Mr Nicholls.
  3. [24]
    It is in issue whether the Respondent took adverse action against Mr Nicholls by discriminating against him by running a further recruitment process for the role of Temporary Senior Team Leader in June to July 2023 that included as chair a person he had previously named before the Commission as being responsible for discriminating against him.
  4. [25]
    At hearing Mr Nicholls described the last alleged incidence of adverse action as follows:[23]

On the 20th of July 2023, the Department ran a sham interview process for my role as acting senior team leader, and discriminated between me and other employees. The prejudicial recruitment process included Ms Doogan as the panel chairman, and the regional director, Ms Belinda Edwards, as the delegate, both of whom, one month previously, I had named in my application to this Commission as persons responsible for discriminating against me.

  1. [26]
    He gave a similar description in his written submissions.[24] However, the incidence was more narrowly described in his Statement of Facts and Contentions:[25]

The Department took adverse action against me by its appointment of Ms Doogan to chair the interview panel I attended on 20th July 2023; one month after I had filed my initial application to the commission naming Ms Doogan as a person responsible for discriminating against me. In appointing Ms Doogan to oversee the interviews for the role of temporary senior team leader, the Department's actions were discriminatory and prejudicial, serving to render that process unpalatable for me.

  1. [27]
    Accordingly, I have treated this incidence as relating to the appointment of Ms Doogan as chair.
  2. [28]
    In his submissions at hearing Mr Nicholls also referred to an alleged failure to provide adequate professional supervision as being an incidence of adverse action. Mr Nicholls' Statement of Facts and Contentions refers to his view that the Department had failed to provide him with scheduled professional supervision, and that that prejudiced his claim to permanency.[26] Given the specific content of the disclosure requests the subject of this application it is not necessary for me to decide whether the Statement of Facts and Contentions sufficiently clearly articulates this alleged failure to have been an incidence of adverse action.

Matters in issue – prohibited reasons

  1. [29]
    For each of the incidences of adverse action alleged, it is in issue whether, if the Respondent took such adverse action, it did so for reasons including Mr Nicholls' sex and/or age.
  2. [30]
    It is also in issue:
    1. whether the Respondent took such adverse action for reasons including Mr Nicholls' wealth, which, being a correlate of being male and older, constituted discrimination on the ground of sex and/or age; and
    2. whether such a claim is available under the general protections provisions of the Industrial Relations Act.
  3. [31]
    This latter issue is based on a somewhat novel claim of indirect discrimination. Novelty notwithstanding it is open to Mr Nicholls to attempt to use the general protections provisions to bring such a claim.

Other matters in issue – detriment, remedy

  1. [32]
    There may also be matters in issue as to detriment suffered or other questions relevant to remedy. It is not necessary to consider this for the purposes of the present disclosure application.

Parties' submissions and materials

  1. [33]
    Mr Nicholls filed submissions on 11 March 2024. The Respondent filed submissions on 3 April 2024. By leave Mr Nicholls filed written submissions in reply on 5 April 2024. On 3 June 2024, the Respondent filed a solicitor's affidavit affirmed 31 May 2024 in relation to its discharge of its disclosure obligations. The application was heard on 4 June 2024. By consent Mr Nicholls made closing submissions in reply in writing, filed 24 June 2024.
  2. [34]
    I listened carefully to the parties at hearing and read their submissions closely. Save to say that the submissions substantially went to the existence of documents, the adequacy of existing disclosure both in relation to whether the Respondent had any more documents to give and whether it should be required to provide electronic documents in their original formats, and relevance, I will not summarise the submissions here, but will instead refer to them as necessary in the course of my consideration.
  3. [35]
    In their submissions the parties touched on the issue of legal professional privilege. The Respondent stated it had made a privilege claim "in general terms in Part 2 of the Schedule to its List of Documents."[27] Mr Nicholls stated that the Respondent had made a "sweeping and unsupported" claim to privilege and had at no point detailed "the substance necessary to itemise and validate" such a claim.[28] However, the parties' submissions have not identified any specific claim of privilege or any specific objection to such a claim for me to consider. The approved form for a List of Documents[29] requires a party claiming privilege to itemise documents that a party objects to produce on the ground of privilege. For each document in respect of which a claim of privilege has been made, the party should state a description of the document, the person who made the document, and its date. If the Respondent has not done so, but instead has made a general claim of privilege without reference to specific documents, it should attend to that. If the Respondent has done so, and Mr Nicholls wishes to object to any privilege claim, he can make application accordingly. In the absence of specificity, it is not necessary for me to consider the issue of privilege further.

Consideration

  1. [36]
    By his application for further and better disclosure of 12 January 2024 Mr Nicholls seeks several documents, or categories of documents, as well as metadata or files in their original format for some documents already provided. Some of the requests are listed in the application and some are incorporated by reference to the previous attendance notice to produce. I will take each request that is still being pressed in turn. I will then address the request for metadata in relation to documents of which copies have already been disclosed.

Documents about the February EOI process

  1. [37]
    It is common ground between the parties that the Respondent conducted an Expressions of Interest process in February 2023 ('the February EOI process') and that Mr Nicholls did not submit an application in that process.
  2. [38]
    Mr Nicholls is pursuing better discovery in relation to Ms Jones' successful application in the February EOI process. Specifically he seeks:

All evidence the successful application for the Senior Team Leader EOI advertised on 16th February 2023 to backfill Ms Doogan's STL position, was conforming to the required format:

  1. a.
    two-page cover letter addressing the selection criteria,
  1. b.
    attached curriculum vitae,
  1. c.
    evidence all application time parameters were properly met,
  1. d.
    documented record of the departments reasons for making its selection;  and
  1. e.
    this to include all electronic send and receipt time and dates stamps.
  1. [39]
    The Respondent has already disclosed a copy of Ms Jones' application to Mr Nicholls. Mr Nicholls wants the email by which it was sent, with any attachments included, in its original .eml or .msg format.
  2. [40]
    Mr Nicholls also makes some more general requests, as follows:

All communication, before, after and about the February application process, between Melinda Doogan and Hayley Jones regarding the application / process.

and:

All communication between the A/Manager Melinda Doogan, Regional Director Belinda Edwards and Regional Executive Director Tracey Ryan regarding the February application process. I want to see from the correspondence that the requirements of the Recruitment and Selection Directive (12120) have been fulfilled. Again, please provide these in the original ".msg" (for Outlook) or ".eml"  formats.

  1. [41]
    The Respondent says, in relation to these requests, that it has been unable to locate any further documents which have not already been disclosed to Mr Nicholls that are relevant and otherwise disclosable.[30]
  2. [42]
    Mr Nicholls also seeks "professional supervision notes" regarding Ms Doogan (Acting Manager) and Ms Edwards (Regional Director) in relation to the February EOI process:

Professional supervision notes for Ms Doogan and Ms Edwards with their respective supervisors as these relate to the February recruitment process.

  1. [43]
    Again, in relation to this request, the Respondent says it has been unable to locate any further documents which have not already been disclosed to Mr Nicholls that are relevant and otherwise disclosable.[31]
  2. [44]
    When Ms Clark left in mid-April 2023, Mr Nicholls assumed he would continue his higher duties which had been attributed to her position. That did not happen. The relevant issues are whether this constituted adverse action and if so, if it was taken for reasons including a prohibited reason or reasons.
  3. [45]
    It is common ground that Ms Jones had been the successful candidate in the February EOI process. The Respondent says that for reasons related to the CSSC from which she was working at the time, she was not available to commence until 17 April 2023.
  4. [46]
    The Respondent says Ms Churchward had been second in the order of merit in the February EOI process. It says Ms Churchward was on higher duties at the time of that process, and that on 24 February 2023 her higher duties term was extended to June 2023. It says this extension was so that she could fill Senior Team Leaders' upcoming leave, including for Mr Nicholls, a Ms Danaher who worked in a PO5 Senior Team Leader position in the Transition to Adulthood team, and a Ms Moore. It says that Ms Edwards approved this extension.
  5. [47]
    Mr Nicholls had been on higher duties since 2021 and, as at February 2023 through April 2023, his higher duties appointment was attributed to Ms Clark's substantive PO5 position. It is common ground that Ms Clark was slated to replace him on her return from parental leave. In that regard the Respondent says:
    1. on 13 March 2023 Ms Clark advised she would be returning from parental leave on 4 April 2023 but the Respondent did not know whether she would return on a full time basis, and the Respondent communicated this to Mr Nicholls on the same day;
    2. on 17 March 2023 Ms Clark advised she would return to her substantive position on a full time basis, and the same day, the Respondent advised Mr Nicholls that Ms Clark would be returning on 4 April 2023 and his higher duties would end on 16 April 2023; and
    3. on 4 April 2023, Ms Clark returned to work, and Mr Nicholls remained on higher duties to facilitate a handover.
  6. [48]
    Mr Nicholls says on 12 April 2023, four days before his extension in the role was due to conclude, Ms Clark obtained a different role at another CSSC, meaning she would not take up the role Mr Nicholls was occupying as had previously been anticipated. The Respondent:
    1. agrees that on 12 April 2023 Ms Clark secured a role, namely higher duties as an Acting Senior Practitioner, at another CSSC commencing on 18 April 2023; and
    2. says it was anticipated she would return afterwards.
  7. [49]
    Mr Nicholls says he expected to then continue in the Senior Team Leader role that he was occupying at the time. The parties agree that on 13 April 2023 he emailed the Acting Manager Ms Doogan, requesting that occur.
  8. [50]
    Mr Nicholls says on 16 April 2023 his term as acting team leader expired and he was "abruptly vacated." The Respondent agrees that the higher duties ended on 16 April 2023, and says that the higher duties ended because of Ms Clark's return from parental leave.
  9. [51]
    Mr Nicholls says Ms Jones took up the role that he had been occupying, and Ms Clark had been expected to occupy, instead of the equivalent role that Ms Churchward had been occupying. He says Ms Churchward filled the ensuing vacancy in the other short-term team.
  10. [52]
    The Respondent says[32] Ms Doogan conveyed to Mr Nicholls on 17 April 2023 that:
    1. he would be returning to his substantive position from that date;
    2. Ms Jones had been successful in the February EOI process but had not been available to start until that date;
    3. Ms Edwards had approved Ms Churchward to undertake backfilling until June 2023; and
    4. no further Senior Team Leaders were required for operational reasons.
  11. [53]
    The Respondent says it filled "the" vacant PO5 Senior Team Leader role using the merit list from the February EOI process. This may be a reference to the role that Ms Clark vacated when she took up the opportunity at another CSSC in April 2023. 
  12. [54]
    The foregoing raises some obvious questions:
    1. At some point after the February EOI process but before Ms Clark's departure, the Respondent would have anticipated that from 17 April 2023:
      1. (i)
        Ms Clark would be leading the team in which Mr Nicholls worked; and
      1. (ii)
        Ms Jones would be back at this same CSSC in a role not occupied by Ms Clark.

Why, then, did Ms Jones replace Ms Clark when the latter departed in mid-April?

  1. At some point between 24 February 2023 and 12 April 2023, the Respondent had apparently held the view that it required, at least three people in PO5 roles, namely:
    1. (i)
      Ms Clark from her return to work;
    1. (ii)
      Ms Jones from 17 April; and
    1. (iii)
      Ms Churchward at least until June 2023.

Why then, when Ms Clark departed in mid-April, did the Respondent decide it now needed only Ms Jones and Ms Churchward in PO5 roles?

  1. [55]
    If, without deciding, the failure to provide Mr Nicholls with a further higher duties opportunity when Ms Clark departed constituted adverse action, then the answers to the foregoing questions will go to the reason or reasons for such action. If Mr Nicholls proves adverse action was taken, it will be for the Respondent to prove that it did not take the adverse action for reasons including his age or sex.[33]
  2. [56]
    The Respondent says that Ms Doogan told Mr Nicholls on 17 April 2023 that no further Senior Team Leaders were required "for operational reasons." On my reading of its Statement of Facts and Contentions the Respondent does not make clear whether Ms Doogan was the effective decision-maker in this regard, just that she was the person who conveyed the decision to Mr Nicholls. Nor does the Respondent's Statement of Facts and Contentions, on my reading, elaborate on the operational reasons.
  3. [57]
    None of those questions, and none of the matters in issue in these proceedings, require an inquiry into the validity or fairness of the February EOI process. These proceedings are not a general inquiry into the validity of the February EOI process. The issue is whether adverse action was taken for a prohibited reason or reasons, and not whether the reasons for the alleged contravention were otherwise fair or soundly based.[34]
  4. [58]
    The Respondent has not pleaded the exclusion in section 282(6) in relation to the events of mid-April 2023, so the question of whether any incident of alleged adverse action was authorised by a law of the State is not in issue. If it had done so, that may, without deciding, have put in issue the lawfulness or validity of the February EOI process.
  5. [59]
    The February EOI process's relevance is only that its outcomes may have affected who got PO5 roles in April 2023. Whether or not the process had been conducted properly does not assist in proving or disproving the allegations as to adverse action or prohibited reasons in relation to Mr Nicholls not getting higher duties work after 16 April 2023. Nor does the question of whether Ms Jones' application was compliant with any procedural requirements.
  6. [60]
    Mr Nicholls submits these materials form part of a continuum with the decisions made in mid-April. That does not meet the test for direct relevance.
  7. [61]
    The Respondent has already disclosed some documents that are within the scope of this request. It submits and I accept that it has not, by doing so, acquiesced in the request and thereby waived any right to object on grounds of direct relevance. It says, and I agree, that providing documents that may not have been required to be provided under "direct relevance" is not analogous to waiving privilege.[35]

Documents regarding the June-July EOI process

  1. [62]
    Mr Nicholls also seeks documents regarding the June-July EOI process. As indicated above the matters in issue, in relation to this process, include:
    1. Whether the Respondent took adverse action against Mr Nicholls by discriminating against him by running a further recruitment process for the role of Temporary Senior Team Leader in June to July 2023 that included as chair a person he had previously named before the Commission as being responsible for discriminating against him.
    2. If so, was that action taken for reasons including a prohibited reason or reasons (in this case age and/or sex).
  2. [63]
    Mr Nicholls seeks:

All evidence the applications for the Senior Team Leader EOI advertised on 2nd June 2023 were conforming to the required format:

a. two-page cover letter addressing the selection criteria,

b. attached curriculum vitae,

c. evidence all application time parameters were properly met,

d. documented record of the departments reasons for making its selection;  and

e. this to include all electronic send and receipt time and dates stamps.

  1. [64]
    Mr Nicholls was involved in the June-July EOI process. That process was discontinued. A new process was subsequently commenced.
  2. [65]
    I do not consider that documents covered by the above request would tend to prove or disprove the allegation that the Respondent discriminated against Mr Nicholls by running the June-July EOI process that included as chair a person he had previously named before the Commission as being responsible for discriminating against him.
  3. [66]
    Mr Nicholls also seeks:

A[ny] contemporaneous recorded rationale for suspending the recruitment process (EOI advertised on 2nd June 2023) for "operational reasons" (sic).

  1. [67]
    In Mr Nicholls' Statement of Facts and Contentions, the claim of adverse action made in relation to this process is about the appointment of Ms Doogan to it. Mr Nicholls has not claimed that the suspension of the June-July EOI process constituted adverse action.
  2. [68]
    He says this request goes to whether there had been some reflection that the process had been discriminatory.[36] Having regard to that submission, it is arguable that if there are any documents falling within the scope of this request, they could tend to prove or disprove the allegation that the Respondent discriminated against Mr Nicholls by running the June-July EOI process that included as chair a person he had previously named before the Commission as being responsible for discriminating against him. However, Mr Nicholls has not identified any such documents. For its part the Respondent says it has been unable to locate any further documents which have not already been disclosed to Mr Nicholls that are relevant, and otherwise disclosable.[37]
  3. [69]
    Mr Nicholls submits that if there are no other documents an inference should be drawn.[38] That is an issue he can pursue at hearing but does not assist in relation to this application for further and better disclosure.

Records regarding appointment of Ms Doogan to chair the process

  1. [70]
    Mr Nicholls seeks:

All records pertaining to the appointment of Ms Doogan as chairperson of the interview panel to include all electronic send and receipt time and date stamps.

  1. [71]
    Documents pertaining to the appointment of Ms Doogan to the interview panel are clearly relevant and should be disclosed to Mr Nicholls, absent any valid claim of privilege.
  2. [72]
    Again, in relation to this request, the Respondent says it has been unable to locate any further documents which have not already been disclosed to Mr Nicholls that are relevant and otherwise disclosable.[39] At hearing it was able to identify various documents it had already disclosed that it considered would fall within the scope of this request.[40] Where such documents were in the form of emails, it said the documents revealed the date and time they were sent.
  3. [73]
    In contrast Mr Nicholls submits that no documents have been disclosed in relation to this request.[41] He submits that if there are no documents to be produced in response to this request an inference should be drawn.[42] As indicated above that is an issue he can pursue at hearing but does not assist in relation to this application for further and better disclosure.

CSSC management and leadership meeting minutes

  1. [74]
    Mr Nicholls requested all Management and Leadership Meeting Minutes for the tenure of Manager Doogan's role as A/Manager up to 16 April 2023.
  2. [75]
    The Respondent took issue with this request on the grounds of relevance.[43]
  3. [76]
    Mr Nicholls said there had been "lengthy discussions around shortcomings in the centre's recruitment processes" at the meetings. He said there were concerns that he had been rolled over three times and had not had a proper process. He said that at one of these meetings Ms Doogan relayed that Ms Edwards had said that they needed to have proper processes going forwards.[44]
  4. [77]
    Again, these proceedings are not a broad inquiry into the validity or compliance of the recruitment procedures. The same relevance considerations apply here as to the documents relating to the February EOI process. However, to the extent this request covers the period between Ms Clark indicating she would be leaving to take up a role at a different centre and Ms Jones taking up the role following Ms Clark's departure, the Respondent conceded at hearing that such documents could be relevant.[45]
  5. [78]
    At hearing the Respondent's representatives said they would take further instructions and would indicate, within two weeks, whether any such documents existed and if so whether they had been disclosed, or whether there was some further objection to disclosing them.[46] Mr Nicholls consented to that course of action.[47] The Respondent subsequently wrote to the Commission and Mr Nicholls on 18 June 2024.
  6. [79]
    In his submissions of 24 June 2024 Mr Nicholls said this request is no longer required to be pressed, following disclosure made on 18 June 2024.

Carlson report

  1. [80]
    At the hearing, by consent, Mr Nicholls amended his application to include a further request for disclosure, specifically for a report in relation by a Mr Carlson of March 2024 referred to as "the professional standards report."
  2. [81]
    Counsel for the Respondent said this report related to whether the appointment of Ms Doogan to the interview panel in the June-July EOI process gave rise to a conflict of interest or whether there was any infringement of any internal protocol or procedure.[48] She also said:
    1. the report does not consider the question of why the people Mr Nicholls complains about were appointed to the panel;[49]
    2. the report contained no transcripts of interviews with witnesses; and
    3. any source documents annexed to the report had already been disclosed.
  3. [82]
    I appreciate the foregoing were statements from the bar table. They were not contested and there was no evidence in the affidavit material before me about this report. In the absence of any evidence to the contrary I accept that the report involved a desktop review.
  4. [83]
    The Respondent submitted that Mr Carlson's opinion on an issue of law or of compliance with internal documents is not relevant to (in the sense of tending to prove or disprove) any matters in issue in these proceedings, and would not be admissible.[50] I agree.
  5. [84]
    Mr Nicholls has not established this report is relevant to an issue in dispute. If any of the annexures are relevant, he has not established that the disclosure of them has been inadequate.

Previous requests, not pressed

  1. [85]
    Some of the requests the subject of the application were no longer pressed by the date of the hearing. Accordingly, I have not considered them in these reasons.
  2. [86]
    One of those requests that the Applicant confirmed he no longer pressed related to a record of a meeting of 27 April 2024.[51] He made submissions alleging the Respondent had lost the original record and that the Commission should draw an inference in that regard.[52] Again, this does not take us very far in relation to the disclosure application and is something that can be ventilated through the hearing process.

Metadata

  1. [87]
    Some of Mr Nicholls' requests related to the provision of metadata.
  2. [88]
    As stated above, where a document is susceptible to disclosure generally the whole of the document should be disclosed. The term "document" is defined in the Acts Interpretation Act 1954 (Qld) and includes among other things an electronic document.[53] "Electronic document" is also defined, and is a term with a broad scope.[54]
  3. [89]
    When an electronic file is opened in an application used for a file of its type it may show up on screen as something that looks like a page, or take some other familiar form. For example, if a file in portable document format (a PDF) is viewed electronically in a PDF reader, or when it is printed, one would ordinarily see something that looks like a page or image. The page or image is of course not the whole electronic file, which also contains, among other things, metadata. Also, looking at the page or image is not the only way to view the PDF; if it is opened in a text editor, for example, it looks like lines of text characters. Effecting disclosure by simply printing all of those lines of characters would be far from adequate. Yet it is still the same file.
  4. [90]
    In my view it is the PDF file per se that is the electronic document, not just the visual representation of a page, image, or similar, that appears when the PDF is viewed in an application usually used for viewing PDFs. That necessitates the conclusion that a file's metadata is part of the electronic document rather than constituting a separate electronic document.
  5. [91]
    It follows that disclosure of a print-out of the PDF might not, in the fullest sense, be disclosure of the whole document. However, I will take the term "whole document" when used in relation to disclosure of an electronic document to generally refer to all of the pages or slides, or an entire email, or the whole of a video or audio recording, or the whole of a still image, or similar, without cropping, abridgement, or redaction other than as agreed or as permitted by the Commission. Any other approach would unnecessarily complicate, and increase the burden of, disclosure.
  6. [92]
    As disclosure in Commission proceedings is routinely made by provision of lists of documents and copies of any requested documents, it is unremarkable that copies of text- or image-based documents are generally provided in the form in which they are generally visible when viewed in an application ordinarily used for opening files of their type, or when printed.
  7. [93]
    A person seeking that the Commission make an order for better disclosure on the basis that some component part of the electronic document, such as metadata, has not been provided will need to persuade the Commission that any existing disclosure of the document, for example by way of provision of a copy, is inadequate. That will involve considerations including direct relevance and the cost or oppressiveness of further disclosure.[55]
  8. [94]
    I do not accept the Respondent's submission[56] that metadata or the original formats of electronic documents are relevant only where there is a basis for believing it has interfered with evidence.
  9. [95]
    For example, the identity of the effective decision-maker (or decision-makers) will be of central importance in determining the reasons for the adverse action, if the adverse action is established. The Respondent says the decision-makers need to give direct evidence to rebut the 'reverse onus' that arises if adverse action is proved.[57] There is no present agreement, between the parties, on the face of their Statements of Facts and Contentions, as to who made the various decisions that are in issue (including, for example, the decision to have Ms Jones take over from Ms Clark when she left, or the decision to appoint Ms Doogan to the interview panel). For the purposes of deciding this application about disclosure it is not necessary for me to consider whether the parties' Statements of Fact and Contentions are clear enough in relation to these questions. It is sufficient to note that the identity of the decision-maker or decision-makers is in issue as part of the broader question of the reasons for the action, which arises if adverse action can be established.  If there are any disclosed documents for which the metadata tends to prove or disprove any allegations in issue, such as who was involved in the decision-making, that metadata would be relevant, without any question of "interference" in the material arising.
  10. [96]
    However, where disclosure has been made, I would not exercise the discretion to order better disclosure – for example, by inspection of originals, provision of electronic documents in native formats, or print-outs of metadata – unless satisfied that the existing disclosure had been inadequate. If the metadata concerned merely reflects information already shown on the document's face, such as times and dates on print-outs of emails, then existing disclosure by provision of copies is likely to be adequate.
  11. [97]
    In this application Mr Nicholls has sought some metadata regarding time and date stamps for emails. In the absence of any evidence of any basis to look behind the times and dates on the face of the printed emails, I am not satisfied that disclosure of such documents has been inadequate.
  12. [98]
    One of the documents disclosed was a form signed by three panel appointees, including Ms Doogan, in relation to conflict of interest. I am told the document was an electronic document, in portable document format (a PDF). There was an issue as to whether the PDF's metadata ought also to be disclosed. In his closing submissions Mr Nicholls relinquished his request for metadata specifically in respect of this document.
  13. [99]
    The metadata sought by Mr Nicholls in this application is in relation to documents or categories of documents that he has not established are directly relevant in the first place, such as the documents regarding the applications made by others in the EOI processes. If a document is not directly relevant on its face, it may be unlikely that the metadata sitting behind that face would be directly relevant. Regardless, in this application, the arguments for production of metadata all proceed on the basis that the documents, of which such metadata forms part, are directly relevant on their face. Accordingly, where I have not found those documents to be directly relevant, I have also not made any orders for production of metadata.

Conclusion

  1. [100]
    Mr Nicholls has not established, in relation to the various requests advanced in this application, that there are documents in the possession or power of the Respondent which are relevant to an issue in dispute, but which have not been disclosed by the Respondent. Accordingly and for the reasons stated above I dismiss the application in existing proceedings.

Order

  1. [101]
    It is ordered that:

The application in existing proceedings filed 12 January 2024 is dismissed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 536(f) ('Industrial Relations Act'); Industrial Relations (Tribunals) Rules 2011 (Qld) r 41(o) and (p) ('Industrial Relations (Tribunals) Rules').

[2] Industrial Relations (Tribunals) Rules r 46.

[3] There is an approved form, Form 23.

[4] In contrast to the position under r 215 of the Uniform Civil Procedure Rules 1999 (Qld).

[5] T 1-67, ll 13-14.

[6] Industrial Relations (Tribunals) Rules r 46(1)(a).

[7] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25 per Davis J at [42]; citing Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2021] 1 Qd R 276, 282 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, 45.

[8] Bond v State of Queensland (No. 2) [2020] QIRC 78 per Dwyer IC applying Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40 per Mackenzie J.

[9] See the consideration of Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, per McLelland CJ in Eq, 10 February 1997) in Menkens v Wintour, ibid, at [12].

[10] Watton v TAFE Queensland (No. 2) [2021] QIRC 299, per Hartigan IC as Her Honour then was, [9].

[11] Watton v TAFE Queensland (No. 2), ibid, [11].

[12] Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2018] QCA 358 per Fraser J with whom Morrison JA and Flanagan J agreed, at [6].

[13] Industrial Relations Act s 531(3).

[14] Industrial Relations Act s 447(2)(b).

[15] Industrial Relations Act s 295(1).

[16] Industrial Relations Act s 295(2).

[17] Industrial Relations Act s 282(1).

[18] Industrial Relations Act s 282(5).

[19] Industrial Relations Act s 282(6).

[20] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27, per Mortimer J at [133].

[21] Sayed v Construction, Forestry, Mining and Energy Union, ibid, at [133] applying Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30, [4] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; [2001] FCA 267, [17]- [20].

[22] Sayed v Construction, Forestry, Mining and Energy Union, ibid, at [155] citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 358 per Mason CJ and Gaudron J.

[23] T 1-13, ll 18-20.

[24] Applicant's Written Submissions filed 11 March 2024, at [17].

[25] Applicant's Statement of Facts and Contentions, [45].

[26] Applicant's Statement of Facts and Contentions, [44].

[27] Respondent's Written Submissions filed 3 April 2024, at [25].

[28] Applicant's Written Submissions in Reply filed 5 April 2024.

[29] Form 23.

[30] Affidavit of Ms Gray affirmed 31 May 2024, at [16].

[31] Affidavit of Ms Gray affirmed 31 May 2024, at [16].

[32] Respondent's Statement of Facts and Contentions, at [29]. That paragraph does not state whether Ms Doogan had been the decision-maker in that regard or whether she was conveying decisions made by someone else.

[33] Industrial Relations Act s 306.

[34] Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031 at [21] per Lucev J citing Kape v The Golden Mile Loopline Railway Society Inc [2019] FCA 2063 at [36]-[37] per Colvin J; Vink v LED Technologies Pty Ltd [2013] FCA 443 at [45] per Tracey J; Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457 at [38] per Marshall J. See also Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy and Reeves JJ; Anderson v BNP Paribas Securities Services [2015] FCCA 2231 at [20] per Driver J; Annear v Spotless Facility Services Pty Ltd (06 July 2015) [2015] FCCA 1335 at [99] per O'Sullivan J.

[35] T 1-59.

[36] T 1-36, ll 9-14; Applicant's Written Submissions filed 11 March 2024, at [43].

[37] Affidavit of Ms Gray affirmed 31 May 2024, at [15].

[38] Applicant's Written Closing Submissions filed 24 June 2024, at [33].

[39] Affidavit of Ms Gray affirmed 31 May 2024, at [17].

[40] T 1-61, ll 45; T 1-63, ll 10-49; T 1-64, ll 18-32.

[41] Applicant's Written Closing Submissions filed 24 June 2024, at [34].

[42] Applicant's Written Closing Submissions filed 24 June 2024, at [34].

[43] Respondent's Submissions at [29].

[44] T 1-39, ll 21-28.

[45] T 1-65, l 33.

[46] T 1-66, ll 34-47.

[47] T 1-67, l 6.

[48] T 1-52, ll 10-16.

[49] T 1-54, ll 48-49; T 1-55, ll 1-4.

[50] T 1-58, ll 23-26.

[51] T 1-41, l 8.

[52] Applicant's Written Closing Submissions filed 24 June 2024, at [28].

[53] Acts Interpretation Act 1954 (Qld), s 36 and schedule 1.

[54] Ibid.

[55] Menkens v Wintour, ibid, at [12].

[56] Respondent's Written Submissions filed 3 April 2024, at [30].

[57] T 1-7, ll 6-7.

Close

Editorial Notes

  • Published Case Name:

    Nicholls v State of Queensland (Department of Child Safety)

  • Shortened Case Name:

    Nicholls v State of Queensland (Department of Child Safety)

  • MNC:

    [2024] QIRC 171

  • Court:

    QIRC

  • Judge(s):

    Butler IC

  • Date:

    17 Jul 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
Anderson v BNP Paribas Securities Services [2015] FCCA 2231
2 citations
Jump To
Cite 1 - [2015] FCCA 2231
Cite 2 - [2015] FCCA 2231
Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335
2 citations
Jump To
Cite 1 - [2015] FCCA 1335
Cite 2 - [2015] FCCA 1335
Bentleys (Sunshine Coast) Pty Ltd v Thomson [2018] QCA 358
2 citations
Jump To
Cite 1 - [2018] QCA 358
Cite 2 - [2018] QCA 358
Bond v State of Queensland (No. 2) [2020] QIRC 78
2 citations
Jump To
Cite 1 - [2020] QIRC 78
Cite 2 - [2020] QIRC 78
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
1 citation
Jump To
Cite 1 - (2001) 107 FCR 93
Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267
1 citation
Jump To
Cite 1 - [2001] FCA 267
Kape v The Golden Mile Loopline Railway Society Inc [2019] FCA 2063
1 citation
Jump To
Cite 1 - [2019] FCA 2063
Khiani v Australian Bureau of Statistics [2011] FCA FC 109
2 citations
Jump To
Cite 1 - [2011] FCA FC 109
Cite 2 - [2011] FCA FC 109
Menkens v Wintour[2007] 2 Qd R 40; [2006] QSC 342
4 citations
Jump To
Cite 1 - [2006] QSC 342
Cite 2 - [2006] QSC 342
Cite 3 - [2007] 2 Qd R 40
Cite 4 - [2007] 2 Qd R 40
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2021] 1 Qd R 276
2 citations
Jump To
Cite 1 - [2021] 1 Qd R 276
Cite 2 - [2021] 1 Qd R 276
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
2 citations
Jump To
Cite 1 - (1998) 195 CLR 1
Cite 2 - (1998) 195 CLR 1
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] [1998] HCA 30
2 citations
Jump To
Cite 1 - [1998] HCA 30
Cite 2 - [1998] HCA 30
Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457
2 citations
Jump To
Cite 1 - (2005) 139 IR 457
Cite 2 - (2005) 139 IR 457
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
2 citations
Jump To
Cite 1 - [2015] FCA 27
Cite 2 - [2015] FCA 27
Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031
1 citation
Jump To
Cite 1 - [2023] FedCFamC2G 1031
Vink v LED Technologies Pty Ltd [2013] FCA 443
2 citations
Jump To
Cite 1 - [2013] FCA 443
Cite 2 - [2013] FCA 443
Walters v Public Transport Corporation (1991) 173 CLR 349
2 citations
Jump To
Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349
Waters v Public Transport Corporation [1991] HCA 49
2 citations
Jump To
Cite 1 - [1991] HCA 49
Cite 2 - [1991] HCA 49
Watton v TAFE Queensland (No.2) [2021] QIRC 299
2 citations
Jump To
Cite 1 - [2021] QIRC 299
Cite 2 - [2021] QIRC 299
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

Case NameFull CitationFrequency
Nicholls v State of Queensland (Department of Child Safety, Seniors and Disability Services) (No. 2) [2024] QIRC 2612 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2025] QIRC 2032 citations
1

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