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- Smith v State of Queensland (Queensland Health) (No.4)[2024] QIRC 198
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Smith v State of Queensland (Queensland Health) (No.4)[2024] QIRC 198
Smith v State of Queensland (Queensland Health) (No.4)[2024] QIRC 198
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v State of Queensland (Queensland Health) & Anor (No.4) [2024] QIRC 198 |
PARTIES: | Smith, Paul Joseph (Applicant) v State of Queensland (Queensland Health) (First Respondent) and Webb, Robert (Second Respondent) |
CASE NO: | GP/2022/18 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 12 August 2024 |
MEMBER: | Power IC |
HEARD AT: | Brisbane |
ORDER: | The orders are contained in paragraph [52] of these reasons for decision. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – Application in existing proceedings – where Applicant seeks disclosure of further documents – where Respondents object to the request for further disclosure – where Applicant seeks a decision regarding the disclosure request – where Respondents seek an order for costs. |
LEGISLATION AND OTHER INSTRUMENTS: | Human Rights Act 2019 (Qld), s 8, s 17, s 48 Industrial Relations Act 2016 (Qld), s 545 Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 46 |
CASES: | Athwal v State of Queensland [2023] QCA 156 CFMEU v BHP Coal Pty Ltd (No 2) (2011) 212 IR 313 Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436 Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 14 Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25 Momcilovic v The Queen [2011] HCA 34 Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 Re: Ipswich City Council [2020] QIRC 194 Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 018 Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187 Watton v TAFE Queensland (No. 2) [2021] QIRC 299 |
Reasons for Decision
Introduction
- [1]On 20 September 2022, Mr Paul Smith ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act') against the State of Queensland (Queensland Health) and Dr Robert Webb ('the Respondents').
- [2]On 3 August 2023, the Applicant filed a 'Form 4 – Application in Existing Proceedings' seeking further disclosure from the Respondents. On 28 August 2023, the Applicant filed another 'Form 4 – Application in Existing Proceedings' seeking disclosure ('the Application').
- [3]The substantive matter was subject to a separate interlocutory proceeding that was determined on 6 February 2024 by Commissioner Pidgeon. This decision has been appealed to the Industrial Court ('the appeal').
- [4]At a mention held on 15 May 2024, it was determined that the application for disclosure for documents relating to matters that are not subject to the appeal would proceed. A Further Directions Order (10) was issued on 24 May 2024 directing parties to file submissions in regard to the Application.
- [5]Submissions were filed in accordance with the Further Directions Order and parties made oral submissions at a hearing of the Application on 15 July 2024.
Documents sought
- [6]The Applicant originally sought 15 documents and categories of documents as outlined in Schedule One of the Application. In the Applicant's submissions in reply, it was stated that the only documents pressed were categories 1, 3, and 7.
No. | Description of request for document(s) |
1 | Documents relating to the recruitment process of Jason Pearson. |
3 | Correspondence between Dr Rushbrook and Human Relations or someone else which she quoted from when Dr Sherlock raised the objection to the recruitment with Dr Thistlethwaite as point of contact. |
7 | Documented evidence that the PID accepted by Integrity on August 15th 2021 was investigated and handled in accordance with the PID Act and that the CEO was not aware which was why no action was taken and the injury resulted from reasonable management action as Mr Shorten claimed to the WCR. |
Legal framework
- [7]Rule 46 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') outlines the following with respect to the duty of disclosure:
- 46Duty of disclosure
- (1)If a directions order requiring disclosure of documents is made, a party must disclose any document that—
- (a)is directly relevant to the proceeding or a matter in issue in the proceeding; and
- (b)is in, or comes into, the possession of the party.
- (2)A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
- (3)Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
- [8]The Commission may make an order requiring disclosure of documents pursuant to r 41(2)(o) of the IR Rules.
- [9]In Watton v TAFE Queensland (No. 2), Industrial Commissioner Hartigan (as she then was) determined the following:
By operation of r 46 of the Tribunals Rules, the obligation in respect of disclosure applies to documents relevant to an allegation in issue in the proceedings. Where disclosure has been made by a party, another party seeking further 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.
…
The purpose of the Statement of Facts and Contentions is to allow each party to properly set out and particularise the relevant facts and legal contentions raised in order to place the Commission and other party on notice as to what the parties' respective case will be. Whilst not formally recognised as such, the Statement of Facts and Contentions have a function akin to pleadings.
Accordingly, when determining whether a document, or category of documents is directly relevant, I will do so by considering whether the document or category of documents is directly relevant to an allegation in issue as identified in the ASOFC and RASOFC. The "directly relevant" test set out in r 46 of the Tribunals Rules is intended to impose a threshold on the process of discovery.[1]
- [10]In the decision of Huyghe v State of Queensland (Mackay Hospital and Health Service) Industrial Commissioner Knight summarised principles for determining whether a document is 'directly relevant' as set out in CFMEU v BHP Coal Pty Ltd (No 2)[2] –
- (a)[W]hether a document is directly relevant to an issue in the proceeding is a question of fact in the circumstances of the case;
- (b)'directly' should not be understood to mean that which constitutes direct evidence, to the exclusion of circumstantial evidence. Rather, 'directly relevant' means something which tends to prove or disprove the allegation in issue; and
- (c)a document will not be 'directly relevant' if, rather than tending to prove an issue in dispute, it merely tends to prove something that may be relevant to a disputed issue.[3]
- [11]President Davis considered the question of relevance in Mohr-Edgar v Legal Aid Queensland, stating –
To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.[4]
- Consideration
- [12]As outlined above, the test to determine if documents must be disclosed is whether the documents are directly relevant to a matter in issue in the proceeding. Each category of document sought will be addressed in turn below.
Document 1 - Documents relating to the recruitment process of Jason Pearson
- [13]Jason Pearson was the applicant who successfully obtained the position following a recruitment process that the Applicant had objected to as part of his grievance.
- [14]The Applicant submits that the response and timing by Queensland Health employees involved in the recruitment process is important, and specifically that document 1 is sought 'to show the date of the interview and [the] date [the] contract was signed'. The Applicant contends that this is relevant to establish if the State progressed the recruitment process 'despite knowledge the matter was in dispute and had been raised as a grievance', stating that the CEO would have been required to sign off on the process and that accordingly, the date of offer is important to the adverse action allegation against Adjunct Professor Hanson.
- [15]The Respondents submit that the documents do not reflect the confines of the Applicant's allegations as set out in the Applicant's 'Matters in Issue Raised by the Applicant' document ('MIRA') which serves as the Applicant's Statement of Facts and Contentions ('SOFC') in this matter.
- [16]The Applicant states in the MIRA at paragraph 53(b) that Adjunct Professor Hanson 'altered the Applicant's position to his prejudice, by failure [sic] to act and allowing [the Applicant] further psychological distress whilst he was effectively replaced in a discriminatory recruitment process'.
- [17]As I understand this contention, the allegation against Adjunct Professor Hanson is that she engaged in adverse action by failing to respond to the Applicant's grievances. The further contention is that as a consequence of this, the Applicant 'was replaced in a discriminatory recruitment process'. The allegation appears to be that the recruitment process was a consequence of Adjunct Professor Hanson's adverse action rather than adverse action in itself.
- [18]The allegation against Dr Webb is outlined by the Applicant in paragraph 52(c) of the MIRA document as follows –
… Dr Webb discriminated between the Applicant and other State employees, by allowing indirect discrimination during a recruitment process which would prevent any further position to be available for [the Applicant] to apply for.
- [19]The Applicant alleges that Dr Webb engaged in allowing discrimination during the recruitment process. Documents relating to the process more broadly such as applications, resumes, panel notes, etc, are not directly relevant to this allegation as it appears that the alleged discrimination relates only to the appointment of the point of contact for the recruitment process. Only documents related to the commencement of the recruitment process are directly relevant to the allegation against Dr Webb as outlined in paragraph 52(c) of the MIRA and so should be disclosed.
- [20]Application for disclosure of Document 1 is granted.
Document 3 – 'Correspondence between Dr Rushbrook and Human Relations or someone else which she quoted from when Dr Sherlock raised the objection to the recruitment with Dr Thistlethwaite as point of contact.'
- [21]The Applicant submits that the document is relevant because it "sheds light on how the grievance was relayed to Human Resources." The Applicant further submits that the full response from HR will "show if the grievance was handled fairly as would be expected under Mr Smith's EBA."
- [22]The Applicant contends that "as there is also a HR policy regarding conflict of interest declarations for recruitment under the HR policy 12/20 … it would be useful to know if the requirement to declare a conflict of interest was acknowledged by HR. These documents provide motivation to harm [the Applicant] if they show the employer acted improperly to his grievance."
- [23]The allegation against Adjunct Professor Hanson as outlined by the Applicant in paragraph 28(b) of the MIRA is that she prevented the Applicant from returning to the workplace by not providing the Applicant with a copy of the Mapien Report and any outcome of the complaints subject to the Mapien Report.[5] It is alleged in paragraph 28(a) of the MIRA that this conduct was adverse action and occurred because the Applicant made a complaint about the recruitment process.
- [24]It is not clear how the correspondence sought is directly relevant to a matter in issue in the proceedings. Whether the grievance was handled in accordance with HR policy 12/20 and was 'handed fairly' under the Applicant's EBA is not directly relevant to issues relating to this allegation.
- [25]This document is not directly relevant to a matter in proceedings.
- [26]Application to disclose Documents 3 is dismissed.
Document 7 - Documented evidence that the PID accepted by Integrity on August 15th 2021 was investigated and handled in accordance with the PID Act and that the CEO was not aware which was why no action was taken and the injury resulted from reasonable management action as Mr Shorten claimed to the WCR.
- [27]The Applicant submits that documentary evidence of any actions taken by the CEO to protect Mr Smith from reprisals in the workplace after the Public Interest Disclosure (referred to as PID) was accepted is relevant to the claim of adverse action.
- [28]I accept the Respondents' submission that this category involves a request for evidence rather than documents. It is also difficult to ascertain the type of 'documentary evidence' given the peculiar description of the documents sought. It is unclear how documentary evidence that a person was 'not aware' would exist. It is also unclear how the reference to reasonable management actions that 'Mr Shorten claimed to the WCR' are directly relevant to a matter in issue in these proceedings.
- [29]The scope of this category of 'documentary evidence' is unclear and the case has not been made as to how such documents could tend to prove or disprove a matter in issue in the proceedings.
- [30]Application to disclose Document 7 is dismissed.
Human Rights submissions
- [31]The Applicant made the following submission with respect to the Human Rights Act 2019 (Qld) ('the HR Act') –
'… [The Applicant] also has a right to be treated in a manner consistent with s 17 of the HR Act and we request that the protracted nature of disclosure to delay this case be considered as both torturous and inhumane.'
- [32]The Applicant contends that s 48 of the HR Act should be considered when interpreting the statutory provisions relating to disclosure obligations, submitting that denying the Applicant the material would affect his human right to equality before the law.
- [33]As determined by Deputy President Merrell in Re: Ipswich City Council,[6] the Commission exercises both judicial and administrative power. I accept the Respondents' submission that the Commission's function in this matter is property characterised as judicial rather than administrative.
- [34]Section 48 of the HR Act requires the Commission to interpret statutory provisions in a way that is compatible with human rights to the extent possible that is consistent with their purpose or, if that is not possible, then in a way that is most compatible with human rights.
- [35]Section 8 of the HR Act is outlined as follows –
- 8Meaning of compatible with human rights
- An act, decision or statutory provision is compatible with human rights if the act, decision or provision –
- (a)does not limit a human right; or
- (b)limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
- [36]In Athwal v State of Queensland[7] the Court considered the interpretation of s 48 of the HR Act. The Court referred to Momcilovic v The Queen in which the High Court considered a similar provision in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Victorian Charter').[8] The majority of the Court emphasised that s 32 of the Victorian Charter was an interpretive provision which operated together with other rules of statutory interrelation and did not authorise the courts to effectively re-write legislation to make it compatible with human rights. For example, Crennan and Kiefel JJ observed:
Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1), that statutory provisions "must be interpreted in a way that is compatible with human rights", is qualified by the recognition that such an interpretation is to be affected only "[s]o far as it is possible to do so consistently with their purpose". This statutory direction seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. … The process of construction commences with an essential examination of the context of the provisions being construed.
Where is possible, consistently with a statute's purpose, s 32(1) requires that all statutory provisions are to be read conformably with Charter rights. Section 32(3)(a) acknowledges that this may not be possible in all cases, by providing that s 32(1) does not affect the validity of an Act or a provision of an Act which is incompatible with a human right. It cannot therefore be said that s 32(1) requires the language of a section to be strained to effect consistency with the Charter. When a provision cannot be construed consistently with the Charter, the provision stands. … Such a provision reaffirms the role of the legislature and makes clear that a court's role in ascertaining the meaning of the legislation remains one of interpretation.
[citations omitted][9]
- [37]French J observed the following with respect to consideration of the equivalent section in the Victorian Charter –
It mandates an attempt to interpret statutory provisions compatibly with human rights. There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. The subsection limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits. Constructional choice subsumes the concept of ambiguity but lacks its negative connotation. It reflects the plasticity and shades of meaning and nuance that are the natural attributes of language and the legal indeterminacy that is avoided only with difficulty in statutory drafting.[10]
- [38]There is no submission before the Commission that r 46 of the Industrial Relations (Tribunal) Rules 2011 (Qld) is ambiguous or open to constructional choice. The duty of disclosure is outlined in r 46 as follows –
- 46Duty of disclosure
- (1)If a directions order requiring disclosure of documents is made, a party must disclose any document that—
- (a)is directly relevant to the proceeding or a matter in issue in the proceeding; and
- (b)is in, or comes into, the possession of the party.
- [39]Rule 46 is unambiguous, and no submission has been made to the Commission as to how such a provision can be interpreted in multiple ways. In my view, the words of the provision are clear and so it is unnecessary to consider a method of interpretation that is compatible, or the 'most compatible' with human rights.
- [40]Section 8 of the HR Act provides that a statutory provision is compatible with human rights if it does not limit a human right. As noted in Owen-D'Arcy v Chief Executive, Queensland Corrective Services,[11] the Applicant bears the onus of establishing that the decision imposes a limit on human rights and, if established, that the Respondents bear the onus of justifying the limit. The Applicant has not discharged his onus to demonstrate that the duty of disclosure imposes a limit on human rights. Accordingly, I am also satisfied that r 46 does not impose a limit on a human right and consequently is compatible with human rights.
- [41]The Applicant's submission that he has a right to 'equality before the law' is not in dispute. The Applicant's submissions appear to indicate that the alleged infringement on his human rights relates to the length of time that it has taken for the disclosure application to be progressed. The Applicant submits that the 'protracted nature of disclosure to delay this case' amount to 'torture' or 'inhuman treatment' in accordance with s 17 of the HR Act. I am not persuaded that the right to protection from torture and cruel, inhuman, or degrading treatment is engaged by the r 46.
- [42]For completeness, I will address the Applicant's submissions regarding the length of time taken to progress the disclosure application. The delay associated with this disclosure application primarily relates to an interlocutory application brought by the Respondents to have the Applicant's claim regarding misrepresentation struck out from the substantive claim. It would have been inappropriate to proceed with the disclosure application until the Respondents' application had been determined. In a decision by Commissioner Pidgeon, the Respondents' application was successful and the claims relating to misrepresentation were struck out.[12] The Applicant has appealed that decision. Consequently, the disclosure application as it relates to the misrepresentation claims cannot be heard until the Applicant's appeal is determined. Whilst it was entirely open to the Applicant to appeal the decision, the consequence of taking that course of action is further delay in the matter. The submission that the Respondents' opposition to disclosure applications is 'to delay this case' is without foundation. Respondents have a legal right to oppose disclosure applications if they form the view that they have been brought without merit. The Applicant requested that the disclosure application proceed for matters unrelated to those matters under appeal, and that process has occurred.
Costs application
- [43]The Respondents seek an order for costs for defending this disclosure application from the date of the Respondents' submission of 17 June 2024.
- [44]Section 545(1) of the IR Act outlines the standard position with respect to costs -
- A person must bear the person's own costs in relation to a proceeding before the court or commission.
- [45]Section 545(2) of the IR Act is outlined as follows –
- (a)A party to the proceeding to pay costs incurred by another party if the court of commission is satisfied –
- (i)The party made the application or responded to the application vexatiously or without reasonable cause; or
- (ii)It would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success.
- [46]Section 545(2)(ii) of the IR Act requires an objective assessment as to whether it would have been reasonably apparent to the Applicant that their claim had no reasonable prospects of success.[13] I am not persuaded that at the time the disclosure application was filed, it would have been reasonably apparent to the Applicant that the application had no reasonable prospect of success.
- [47]The application for disclosure was originally filed on 3 August 2023. The Applicant's SOFC was then subject to challenge by the Respondents via a Form 4 Application on 17 August 2024. A conciliation conference was held and the MIRA document was created to replace the Applicant's SOFC. The Applicant did not amend his disclosure application despite the refinement of his facts and contentions.
- [48]The Respondents made oral submissions that the costs sought were those arising from the date of an email sent by the Applicant on 1 May 2024 pressing the disclosure application. In this email the Applicant did not refer to specific parts of the MIRA document, but rather, stated that the documents were referred to by the Respondents in their SOFC filed on 19 May 2023. This document has been superseded by the MIRA document.[14]
- [49]In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011, Vice President O'Connor noted the following –
In MIM Holdings Ltd v AMWU, Hall P explained the phrase "without reasonable cause" as "objectively recognisable as one which could not succeed at the time when the application was made".
The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.
[citations omitted][15]
- [50]I am not satisfied that it was objectively recognisable that the disclosure application could not succeed at the time when the application was made.
- [51]The Applicant made submissions in support of the disclosure application confirming that only 3 document categories were sought. This concession came late in the proceedings, and it would have been appropriate for the Applicant to abandon such claims earlier in the process. However, in circumstances where the disclosure application had been filed prior to the amended MIRA document, and a substantial part of the MIRA has been struck out but is now subject to appeal, I am not satisfied that it would have been reasonably apparent that the disclosure claim had no reasonable prospects of success.
- Orders
- [52]I make the following orders:
- 1.The following documents are to be disclosed to the Applicant within 21 days of this order –
- Documents in category 1 limited to the commencement of the recruitment process
- 2.The application for disclosure of the following documents is dismissed –
- Documents in category 3
- Document in category 7
Footnotes
[1] Watton v TAFE Queensland (No. 2) [2021] QIRC 299, 9.
[2](2011) 212 IR 313
[3] Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 14, 20.
[4] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25, 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.
[5] Paragraph 27 of the MIRA, filed on 19 September 2023.
[6] [2020] QIRC 194, 24.
[7] [2023] QCA 156
[8] At [91].
[9] Momcilovic v The Queen [2011] HCA 34, 565.
[10] Ibid, 50.
[11] [2021] QSC 273
[12] Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 018
[13] Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 436
[14] The Respondents will not be directed to file a Response until the determination of the appeal against the decision to strike out claims relating to misrepresentation.
[15] Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 187, 15.