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Smith v State of Queensland (Queensland Health) & Webb[2024] QIRC 18

Smith v State of Queensland (Queensland Health) & Webb[2024] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 018

PARTIES:

Paul Smith

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

&

Robert Webb

(Second Respondent)

CASE NOS:

GP/2022/18

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

6 February 2024

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

The allegations regarding misrepresentations at paragraphs [30] to [50] and [54] to [57] of the ‘Matters in Issue Raised by the Applicant’ document filed on 19 September 2023 be struck out.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – where the applicant pleads that the respondents have made various misrepresentations in breach of the Industrial Relations Act 2016 (Qld) s 289 – where the respondent applies to have those allegations of misrepresentation struck out from the applicant’s pleadings for failure to engage the Industrial Relations Act 2016 (Qld) s 289 – consideration of the application of the Industrial Relations Act 2016 (Qld) s 289 – consideration of what constitutes a misrepresentation about ‘the workplace rights of the other person or a third person’; or ‘the exercise, or the effect of the exercise, of a workplace right by the other person or a third person’ – where the misrepresentations pleaded do not engage the Industrial Relations Act 2016 (Qld) s 289 as they cannot be construed as representations about a person’s workplace rights or the exercise thereof – application allowed

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 32D

Anti-Discrimination Act 1991 (Qld) s 144

Fair Work Act 2009 (Cth)

Human Rights Act 2019 (Qld)

Industrial Relations Act 2016 (Qld) ss 284, 289, 345, 541,

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

CASES:

Australian Federation of Air Pilots v Regional Express Holdings (No. 2) [2020] FCCA 219

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25

Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 342

White v McClellan [2022] NSWCATAP 340

Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642

Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45

Derry v Peek (1889) 14 App Cas 337

Fenwick v World of Maths [2012] FMCA 131

Reasons for Decision

Introduction

  1. [1]
    The Respondents to the substantive general protections proceeding, the State of Queensland (Queensland Health) and Dr Robert Webb, filed an application in existing proceedings on 21 September 2023 to strike out allegations of misrepresentation made by Mr Paul Smith in a document filed on 19 September 2023 titled, ‘Matters in Issue Raised by the Applicant’.
  1. [2]
    The Respondents say that Mr Smith’s allegations at [30] to [50] and [54] to [57] of this document should be struck out pursuant to the Industrial Relations Act 2016 (Qld) s 541(b)(ii) (‘the IR Act’) for failure to engage s 289 of the IR Act.[1]
  1. [3]
    The application in existing proceedings was allocated to me for hearing after the parties complied with directions to file written submissions issued by the Commissioner with carriage of the matter for conference. I called a mention on 22 November 2023 and with the parties’ consent, I elected to decide the matter on the papers.
  1. [4]
    While the Respondents have brought this application in existing proceedings and the Applicant is responding to it, I have determined to refer to the State of Queensland (Queensland Health) and Dr Robert Webb as the Respondents and Mr Smith as the Applicant throughout this decision.

Legal framework

  1. [5]
    Section 541(b)(ii) of the IR Act vests the Commission with the following power:

541 Decisions generally

The court or commission may, in an industrial cause do any of the following—

  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—

  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;

  1. [6]
    Section 289 of the IR Act deals with misrepresentations and says:

289 Misrepresentations

  1. (1)
    A person must not knowingly or recklessly make a false or misleading representation to another person about—
  1. (a)
    the workplace rights of the other person or a third person; or
  2. (b)
    the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.

Note—

This subsection is a civil penalty provision.

  1. (2)
    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
  1. [7]
    With regard to s 289 of the IR Act, the Explanatory Notes to the Industrial Relations Bill 2016 (Qld), which then became the IR Act, state:

Clause 289 at subclause (1) prohibits a person from knowingly or recklessly making a false or misleading representation to another person about the workplace right, or the exercise or the effect of a workplace right, of the other person or a third person. This subclause is a civil penalty provision.

Subclause (2) provides that this does not apply if the person to whom the representation was made would not be expected to rely on it.

This clause generally reflects section 345 (misrepresentation) that exists under the FW Act, with clarification that a person (person A) could make a misrepresentation about the rights of the person the misrepresentation is made to (person B) or about another person’s rights (person C).

  1. [8]
    The Explanatory Memorandum to the Fair Work Bill 2009 (Cth) (‘the Fair Work Bill’) contains examples of how the section is to be construed:

Illustrative Examples

Madison is a long term casual employee of Benny J Enterprises Pty Ltd. Madison is pregnant with her first child and asks her manager about her parental leave entitlement. Madison’s manager tells her that only full-time employees are entitled to parental leave knowing that this is not true. In doing so, the manager will contravene the prohibition in paragraph 345(1)(a).

Moon Enterprises Pty Ltd (Moon Enterprises) would like to enter into a new enterprise agreement with its employees. The manager of Moon Enterprises provides the employees with a document that contains false and misleading statements relating to the terms and effect of the proposed new agreement. In particular, the document contains false statements in relation to pay increases, casual loadings and penalty rates. The misrepresentation made by the manager is in relation to the effect of approving the enterprise agreement and is prohibited under paragraph 345(1)(b).

Illustrative Example

Peter, Emma, Audrey and Annabelle attend a large end of year party hosted by their employer, Sunny Up Pty Ltd (Sunny Up). During the course of the festivities, the manager of Sunny Up is talking to a group of employees, including Peter, about the project the company is working on that has to be completed in a couple of weeks. Peter says that it’s a tight timeframe and it might not be achievable. The manager laughs and jokes that everyone’s sick leave entitlement will be suspended until the project is completed.  The exception in subclause 345(2) applies in this case because the statement was a joke delivered in a social context, meaning it would not be expected that Peter or the others would have relied on it as a true representation of what the employer intended to do.

Background – the ‘Matters in Issue Raised by the Applicant’ document

  1. [9]
    The matters I have been requested to rule on appear in specific paragraphs of a document titled ‘Matters in Issue Raised by the Applicant’ filed on 19 September 2023. I have reviewed some correspondence relevant to this document and note that it was filed by a lawyer representing the Respondents following a hearing in the Commission to address what I take to be requests for further particulars or clarity regarding the application. The email to the Registry attaching the ‘Matters in Issue’ document was accompanied by an email stating:

Further to yesterday’s hearing before Commissioner Power, attached for filing is the ‘Applicant Matters in Issue’ document.

This document started with the document sent by Dr Sherlock to the Registry on 10 September 2023, but incorporates the changes made during the conference on 14 September 2023, and the additional information from the Applicant regarding several alleged emails (paragraph 6 of the document) and the remedy sought by the Applicant (paragraphs 59 to 62 of that document).

To confirm, we have not corrected any typographical issues from the Applicant’s material.

  1. [10]
    Later that day, Mr Smith’s representative, Dr Sherlock wrote to the Registry in response to the correspondence from the Respondent stating, in part:

We would like to respectfully have leave to correct the record to accurately reflect that the origin of the document filed by the Respondent as the Applicant’s matters in issue was the Respondent The document started with the Respondent’s interpretation of matters raised by the Applicant. It did not originate from the Applicant.

Revisions occurred after the agreed changes on the 14th September occurred in conference. These additional facts and corrections were not accepted by the Commission and we wish to have on the record that this document does not reflect the Applicant’s personal final version but rather the version accepted by the Commission after a hearing on Monday 18th September due to the respondents [sic] objections to the applicant’s additional particularisation.

We wish to have the record show that several salient points upon which the case could turn have been denied to us.

  1. [11]
    No submissions were made to me regarding the origin of the document or its content. I have proceeded on the basis that the submissions clearly address the sections of the document raised in the ‘strike out’ application and that the parties are both clear as to what constitutes the alleged misrepresentations I have been asked to consider.

Respondents’ application to strike out part of the Applicant’s case

  1. [12]
    Mr Smith alleges that misrepresentations have been made by the Respondents to the Queensland Industrial Relations Commission (‘QIRC’), WorkCover Queensland (‘WorkCover’), and the Workers’ Compensation Regulator in breach of s 289 of the IR Act. The Respondents submit that this section does not prohibit misrepresentations generally and says that it only prohibits misrepresentations about workplace rights or the exercise thereof. The Respondents submit that none of the misrepresentations alleged by the Applicant are about workplace rights or their exercise.
  1. [13]
    The Respondents note that the allegations relate to alleged misrepresentations about matters such as whether a recruitment process should continue, the safety of the workplace, and various workplace interactions. The Respondents say that even if those representations were made, and even if those representations were false or misleading, which it denies, they would not constitute a breach of s 289 of the IR Act. The Respondents say that each of the alleged representations are not about workplace rights or the exercise thereof. The Respondents submit that ‘at most, the representations might have affected the applicant’s exercise of a right to seek workers’ compensation or injunctive relief’, in that Mr Smith says those alleged representations prevented him from succeeding in those claims. The Respondents say that this does not make the representations about his workplace rights or their exercise and that it is only representations about workplace rights which engage s 289 of the IR Act.
  1. [14]
    The Respondents say that if s 289 of the IR Act captured every representation affecting an employee’s workplace rights or their exercise, it would create absurd results. The Respondents say that in such a case, every instance where an employer disputed a WorkCover or QIRC claim, and the employer’s position was found to be ‘false’, would be captured. 
  1. [15]
    The Respondents point to the IR Act Explanatory Notes which connects s 289 to the equivalent Fair Work Act 2009 (Cth) (‘the FWA’) Explanatory Memorandum which contains relevant examples about the conduct prohibited by s 289, misrepresentations about parental leave, pay entitlements, and similar matters.  

Approach to consideration of this application

  1. [16]
    Essentially, consideration of this application involves the construction of s 289 of the IR Act and an application of the relevant elements of s 289 to each of the four alleged misrepresentations to determine whether they fall within s 289 or should be struck out because they do not engage the relevant section. 
  1. [17]
    It is convenient therefore, to first consider the elements of s 289 of the IR Act, the purpose of that section, the case authorities interpreting that section and then turn to each of the four alleged misrepresentations, considering the submissions of the parties about each, and coming to a conclusion as to whether each alleged misrepresentation falls within s 289.

Consideration

Section 289 of the IR Act

A person must not… make a false or misleading representation to another person…

  1. [18]
    The first element of s 289(1) refers to ‘a person’ making a false or misleading representation (a misrepresentation) to ‘another person’.
  1. [19]
    In this case, ‘a person’ is clearly the person alleged to have made the misrepresentation.  It seems clear enough that ‘another person’ refers to the person to whom the alleged misrepresentation was made.

about

  1. [20]
    The Respondents draw my attention to cases addressing the meaning of the word ‘about’ in the context of misrepresentations made ‘about a workplace right’ for the purposes of s 289 (or its FWA equivalent).[2]  The Applicant argues that it is necessary to also consider the inclusion of the clause ‘or their exercise’.
  1. [21]
    In Australian Federation of Air Pilots v Regional Express Holdings (No. 2)[3] (‘REX’), the Court considered the appellant’s argument that for a representation to be ‘about’ a workplace right, it is not necessary that the workplace right be identified as such, or that its source be identified but that a representation need only be relevantly related to, and concerned with, the workplace right.[4] Both the primary judge and the Full Court on appeal disagreed with the appellant, citing and following Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [5] (‘BHP Coal’) as authority.[6]
  1. [22]
    In BHP Coal, the Full Court of the Federal Court of Australia considered whether a policy said to be distributed by the union, representing a position as to a reasonable amount of overtime, was a representation ‘about’ workplace rights. The policy took a position which was inconsistent with the employer’s rights under the enterprise agreement to require scheduled and unscheduled overtime to be worked. The Court determined that the primary judge erred when deciding that the policy was a representation ‘about’ the rights of the employer under the relevant agreement. The Court stated ‘the fact that a representation may be inconsistent with a workplace right does not make it a representation about a workplace right’[7] The Court then noted that it was key that the representations in question did not say anything about the overtime clause in the relevant agreement, or its effect.[8]
  1. [23]
    The Respondents then take me to Corke-Cox v Crocker Builders Pty Ltd [9] (‘Crocker Builders’), a decision pre-dating both REX and BHP Coal.  In that decision of the Federal Magistrates Court, the Court considered a claim about information that was passed on to WorkCover by the alleged employer. In that case, the representation was third party hearsay that the worker had confessed to having hurt himself at home. The representation was communicated to WorkCover by the respondent orally and later in writing. The Court found the respondent had little credibility and was critical of the respondent for passing the information on. The Court found ‘the statement made on 5 May 2010 orally and later in writing was one in respect of workplace rights of the applicant and/or the exercise of a workplace right by the applicant. Plainly, the intent of the representation was for it to be relied upon by WorkCover…’.[10]
  1. [24]
    The Applicant relies on Crocker Builders to support its submission that a misrepresentation was made by Metro North Hospital and Health Service (‘MNHHS’) employees to WorkCover and the Workers’ Compensation Regulator and that a misrepresentation was relied upon when making a decision regarding Mr Smith’s right for a compensation claim. The Applicant says that the misrepresentation ‘caused Mr Smith’s rights to be impinged upon’ and that the Respondents have therefore breached s 289 of the Act.
  1. [25]
    The Respondents submit that it is important to consider that the words used by the Court in Crocker Builders were ‘in respect of ‘ rather than ‘about’. The Respondents say that this is ‘a strong indication that the Court did not have the benefit of submissions on the issue of whether the representations were ‘about’ workplace rights or their exercise’.
  1. [26]
    The Respondents say that the judgment in Crocker Builders must be considered in light of those judgments that followed from higher courts. The Respondents say it is important to note that the Court in REX (citing BHP Coal) rejected the argument that a representation ‘about’ a workplace right need only be relevantly related to, and concerned with, rather than directly ‘about’ the workplace right. The Respondents say that the Full Court in BHP Coal made it clear that the representation needs to be one that that says something about the relevant workplace right and that this is entirely consistent with the examples provided in the Fair Work Bill’s Explanatory Memorandum. The Respondents point out that in those examples, even the one demonstrating an exemption where the person to whom the representation is made would not be expected to rely on it, are all statements of what the workplace rights were, not statements that merely share some loose connection by subject matter with a person’s workplace rights. With regard to the use of the term ‘in respect of’ by the Court in Crocker Builders, the Respondents say that the High Court and numerous tribunals have considered that this term is very broad.[11]
  1. [27]
    The Applicant points to the Fair Work Bench Book which it says, ‘gives illustrative examples which clearly show that misrepresentations by employers to WorkCover are captured by s 289’.  I take this to be a reference in that Bench Book to the decision of the Federal Magistrate’s Court in Crocker Builders discussed above.
  1. [28]
    The Applicant submits that as the Court in Crocker Builders decided that a misrepresentation made to WorkCover was a clear breach of the FWA, ‘there is no need to dwell on a redundant examination of the words ‘in respect of’’. I disagree.  Firstly, the QIRC is not bound by a decision of the Federal Magistrates Court.  Secondly, that decision turned on its own facts and must be considered in the context of more recent decisions from higher courts. While I am otherwise unpersuaded by this argument, it is worth noting that bench books from other jurisdictions may be persuasive but are not binding on this Commission.
  1. [29]
    The Applicant says that the interpretation of s 289 requires consideration of not just the emphasis of the words ‘about workplace rights’ but consideration of the clause ‘or their exercise’. The Applicant says that if the term ‘or their exercise’ was not meant to be considered, the legislators would not have added the ‘or’. The Applicant submits that the undue emphasis of the Respondents on the word ‘about’ rather than the verb ‘exercise’ ‘fatally flaws their argument’. 
  1. [30]
    In REX, it was relevantly said:
  1. [98]
    There are a number of elements that must be satisfied in order for a court to form the view that section 345 of the Act has been contravened. Among other things, the representation must be either false or misleading. It must also be ‘about’ one of the matters specified in subsection (1)(a) or (1)(b) of section 345 of the Act.
  2. [99]
    The principles relating to whether a representation is false or misleading in the context of section 345 of the Act were canvassed by a Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 (‘BHP Coal’) at [156] to [162]. I do not repeat here all of the observations of the Full Court, but rely on them.
  3. [100]
    I find that the Letter does not convey representations that are either false or misleading. My reasons for so finding are as follows.
  4. [101]
    Firstly, regard must be had to the terms of the Letter. The Letter does not refer to the relevant clauses in the 2011 Agreement. It does not refer to a workplace right. As the Letter says nothing about the clauses in the 2011 Agreement, it says nothing about the effect of those clauses.
  5. [102]
    Second, to the extent it might be said that the example given in the Letter is inconsistent with any workplace right, that of itself does not make the representation about a workplace right. In BHP Coal, the union published its own policy about overtime. The statement in the union policy was inconsistent with BHP’s workplace rights. The fact that there was an inconsistency between the union policy and BHP’s workplace rights did not produce the result that the union statement was ‘about’ workplace rights.
  1. [31]
    In BHP Coal, the Court stated, ‘the fact that a representation may be inconsistent with a workplace right does not make it a representation about a workplace right’.[12] 
  1. [32]
    The relevant passage in Crocker Builders states:
  1. [138]
    In my view, the respondent is correct in its submission that whilst the alleged workplace right pleaded at paragraph 3 of the points of claim was identified as the applicant’s right to “claim workers compensation,” none of the alleged representations pleaded at paragraph 15(d) address whether the applicant had a right to claim workers’ compensation, a matter to be determined by WorkCover.
  2. [139]
    I accept that the respondent had a reasonable basis upon which to believe the essential statement made to WorkCover that the applicant was a contractor and not an employee. Plainly its statement was misconceived, but the basis for that misconception is largely founded in the highly technical nature of the arrangement and a lack of appreciation of that technicality by the respondent. Given employment practices in the building industry, its views in that respect were not unreasonable.
  3. [140]
    However, insofar as the respondent made its representations on 5 May, the circumstances are entirely distinguishable. As I have found, at best the respondents had no proper foundation for any statement alleged to have been sourced from the applicant that he intended to “stitch up” Crocker Builders by putting in a false claim or that he had injured himself at home and not at work. As I have earlier determined on balance, these comments were based upon speculation and inferences drawn from conversations had between the applicant and Ms Cox of Faux Finishes. In any event, I do not accept that the applicant made the statements attributed to him. Accordingly, I am satisfied that on 5 May 2010 the respondent did recklessly, if not knowingly, misrepresent the applicant’s position to WorkCover both orally in the conversation between Lee Crocker and Sheridan dos Remedios of WorkCover and subsequently by an email by stating to WorkCover:
  • “Could you please give a call regarding this claim before proceeding any further. I remembered I had a phone call from Rob Hauser of Faux Finishes (Painting Company) regarding Richard. Richard rang Rob approx 4-5 weeks ago looking for work. Robert rang me after his call with Richard to advise me what Richard had said to him about our company and his injury claim. Basically Richard told Robert that the injury was done at home (not on our site) but he was going to go after us for the claim ...”
  1. [141]
    The allegation was a serious allegation involving potentially criminal conduct. Even a layman ought appreciate the significance of fraud which in essence was what was being alleged against Corke-Cox. Had this case merely involved an instance of the respondent passing on to WorkCover information received by it, I may have had a more sympathetic view as to whether or not the respondent knowingly or recklessly misrepresented the applicant. However the circumstances surrounding not only the manner in which the respondent’s director, Lee Crocker, says he came to this information but also the curious course of events following, in particular the chance encounter, trouble me. As I have earlier observed, I was not satisfied with the candour of either Hauser or Lee Crocker and I am satisfied that the presentation of their evidence was selective in the omission of material matters. There was more to their association than they were prepared to concede. Their association was highly suspicious and on balance I am satisfied that Lee Crocker knew or ought reasonably have known that the information provided to him by Hauser was suspect. It follows that Lee Crocker’s conveyance of further transmission of this information to WorkCover was done recklessly, not caring whether the representations be true or false.
  2. [142]
    The statement made on 5 May 2010 orally and later in writing was one in respect of the workplace rights of the applicant and/or the exercise of a workplace right by the applicant. Plainly, the intent of the representation was for it to be relied upon by WorkCover. It follows that I am satisfied the respondent breached s. 345 FW Act.
  1. [33]
    At [138] of Crockers-Builders, the Magistrate acknowledges that a number of the alleged representations which were made by the employer in that matter did not ‘address’ the relevant right, that is whether the applicant had a right to claim workers’ compensation.  However, while the statement the Magistrate determined did fall within s 345 of the FW Act was also not about whether the applicant had a right to claim workers’ compensation, the Magistrate determined that the statement ‘was one in respect of the workplace rights of the applicant and/or the exercise of the workplace right’.[13]
  1. [34]
    I am of the view that in the context of the later decisions of BHP and REX, for a representation or a misrepresentation to fall within s 289(1) of the IR Act, it must be about the workplace right or the exercise of the workplace right rather than in some other way related to it or ‘in respect of it’. On the basis of BHP and REX, and in the context of the illustrative examples set out in the Explanatory Memorandum of the Fair Work Bill, I find that the word ‘about’ requires a directness between the statement and the workplace right.
  1. [35]
    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[14] Mortimer J (as her Honour then was) stated that the ‘FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act’.[15]
  1. [36]
    The purpose of s 289 of the IR Act is to prevent a person from making a misrepresentation about a workplace right or the exercise of a workplace right.  If, as in Crocker Builders, the test was that a statement was ‘in respect of’ the workplace right, this would significantly broaden the types of matters which could be seen to be misrepresentations. I do not think the intent of the legislature in enacting s 289 was that it extend to all things that may be written or said in respect of that workplace right. 
  1. [37]
    In this current case, the workplace right is to make a claim for workers’ compensation and to exercise that right by making a claim. Further, the workplace right also involves a right to seek a review of a WorkCover decision and to appeal a review decision made by the Workers’ Compensation Regulator. The exercise of those rights occurs when the review is sought or an appeal is lodged. I also note that a different workplace right is pleaded for the purposes of the alleged misrepresentations made by Mr Peter Sparrow, Manager Workplace Relations & IR Capability for MNHHS, in the context of an application under the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’).
  1. [38]
    For alleged misrepresentations to fall within s 289 of the IR Act, in my view, they must mislead a worker or another person about workplace rights that worker has, and/or their right to exercise those workplace rights. It is not enough that the alleged misrepresentations may have an impact on a determination by a decision-maker regarding the outcome of the exercise of a workplace right. 

… the workplace rights of the other person or a third person

  1. [39]
    The operation of s 289(1)(a) means that the misrepresentation can be made by ‘a person’ to ‘the other person’ about either the workplace rights of that ‘other person’ or the workplace rights of a ‘third person’.
  2. [40]
    The dictionary in Schedule 5 of the IR Act provides that the meaning of ‘workplace right’ is as set out at s 284 of the IR Act. The Applicant in this matter does not argue that Mr Smith does not have a workplace right with regard to the application he made under the AD Act or his claim for workers’ compensation.
  1. [41]
    Section 284 of the IR Act relevantly provides:
  1. (1)
    A person has a workplace right if the person—
  1. (a)
    has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  2. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  3. (c)
    is able to make a compliant or inquiry—
  1. (i)
    to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  2. (ii)
    if the person is an employee – in relation to the person’s employment.
  1. (2)
    In this section—

industrial body means—

  1. (a)
    the commission; or
  2. (b)
    the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.

… knowingly or recklessly

  1. [42]
    For a person to have ‘knowingly or recklessly’ made a representation, it must have been made carelessly or with indifference as to its truth.[16]  This is not a matter I need to address in hearing this application.

… misrepresentation

  1. [43]
    A representation will be a misrepresentation if the represented facts are not the true facts.  To demonstrate that there has been a misrepresentation, it must be demonstrated that the representation is not true.
  1. [44]
    This present application does not require me to consider the truthfulness or otherwise of any alleged representation, nor whether such a representation was made knowingly or recklessly. 
  1. [45]
    The task before me is to determine whether the representations that have been made in each case, are made about a workplace right or the exercise of a workplace right therefore bringing them within s 289 of the IR Act.

The alleged misrepresentations

  1. [46]
    The Applicant says that the misrepresentations were made by four individuals, ‘all of whom knew that the person they were making them to was relying on them to make a decision’.

Mr Sparrow

Respondents’ submissions

  1. [47]
    The Respondents submit that Mr Sparrow’s alleged representations are said to be within the evidence he gave to the Commission in an affidavit tendered for proceedings under s 144 of the Anti-Discrimination Act 1991 (Qld). 
  1. [48]
    I do not intend to delve into other applications filed by Mr Smith or associated proceedings in this Commission or other fora. It is sufficient here to state that Mr Smith had made a discrimination complaint to the Queensland Human Rights Commission and per s 144 of the AD Act, had made an application for an injunction to stop a recruitment process from occurring in order to protect his interests before the matter was referred to the QIRC.
  1. [49]
    The Respondents contend that evidence is said by the Applicant to be ‘to the effect that there were staffing issues in the Unit, so patient safety in the Unit would be compromised if the recruitment process subject to the section 144 Proceeding was injuncted’.
  1. [50]
    The Respondents say the issue the Applicant has is that he disagrees with Mr Sparrow’s assertions that patient safety would be compromised if the injunction were granted.  However, the Respondents say that the allegation makes no reference to, let alone being a representation about, any workplace right held or exercised by the Applicant. The Respondents submit that on any reasonable view, the evidence given by Mr Sparrow was not a representation about any of the Applicant’s workplace rights. The representation may have affected the Applicant’s attempt to obtain injunctive relief, in that the Commission relied on Mr Sparrow’s evidence in refusing to grant the injunctive relief sought, but that is distinct from it being about the Applicant’s workplace rights or their exercise.
  1. [51]
    Further, the Respondents say that s 289 of the IR Act pertains to representations to a ‘person’. On the Applicant’s own claim, the representations were made to the Commission. The Respondent submits it would be at odds with s 32D of the Acts Interpretation Act 1954 (Qld) and would constitute searching for an unintended meaning to the provision that extends well beyond the obvious purpose of it.
  1. [52]
    The Respondents say that the claim regarding Mr Sparrow’s evidence to the Commission is ‘doomed to fail’ and it is neither necessary nor in the public interest to hear the matter as it does not plead a breach of s 289 of the IR Act.

Applicant’s submissions

  1. [53]
    The Applicant says that Mr Sparrow knew that converting a casual employee to a temporary permanent would not change patient safety. Further the Applicant says the objection was to the person who was the nominated point of contact to apply, not the position itself. The Applicant says that ‘this proposition is ridiculous given Mr Smith had been asking when the permanent vacancy (which had been present since the retirement of Mr King) would be advertised but was not’. The Applicant says ‘this would imply that MNHHS had deliberately had unsafe patient safety for two years’.
  1. [54]
    The Applicant says that Mr Smith had a workplace right to object to the recruitment process under his enterprise bargaining agreement (‘EBA’). Further, the Applicant  submits that Mr Sparrow’s argument regarding the impact on patient safety that would result if an injunction was granted would not have created a patient safety issue. The Applicant says an injunction would have ‘simply changed the recruitment process (and the point of contact) to ensure it was more transparent and abided by the concept of equal opportunity by removing the person with a conflict of interest.’
  1. [55]
    The Applicant says that the ‘assertion’ made by Mr Sparrow was made to a ‘human being’ who was required to make a decision on the balance of convenience. The Applicant says the ‘assertion’ was not made to the ‘Commission’ but to a ‘Commissioner’ who makes decisions. The Applicant says it is ‘unnatural’ to consider that Commissioner Power, when exercising her discretion, is not a ‘person’.

Consideration

  1. [56]
    My consideration of the alleged misrepresentation made by Mr Sparrow is informed by my reasons given above at paragraphs [18] to [45].
  1. [57]
    The Applicant’s submissions about the truthfulness or otherwise of the statement Mr Sparrow made to the Commission do not need to be determined in this decision. The task before me is to consider whether Mr Sparrow’s evidence in the Commission could be a misrepresentation on the basis of two matters which have been raised. The first is whether Mr Sparrow’s evidence was about a workplace right or the exercise of a workplace right that Mr Smith possessed. The second is whether the Commission is a ‘person’ for the purposes of the provision.
  1. [58]
    The Applicant submits that Mr Smith had a right to object to the recruitment process under his EBA. I am unsure what that specific right is and there is no more specific reference to it in the Applicant’s submissions.  However, it does not appear that this was the workplace right being exercised by Mr Smith at the time Mr Sparrow made his remarks in evidence in the Commission.
  1. [59]
    Mr Smith had a right to seek an order under s 144 of the AD Act. Mr Smith exercised this right by making an application. Mr Sparrow’s evidence was not with regard to Mr Smith’s capacity to seek orders under s 144 of the AD Act or his exercise of this right by making an application. At the time Mr Sparrow gave evidence, Mr Smith had exercised this right.  Mr Sparrow’s evidence addressed the effect of such an injunction on safety at the hospital. Mr Smith may disagree with Mr Sparrow’s evidence. Mr Sparrow’s evidence may affect a decision made by the Commission regarding Mr Smith’s application. However, Mr Sparrow’s evidence about the impact of an injunction on circumstances at MNHHS is not evidence about a workplace right Mr Smith has. It is for those reasons that I find Mr Sparrow’s evidence does not fall within s 289 of the IR Act.
  1. [60]
    Having determined that Mr Sparrow’s evidence before the Commission was not about a workplace right or the exercise of a workplace right, I am not required to address whether Mr Sparrow’s evidence also fails to fall within s 289 of the IR Act on the basis that it was not made ‘to a person’.  However, for completeness, I have considered the submissions of the parties on this point.
  1. [61]
    The Acts Interpretation Act 1954 (Qld) provides that in an Act, a reference to a person generally includes a reference to a corporation as well as an individual.[17] The QIRC is not a corporation. The evidence was heard by a Commissioner sitting as ‘the Tribunal’ for the purposes of the AD Act. The Commission or Tribunal is established under statute and the power exercised is statutory power. The Commissioner hearing a matter is exercising the power of the Commission or Tribunal and therefore is receiving such evidence as the Commission or Tribunal rather than as ‘a person’. As the Applicant submits, Commissioner Power is a human being. However, when hearing evidence regarding a matter under the AD Act, Commissioner Power is acting in the capacity of ‘the Tribunal’ rather than ‘a person’.

Mr Shorten

Respondents’ submissions

  1. [62]
    The Respondents say the allegation in relation to Mr Luke Shorten, Service Director, Critical Care and Clinical Support Services, focuses on representations to WorkCover about when an injury said to have been sustained by Mr Smith had been reported. The Respondents say that even if those alleged facts were upheld, this has nothing to do with a representation about the Applicant’s workplace rights.
  1. [63]
    The Respondents say that it is not enough that the representation affect or even be inconsistent with the Applicant’s attempt to obtain workers’ compensation. To make out a cause of action, the Applicant needs to identify a representation that was made to him or another person about his workplace rights or the exercise of his workplace rights. The Respondents say that the Applicant fails to make out any such claim in the ‘Issues Document’ and accordingly, does not make out a claim which if substantiated, would breach s 289 of the IR Act. The Respondents say it is therefore neither necessary nor in the public interest to hear the matter further.

Applicant’s submissions

  1. [64]
    The Applicant says that Mr Shorten, by an act of omission, delayed Mr Smith being able to lodge an application for a WorkCover claim. Acts of omission are considered to be misrepresentations under the IR Act. The Applicant says that in South Australia, the ‘Misrepresentation Act’[18] defines a ‘misrepresentation’ as including an omission of information if it would lead a person to believe something other than the truth.
  1. [65]
    The Applicant says that Mr Shorten told WorkCover the injury occurred on 11 November 2021 when he had been informed of the injury on 3 September 2021. The Applicant says that this was not just an omission but that by not reporting the injury he prevented Mr Smith from exercising his right to make a claim.  The Applicant submits that by ‘misreporting’ the date of injury, Mr Shorten made Mr Smith’s injury appear unrelated to the events of 16 August 2021 and this was a fact the investigator would have taken into account when making their decision.

Consideration

  1. [66]
    My consideration of the alleged misrepresentation made by Mr Shorten is informed by my reasons given above at paragraphs [18] to [45].
  1. [67]
    The workplace right Mr Smith had was to lodge a WorkCover claim. The representations attributed to Mr Shorten do not demonstrate that he informed Mr Smith that he could not lodge a claim. Rather, it appears that Mr Smith did lodge a claim. The exercise of the workplace right occurred when Mr Smith made the application for compensation.
  1. [68]
    Following the exercise of the workplace right, it was a matter for WorkCover to consider the claim based on the information available and provided by Mr Smith and by the employer. If Mr Smith is of the view that information provided to WorkCover by the Respondents is not correct, it is a matter for him to raise that with WorkCover. If the claim is rejected, there is a process for seeking review and eventually bringing an appeal to this Commission.
  2. [69]
    The provision of information to WorkCover in support of the Respondents’ position regarding the date of injury is not a representation about a workplace right or the exercise of a workplace right. A representation about a workplace right would occur in circumstances where, for example, Mr Shorten had told Mr Smith that he did not have a right to make a claim for workers’ compensation or that he was unable to exercise such a right.  There is no evidence before me that this is what occurred. As I have discussed above, the submissions indicate that Mr Smith made a claim for workers’ compensation.
  1. [70]
    I do not accept that information provided to WorkCover, albeit information which may have a negative impact on the outcome of Mr Smith’s claim, is a representation about a workplace right or the exercise of a workplace right.

Mr Bachelder

Respondents’ submissions

  1. [71]
    The Respondents say that the allegations as to Mr Troy Bachelder, Rehabilitation Return to Work Coordinator for MNHHS, concern alleged representations to WorkCover and the Workers’ Compensation Regulator.
  1. [72]
    From what I can gather, Ms Jackson of WorkCover was seeking information or a statement from the employer and contacted Mr Bachelder in his role as the Rehabilitation and Return to Work Coordinator. Mr Bachelder reportedly told WorkCover that Dr Thistlethwaite was unavailable to provide a statement as he was ‘away at the QIRC until the second’ and that the Director would ‘contact legal to see if we can respond’. It is alleged that Ms Jackson informed Mr Bachelder that without a response, the decision would be made on the basis of ‘current submissions’. Mr Bachelder is also said to have sent an email to Ms Jackson stating that ‘the QIRC were looking at the Workcover claim that week’ and on another occasion, said to Ms Jackson on the telephone that Mr Smith ‘had no evidence to support his claim’ and that no response could be provided whilst ‘the QIRC investigation was underway’ and that there was ‘no timeframe’ for the QIRC’s investigation.
  1. [73]
    In the first instance as to the availability of Dr Kenneth Thistlethwaite, Co-Director of the Unit, to provide a statement to WorkCover, the Respondents say this has ‘absolutely nothing to do with’ the Applicant’s workplace rights. That Dr Thistlethwaite did not provide a statement to WorkCover is not a representation about the Applicant’s workplace rights on any reasonable assessment.
  1. [74]
    The Respondents say that the second alleged misrepresentation is a communication from Mr Bachelder to WorkCover dated 2 September 2022 allegedly stating that ‘the QIRC were looking at the WorkCover claim this week’. The Respondents say that even if this was proven to be true, it is not a representation about the Applicant’s workplace rights.  The Respondents say that this does not in any way come close to an incorrect description of what the Applicant’s workplace rights were such as those set out in the examples present in the Explanatory Memorandum (as discussed earlier). The mere mention of the exercise of a workplace right in the form of a WorkCover claim does not constitute a representation about the Applicant’s workplace rights.  On that basis, the Respondents say that no breach of s 289 of the IR Act is made out and the claim must fail. Accordingly, the Respondents say it is neither necessary nor in the public interest to hear the matter.
  1. [75]
    The Respondents say that the third instance of alleged misrepresentation by Mr Bachelder is that on 6 September 2022, Mr Bachelder is said to have told WorkCover that the Applicant ‘had no evidence to support his claim’ and that ‘MNHHS could not provide any response whilst the QIRC investigation was underway’ and ‘will not be able to respond while the QIRC investigation was underway’ and ‘there was no timeframe’ for the QIRC’s investigation.  
  1. [76]
    The Respondents say that none of those statements, even if proven, come close to being a representation about Mr Smith’s workplace rights. The Respondents say that at its highest, the claim that Mr Bachelder allegedly said that the Applicant ‘had no evidence to support his claim’ is the type of reference referred to in Crocker Builders.  However, the Respondents point to BHP Coal and REX as authorities that such a loose connection to the exercise of a workplace right misconstrues what is a representation ‘about’ a workplace right. The Respondents say that on the most recent and authoritative judgments, the allegation fails to make out any breach of s 289 of the IR Act. The Respondents submit that accordingly, it is neither necessary, nor in the public interest to hear the matter because the claim must fail.

Applicant’s submissions

  1. [77]
    The Applicant submits that Mr Smith had an injury due to threats made by Dr Thistlethwaite on a background of repeated victimisation and that he ‘absolutely had a right to make a WorkCover claim for his injury’.
  1. [78]
    The Applicant states that a lack of a statement from an alleged perpetrator is very relevant as the workers’ compensation process relies on statements. The Applicant says that without a statement from the employer, there is no record of fact. Mr Bachelder is the person who is responsible for ensuring workers have access to WorkCover as the employer’s representative. The Applicant submits that Mr Smith’s right to have a claim assessed and thereby exercise his workplace right cannot occur without a statement from the employer. No statement was given by either Mr Bachelder or Dr Thistlethwaite and as such, Mr Smith could not exercise his right.

Consideration

  1. [79]
    My consideration of the alleged misrepresentation made by Mr Shorten is informed by my reasons given above at paragraphs [18] to [45]. As I have discussed above, I find that the relevant workplace right was the right to make a claim for WorkCover and the relevant exercise of the right occurred when the application was made.
  1. [80]
    Mr Bachelder’s representation to WorkCover that Dr Thistlethwaite was unavailable to provide a statement was not a representation about Mr Smith’s workplace right or the exercise thereof. The non-provision of a statement from Dr Thistlethwaite at that time did not preclude Mr Smith from exercising his workplace right to make an application for WorkCover.
  1. [81]
    Likewise, I find that any statement Mr Bachelder made to WorkCover regarding matters that may or may not be pending in the QIRC or the quality of the evidence that Mr Smith may be able to produce to support his claim was not a statement about Mr Smith’s workplace right to lodge a WorkCover claim or his exercise of that right by making the claim. The WorkCover process requires an employer to provide information to WorkCover or, in the case of review, the Workers’ Compensation Regulator. It is not the case that all information provided to WorkCover by an employer falls within s 289 of the IR Act.  Information provided to WorkCover may have an impact on the outcome arrived at by the decision-maker, following the exercise of a workplace right, but it is not about that workplace right.
  1. [82]
    If Mr Smith is of the view that WorkCover or the Workers’ Compensation Regulator have made an error or that a decision has been made based on information which is not correct or which Mr Smith disagrees with, there is a review and appeals process available. 
  1. [83]
    It would be an unworkable situation if a person were able to make a general protections application each time they disagreed with information provided by their employer to WorkCover. There is a scheme to deal with such situations via the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Dr Webb

Respondents’ submissions

  1. [84]
    The Respondents say that the allegations relating to Dr Robert Webb, Co-Director of the Unit, involve parts of a statement said to have been provided to the Workers’ Compensation Regulator in January 2023. The allegation is essentially that Dr Webb’s statement provided that on 16 August 2021, he had already arranged a meeting to discuss his concerns with senior executives regarding the Applicant’s behaviour including issues with punctuality and reliability, and attended a meeting with senior executives who informed Dr Webb that the Unit would be closed.
  1. [85]
    The Respondents say that the allegation continues that Dr Webb did not provide certain information in that statement to the Regulator including that:
  1. (a)
    the State had appointed an investigator to attend the Unit and report on safety and that the investigator was scheduled to attend the unit on 23 August 2021;
  2. (b)
    the applicant’s shift on 23 August 2021 was allegedly cancelled preventing the applicant from providing relevant information to the investigation;
  3. (c)
    the meeting with senior executives was organised by an email request at 10.58am on 16 August only a few hours after the applicant had raised safety concerns; and
  4. (d)
    the applicant was not rostered that day but had agreed to attend work to assist as the person rostered was fatigued, which was something he had done on many occasions.[19]
  1. [86]
    The Respondents say that here, the allegation is that a representation about a person’s workplace rights is comprised of failing to make any representation at all and that this argument is fundamentally flawed. The Respondents submit that it is theoretically possible that an employer could misrepresent the nature of an employee’s workplace rights by being silent in response to a remark by a casual employee to the effect of ‘I understand that I don’t get paid overtime as a casual’. Knowing that statement to be untrue, the employer’s silence could, in a scenario like that, theoretically constitute a misrepresentation about the employee’s workplace rights to overtime pay.
  1. [87]
    The Respondents say that nothing in the claims made by the Applicant in relation to Dr Webb’s alleged statement, or alleged omissions, are about the Applicant’s workplace rights. The Respondents say that none of the alleged remarks or omissions describe wrongly the nature or effect of any workplace right the Applicant has, has exercised or proposed to exercise (or not to exercise). Accordingly, the Respondents say that no breach of s 289 of the IR Act could be made out and it is therefore neither necessary, nor in the public interest to hear the matter because it too is a claim that is doomed to fail.

Applicant’s submissions

  1. [88]
    The Applicant says that Dr Webb misrepresented Mr Smith’s reputation and his work to WorkCover to make it appear that Mr Smith was a problematic employee.  The Applicant says that the opinion of Dr Webb will be a credibility test.
  1. [89]
    Dr Webb’s statements and omissions were meant to discredit Mr Smith to the Workers’ Compensation Regulator and they prevented Mr Smith from exercising his workplace right effectively. The Applicant says this brings the misrepresentation under the capture of s 289 of the IR Act.

Consideration

  1. [90]
    My consideration of the alleged misrepresentation made by Dr Webb is informed by my reasons given above at paragraphs [18] to [45].
  2. [91]
    For the reasons given above, I do not accept that statements made by the Respondents to either WorkCover or the Workers’ Compensation Regulator are about the workplace right to make a claim for Workers’ Compensation or are about the exercise of that right.
  1. [92]
    If there is information that Mr Smith feels should be considered by the decision-maker in relation to a workers’ compensation claim, review or appeal, it is a matter for Mr Smith to furnish the decision-maker with this information, or draw attention to the fact that it is missing.
  1. [93]
    If Mr Smith disagrees with information provided by the Respondents relating to his workers’ compensation claim and thinks that the decision has been affected by that information, it is a matter for him to seek a review or lodge an appeal to have the matter considered by the Workers’ Compensation Regulator or the Commission.
  1. [94]
    Mr Smith has a right to lodge a claim for workers’ compensation, he has right to seek a review of a decision made to reject his claim and he has a right to appeal a decision of the Workers’ Compensation Regulator to the QIRC. The workplace right to claim workers’ compensation does not give rise to a workplace right that the employer will only provide WorkCover information favourable to one’s claim.
  1. [95]
    I am not satisfied that Dr Webb’s statement provided to WorkCover falls within s 289 of the IR Act.  Further, that Dr Webb’s statement did not contain information Mr Smith thought it should have contained does not fall within s 289. 

The power to strike out

  1. [96]
    The basis of the strike out application made by the Respondents is that the relevant allegations set out in the ‘matters in issue raised by the Applicant’ document in GP/2022/18 do not constitute misrepresentations for the purposes of s 289 and that those particular allegations should be struck out.
  1. [97]
    In considering each of the alleged misrepresentations above, I was cognisant of Martin P’s statement in Campbell v State of Queensland (Department of Justice and Attorney-General)[20] with regard to applications made under s 541:
  1. [28]
    The process for consideration of an Application under s 541 does not require that the respondent’s case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case where the public interest lay often depended on a balancing of interests, including public interests, and was very much a question of fact and degree.
  2. [29]
    As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A ‘proper’ consideration’ cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the ‘public interest’ cannot be satisfied if an artificial inflation of the respondent’s case is applied. Indeed, to take a respondent’s case at its highest would almost always result in the dismission of an Application under this section. On an Application of this type, a respondent is not relieved of any requirement to advance a case.
  1. [98]
    I note that in Dawson v State of Queensland (Department of Premier and Cabinet),[21] O'Connor VP considered Martin P’s decision in Campbell. In Dawson, the Vice President exercised the discretion to strike out the claim on the basis that the applicant had failed to make out a breach of the IR Act. His Honour said:
  1. [51]
    The matter ought to be struck out. In taking that view, I accept that the PID Act is not an ‘industrial law’ for the purposes of the IR Act; that the Applicant did not take part in a ‘proceeding under this industrial law consistent with section 283(i) of the IR Act by making a public interest disclosure’; the Applicant has not identified a ‘workplace right’ or breach of s 285 of the IR Act; and the Applicant has not identified any other adverse action. As noted above, no application has been made pursuant to Chapter 8, Park 1, Division 8 of the IR Act. It follows therefore that s 314 of the IR Act is not engaged. The Applicant has failed to articulate in any meaningful way how the relief he seeks can be granted.[22]
  1. [99]
    The parties did not seek to lead evidence or to address the Commission orally and therefore I have considered the matter on the basis of the materials before me. Those materials are: the ‘Matters in Issue’ document dated 19 September 2023, the Form 4  Application filed by the Respondents and the written submissions of both the Respondents and the Applicant addressing the strike out application and the relevant sections of cases cited in those submissions.
  1. [100]
    The Respondents contend that the allegations set out in paragraphs [30] to [50] and [54] to [57] did not engage s 289 of the IR Act. On the basis of my interpretation of that section in the context of the IR Act, the similar provision in the FWA and the relevant cases, I accept the Respondents’ contention. The Applicant’s submissions did not demonstrate that each of the allegations of misrepresentation subject of the strike out application were misrepresentations for the purpose of s 289.  For the reasons given above, I find that the Applicant has been unable to demonstrate that the allegations set out in paragraphs [30] to [50] and [54] to [57] of the ‘Matters in Issue Raised by the Applicant’ document filed on 19 September 2023 are misrepresentations for the purposes of s 289. 
  1. [101]
    The Applicant submits that to strike out a meritorious claim under the IR Act undermines its purpose. I agree that meritorious claims should not be struck out. However, for the reasons given in this decision, I do not find the claims of misrepresentation set out in paragraphs [30] to [50] and [54] to [57] are meritorious.
  1. [102]
    I note the Applicant’s submission that the Human Rights Act 2019 (Qld) (‘the Human Rights Act’) needs to be considered to ensure equality before the law. In support of that submission, the Applicant says, ‘it would be unjust not to hear an argument which has merit simply because the [Respondents do not] wish to have the argument aired as it is important and potentially sets a dangerous precedent if not heard’. For the reasons given in this decision, I have determined that the relevant paragraphs of the ‘Matters in Issue’ document do not have merit. I accept that the Human Rights Act provides that every person has the right to recognition and equality before the law. However, with procedural fairness in mind, it is open to a respondent to file a strike out application where the respondent believes parts of a claim do not engage the section of the IR Act pleaded.
  1. [103]
    The Applicant also says that it is in the public interest that employers making false statements to courts or to WorkCover is not seen as legally acceptable behaviour. I note that the Respondents deny that false statements were made in either the Commission or to WorkCover. I agree with the principle that both the making of false statements to courts and/or WorkCover is not acceptable. However, there are avenues to pursue such matters. It is in the public interest that allegations of false statements being made to a court or WorkCover are dealt with in the appropriate forum.
  1. [104]
    Section 541(b)(ii) affords me a discretion to dismiss (or strike out) the nominated paragraphs of the document if I consider that it is not necessary or desirable in the public interest that the Commission hear those matters.  I am satisfied that it is not necessary or desirable in the public interest for the Commission to consider an application for relief in the form of damages of $25,000 each for the alleged misrepresentations at [30] to [50] and [54] to [57] of the ‘Matters in issue raised by the Applicant’ when such relief is not available given that s 289 is not engaged by these alleged misrepresentations.
  1. [105]
    The effect of my decision is that a series of alleged misrepresentations will no longer form part of the general protections application filed by Mr Smith.  However, my reading of the ‘Matters in Issue’ document is that the general protections application also involves allegations of adverse actions. This decision is confined to the misrepresentations alleged to have been made by Mr Sparrow, Mr Shorten, Mr Bachelder and Dr Webb and set out from paragraphs [30] to [50] and [54] to [57].

Order

  1. [106]
    Pursuant to s 541(b)(ii) of the IR Act, I order:
  1. 1.The allegations regarding misrepresentations at paragraphs [30] to [50] and [54] to [57] of the ‘Matters in Issue Raised by the Applicant’ document filed on 19 September 2023 be struck out.

Footnotes

[1] While the application seeks that paragraphs [32] to [50] and [54] to [57] be struck out, the Respondents’ submissions filed on 6 October 2023 clearly refer to paragraphs [30] to [50] and [54] to [57]. The Applicant’s submissions filed on 10 October 2023 refer to those same paragraphs. Paragraph [54] specifically relates to an alleged misrepresentation made by Mr Peter Sparrow and refers to that conduct being set out at [30] to [31]. I have determined to treat the reference in the Form 4 application as seeking to strike out paragraphs [32] to [50] and [54] to [57] as a typographical error and will hear this application with regard to [30] to [50] and [54] to [57].

[2] Respondents’ submissions filed 6 October 2023, [15]-[20].

[3] [2020] FCCA 219 (‘REX’).

[4] Ibid [84].

[5] [2015] FCAFC 25 (‘BHP Coal’).

[6] REX (n 3) [99].

[7] BHP Coal (n 5) [156] (emphasis in original).

[8] Ibid [157]; Respondents’ submissions filed 6 October 2023, [16].

[9] [2012] FMCA 677 (‘Crocker Builders’).

[10] Ibid [142].

[11] The Respondents have cited the following cases in support of this submission: White v McClellan [2022] NSWCATAP 340, [27]; Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642, 653-654; Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45, 47.

[12] BHP Coal (n 5) [156] (emphasis in original).

[13] Crocker Builders (n 9) [142] (emphasis added).

[14] [2017] FCA 1091.

[15] Ibid [250].

[16] Derry v Peek (1889) 14 App Cas 337, 374 cited in Fenwick v World of Maths [2012] FMCA 131, [51].

[17] Acts Interpretation Act 1954 (Qld) s 32D.

[18] Which I take to be a reference to the Misrepresentation Act 1972 (SA), which is not applicable to this proceeding.

[19] Respondents’ submissions filed 10 October 2023, [32](a)-(d).

[20] [2019] ICQ 18.

[21] [2021] QIRC 342.

[22] Ibid [51].

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Health) & Webb

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Health) & Webb

  • MNC:

    [2024] QIRC 18

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    06 Feb 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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