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  4. Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) - [2024] QIRC 259

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Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2)[2024] QIRC 259

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2)[2024] QIRC 259

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259

PARTIES:

Hitchcock, Elizabeth

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

GP/2023/31

PROCEEDING:

Interlocutory application – application for disclosure

DELIVERED ON:

7 November 2024

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

HEARD ON:

On the papers

ORDER:

  1. The application is dismissed.

CATCHWORDS:

GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – Application in existing proceedings for disclosure – where Respondent objects to the disclosure on the basis that the Applicant has not established the direct relevance of the documents sought – where the Applicant has not made submissions with respect to how the documents are directly relevant to an allegation in issue – where the application for disclosure is dismissed.

LEGISLATION:

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

CASES:

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258

Kelsey v Logan City Council & Ors (No. 6) [2018] QIRC 115

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

Reasons for Decision

  1. [1]
    The substantive proceeding in this matter is a general protection application made pursuant to Chapter 8 of the Industrial Relations Act 2016 (Qld). The hearing of the general protection application is currently listed to commence on 18 November 2024. The reasons in Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258 sets out a general background to the general protection application.
  1. [2]
    This application is an application for orders for disclosure.  The terms of the relief sought by the Applicant is as follows:[1]

The Respondent is to file a second affidavit of McKAY in the Proceeding, exhibiting the documents listed in the schedule contained at THA3-03 of Affidavit No.3 of Thomas Henry Allan within 14 days.

  1. [3]
    During the course of hearing a separate application on 8 August 2024, the Applicant’s representatives also sought to make an application seeking orders with respect to disclosure.  It became apparent during brief submissions, that the application for disclosure arose in the context of correspondence having been sent by the Applicant’s solicitor the previous evening to the Respondent’s solicitors requesting certain documents.  
  1. [4]
    I subsequently issued orders that the Applicant file and serve an application, supporting affidavit, and written submissions by 4.00pm on 9 August 2024 with respect to the application for disclosure. The Respondents were directed to file any affidavit and written submissions in response by 4.00pm on 15 August 2024.
  1. [5]
    Whilst the Applicant filed an application and supporting affidavit, the Applicant did not file any written submissions setting out the basis upon which she asserts that she is entitled to the relief sought.
  1. [6]
    An affidavit of Mr Thomas Allan, the Applicant’s solicitor, was filed in support of the application.  That affidavit refers to an affidavit filed in the substantive proceedings on behalf of Mr Peter McKay on 25 June 2024 which exhibited written transcripts of records of interview conducted by the Respondent.
  1. [7]
    The Applicant subsequently sought and received from the Respondent the audio files of the records of interview.
  1. [8]
    Mr Allan’s affidavit then sets out that he requested copies of all documents that the investigator put to interviewees, or alternatively, all documents produced to the investigator by the interviewees from the Respondent’s legal representatives.  Mr Allan does not identify in his affidavit the basis for the request for the documents.
  1. [9]
    Attached to Mr Allan’s affidavit is a schedule of the documents requested by him. That schedule is attached to these reasons and marked Appendix 1.
  1. [10]
    It is apparent from the schedule that a number of the documents have been classed as “unidentified email” which were referenced by the interview or interviewee during the course of the interview.
  1. [11]
    Mr Allan’s affidavit also states that:
  1. 13.
    the Proceeding is part heard and adjourned. Accordingly, this matter of production is permitted to be brought orally.
  1. [12]
    The purpose of that statement is unclear in circumstances where the Commission had already issued orders for the application and the supporting material to be made in writing. Further, whilst it is noted that the proceedings are on foot, the hearing with respect to the substantive application is yet to commence. The Applicant has not opened her case.  The hearing was adjourned to 18 November 2024 because the parties raised other interlocutory applications that were required to be determined prior to the hearing commencing.

Duty of disclosure

  1. [13]
    The Industrial Relations (Tribunals) Rules 2011 (Qld) (‘Tribunals Rules’) sets out the powers of the Commission in relation to orders for further disclosure:
  1. 41
    Directions orders
  1. (1)
    The court, commission or registrar may make an order (a directions order) about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
  1. (2)
    A directions order may, for example, relate to the following—
  1. …
  1. (o)
    requiring disclosure of documents;
  1. …
  1. [14]
    Rule 46(1) of the Tribunals Rules sets out the duty of disclosure in the following terms:
  1. 46
    Duty of disclosure
  1. (1)
    If a directions order requiring disclosure of documents is made, a party must disclose any document that—
  1. (a)
    is directly relevant to the proceeding or a matter in issue in the proceeding; and
  1. (b)
    is in, or comes into, the possession of the party.
  1. (2)
    A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
  1. (3)
    Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
  1. [15]
    The Respondent objects to the orders sought by the Applicant on the basis that:
  1. a.
    The Applicant has not established the direct relevance of the documents sought, as well as the objective likelihood that the documents exist, and the mere fact that a document is referred to in an investigation interview does not make it directly relevant to the issues which must be decided in this proceeding;[2] and
  1. b.
    “Further, there is no basis established as to the order sought that the documents be disclosed by way of a further affidavit by Mr McKay. It is not said that Mr McKay had access to the documents sought by the applicant’s request. There is no suggestion that these documents were before Mr McKay as part of his determinations in the show cause process. The applicant has not established that it is material in respect of which Mr McKay would be in a position to give direct evidence about.”
  1. [16]
    The Applicant did not file any written submissions to accompany their application, however, the following brief submissions were made after the matter was raised orally (and before the directions were issued) on 8 August 2024:[3]
  1. 15
    MR ALLAN: My point, which is lost in those submissions, respectfully, is they’ve got a model litigant obligation because I don’t have to show it’s directly relevant; their case depends on, in their response – in their pleaded response – McKay’s state of mind and why he’s maintaining that the reasons for termination are as he stated. The only information that he had was from Gleeson that’s referred to in that report. That information included the records of interview, the transcripts.
  1. [17]
    I do not accept the proposition that the Applicant does not need to establish that the documents are directly relevant in order to establish that she is entitled to the relief sought. The "directly relevant" test set out in r 46 of the Tribunals Rules is intended to impose a threshold on the process of discovery.[4]
  1. [18]
    By operation of r 46 of the Tribunals Rules, the obligation in respect of disclosure applies to documents directly 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.[5]
  1. [19]
    The Applicant has not attempted, by reference to the proceedings before the Commission, to establish that the documents are required to be disclosed pursuant to r 46. It appears to be the Applicant’s position that because other documents are referred to in the transcripts of interview then they should be disclosed. However, that position does not have regard to whether such documents are directly relevant to an allegation in issue in the proceeding. Put simply, those documents were not before Mr McKay and he does not refer to them in his evidence.
  1. [20]
    Further, the terms of the relief sought by the Applicant require Mr McKay to produce the documents. It is not apparent on the material before me that Mr McKay would be in a position to comply with such an order if it were to be made.
  1. [21]
    The Respondent has disclosed material which Mr McKay, as the relevant decision maker, is said to have regard to in the course of making the decisions relevant to the general protection application.  Mr McKay’s affidavit deposes to him having regard to material including the transcripts of the record of interviews when considering the matter. There is no material before the Commission to suggest that Mr McKay had regard to the documents in the process of his decision making that are now sought to be disclosed by the Applicant.  
  1. [22]
    The Applicant has not established any basis upon which she is entitled to the relief sought in the application filed on 9 August 2024.
  1. [23]
    The application for disclosure is dismissed.

Orders

  1. [24]
    I make the following order:
  1. The application is dismissed.

Appendix 1

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259

Footnotes

[1] Application in existing proceedings filed by the Applicant on 9 August 2024.

[2] Outline of argument filed by the Respondent on 15 August 2024.

[3] Transcript of proceedings dated 8 August 2024, 40, 15-20.

[4] Kelsey v Logan City Council & Ors (No. 6) [2018] QIRC 115, 15.

[5] Watton v TAFE Queensland (No 2) [2021] QIRC 299, 9.

Close

Editorial Notes

  • Published Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2)

  • Shortened Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2)

  • MNC:

    [2024] QIRC 259

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    07 Nov 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258
2 citations
Jump To
Cite 1 - [2024] QIRC 258
Cite 2 - [2024] QIRC 258
Kelsey v Logan City Council & Ors (No.6) [2018] QIRC 115
2 citations
Jump To
Cite 1 - [2018] QIRC 115
Cite 2 - [2018] QIRC 115
Watton v TAFE Queensland (No.2) [2021] QIRC 299
2 citations
Jump To
Cite 1 - [2021] QIRC 299
Cite 2 - [2021] QIRC 299

Cases Citing

Case NameFull CitationFrequency
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5) [2024] QIRC 2761 citation
1

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