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  4. Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3) - [2024] QIRC 260

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Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3)[2024] QIRC 260

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3)[2024] QIRC 260

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3) [2024] QIRC 260

PARTIES:

Hitchcock, Elizabeth

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

GP/2023/31

PROCEEDING:

Interlocutory application – Leave to file second amended application

DELIVERED ON:

7 November 2024

MEMBER:

Hartigan DP

HEARD AT:

On the papers.

ORDER:

  1. Leave is granted for the Applicant to file the further amended application attached to the affidavit of Mr Thomas Allan filed 9 August 2024 at Exhibit THA4-01.

CATCHWORDS:

GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – Order in place directing that the Applicant must seek the Commission’s leave prior to filing any further amended applications in the proceedings – application for leave to file a further amended application – where Respondent objects to the application on the ground of relevance – where leave is granted.

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 451, 539

Industrial Relations (Tribunals) Rules 2011 (Qld) rr 20, 226

CASES:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

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

Wong v National Australia Bank [2022] FCAFC 155; 318 IR 148

Reasons for Decision

Introduction

  1. [1]
    This decision is in relation to the interlocutory orders sought by the Applicant for leave to file a third further Amended Application in the proceedings.[1]
  1. [2]
    The substantive proceedings to which this application relates is a general protection application commenced pursuant to Chapter 8, Part 1 of the Industrial Relations Act 2016 (Qld) (‘IR Act’).
  1. [3]
    The reasons in Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258 set out the relevant background to the substantive proceedings.

Relevant background to this application

  1. [4]
    On 26 October 2023, the Applicant filed an application commencing the substantive proceedings.  
  1. [5]
    On 23 January 2024, the Applicant filed an Amended Application in the proceedings.
  1. [6]
    The substantive proceedings were listed for a six (6) day hearing, commencing on Monday, 5 August 2024.
  1. [7]
    On Wednesday, 31 July 2024, three business days prior to the commencement of the hearing, the Applicant filed a ‘further Amended Application’ in the proceedings.
  1. [8]
    Prior to the commencement of the hearing on 5 August 2024, the parties sought to deal with a number of preliminary matters.
  1. [9]
    Relevantly, the parties first dealt with an objection raised by the Respondent with respect of the further Amended Application. Specifically, the Respondent objected to the further amendments on the basis that the amendments were, inter alia, not in the proper form as prescribed by r 19 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘IR Rules’) and were not sufficiently particularised. The Respondent did not object to the further Amended Application having been filed.
  1. [10]
    After hearing from the parties, the commencement of the hearing of the substantive application was adjourned to 18 November 2024, and a directions order was issued by consent[2] to enable:
  1. a.
    the Respondent to seek further and better particulars from the Applicant in relation to the further Amended Application;
  1. b.
    the Applicant to file a second further Amended Application with the amendments marked as prescribed by r 19 of the IR Rules, limited to responding to the Respondent’s request for further and better particulars;
  1. c.
    the parties to file any additional affidavit evidence relevant to the matter, arising from the Applicant’s amendments to the application; and
  1. d.
    the parties to file new outlines of argument, addressing matters arising from the Applicant’s amendments and any fresh evidence produced.
  1. [11]
    Relevantly, the directions state that the Applicant was not permitted to file any further amended application in the proceedings without leave of the Commission.
  1. [12]
    The matter was listed for an interlocutory hearing on 8 August 2024 to hear from the parties in relation to some preliminary matters raised on 5 August 2024 and with respect to costs.
  1. [13]
    At the hearing on Thursday, 8 August 2024, the Applicant sought leave of the Commission to file a further amended application in the proceedings which included amendments beyond the further and better particulars requested by the Respondent.
  1. [14]
    On Monday, 12 August 2024, the Applicant filed an interlocutory application in relation to their request for leave to file a further amended application (‘Application’).

Statutory Framework

  1. [15]
    The general powers of the Commission are set out under s 451 of the IR Act. Section 451 relevantly provides:

451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1) , the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. (3)
    The commission may, by general order or for a particular case, delegate to the registrar—
  1. (a)
    the working out of a decision of the commission to implement the decision; or
  1. (b)
    a function relating to the decision, including, for example—
  1. (i)
    the giving of directions; or
  1. (ii)
    the making of orders; or
  1. (iii)
    the preparation of rosters and schedules; or
  1. (iv)
    a similar function it considers appropriate.
  1. (4)
    The full bench may, to assist it in the resolution of proceedings—
  1. (a)
    refer the whole or part of a question or matter before it to the commission—
  1. (i)
    for investigation by the commission and the preparation of a report on the investigation; or
  1. (ii)
    for another action it decides; or
  1. (b)
    direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
  1. (5)
    The commission or member must comply with the reference or direction.
  1. [16]
    Section 539 of the IR Act sets out the incidental powers of the Commission in relation to the amendment of claims and irregularities in proceedings: 

539  Powers incidental to exercise of jurisdiction

Except as otherwise provided for by this Act or the rules, the court, commission or registrar may –

…

  1. (d)
    allow claims in the proceedings to be amended on terms that appear fair and just; and
  1. (e)
    correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal.”
  1. [17]
    Rule 20 of the IR Rules provides for the amendment of applications after the hearing of the application has commenced:

20 Amending an application during hearing

  1. (1)
    After the hearing of an application has started, an applicant may apply to the court, commission or registrar hearing the application for leave to amend the application.
  1. (2)
    If the proposed amendments substantially alter the scope and nature of the claim, the applicant must file an amended application that incorporates the proposed amendments.
  1. (3)
    An amendment may be allowed or disallowed on the terms the court, commission or registrar considers appropriate.
  1. [18]
    It is noted that this amendment has been sought prior to the commencement of the hearing of the substantive application.
  1. [19]
    Rule 226 of the IR Rules clarifies the circumstances in which an irregularity may arise:

226  Effect of failure to comply with rules

  1. (1)
    A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.
  1. (2)
    If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may –

…

  1. (f)
    make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.”
  1. [20]
    In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (‘Aon v ANU’), the High Court has unanimously upheld that the attainment of justice between the parties is the paramount consideration when determining an application seeking leave to amend pleadings:[3]

In reversing the decision of the Full Federal Court, which upheld the primary judge's refusal to grant leave to amend the defence, this Court held case management principles to be relevant, but said that they could not be used to prevent a party from litigating a fairly arguable case.

In their joint judgment, Dawson, Gaudron and McHugh JJ reaffirmed the "principles established in Cropper v Smith and accepted in Clough and Rogers v Frog...". They held that nothing said in Sali suggested that proper principles of case management might be employed, except perhaps in extreme circumstances, to shut a party out from litigating a case which was fairly arguable. Their Honours said:

"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

And further:

"Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."

Kirby J wrote a concurring judgment.

It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

Orders Sought

  1. [21]
    The orders sought by the Applicant are as follows:

The Applicant be granted leave to file the second further amended application in the proceeding exhibited at THA4-01 to the Affidavit No.4 of Thomas Henry Allan dated 9 August 2024.[4]

  1. [22]
    In summary, the Application includes the addition of:
  1. a.
    paragraph 43(d), alleging that the ‘Investigation Report of Gleeson’, which records the investigation against the Applicant and the findings made, contained omissions;
  1. b.
    paragraph 43A, which sets out the premises upon which the decisions of Mr Peter McKay to issue the Applicant with the Show Cause Notice and Disciplinary Decision, in reliance on the Investigation Report, were allegedly “wrong and unfair”;
  1. c.
    paragraph 45(n), “Adverse Action 7”, being an allegation that the dismissal of the Applicant from her employment on 5 October 2023 constitutes adverse action in contravention of s 285(1)(a)(ii) of the IR Act; and
  1. d.
    paragraph 55(b), which sets out that Adverse Action 7 was adverse by reasons of the facts and matters alleged in paragraphs 43 and 43A.
  1. [23]
    It is noted that “Adverse Action 7” was included in similar terms in the Applicant’s application dated 6 October 2023 and amended application dated 23 January 2024, however, was removed by deletion from the Applicant’s further amended application dated 31 July 2024.
  1. [24]
    The Applicant submits that “leave is sought in order to plead the Applicant’s case more completely, so that the Commission and the Respondent can be fully appraised, in the pleading itself, of the central issues the Applicant wishes the Commission to determine”, in circumstances where they have previously been identified in the:
  1. a.
    Applicant’s Outline of Opening Submissions filed 1 August 2024 at paragraphs 8 to 17;
  1. b.
    Affidavit of Elizabeth Hitchcock filed 26 April 2024; and
  1. c.
    Affidavit of Elizabeth Hitchcock filed 8 July 2024.
  1. [25]
    The Applicant submits that paragraph 43(d) and 43A, allege the “material facts as to why the decisions by McKay to issue a show cause notice on 24 August 2023 and to terminate the applicant’s [employment] on 5 October 2023 were wrong and unfair whereby the conclusions and opinions he reached were not properly formed or, alternatively, did not relevantly actuate the conduct of Mr McKay”.
  1. [26]
    The Applicant refers to the following principle articulated in the case of Wong v National Australia Bank[5] in support of its submission that the amended paragraphs assist in determining an issue in dispute:
  1. [93]
    After summarising the principles in Barclay, the primary judge (correctly) described the nature of his task in the following terms:

…

  1. [83]
    In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?
  1. [27]
    On 15 August 2024, the Respondent filed submissions in reply to the Application, objecting to leave being granted.
  1. [28]
    Broadly, the Respondent submits that amendments significantly expand the scope of the factual dispute in this matter and give rise to a real possibility that the hearing will not conclude within the five-day timeframe presently allotted, resulting in the parties incurring further costs in the context of a general protection proceedings.
  1. [29]
    The Respondent further submits that the amendments are futile to the resolution of the issues in dispute, and have the potential to prejudice to the Respondent if the amendments were to be allowed.
  1. [30]
    The Respondent contends that the inclusion of paragraph 43(d) is of no utility as:
  1. a.
    the collateral attacks on the investigation report do not assist the Commission to resolve the real issues in dispute; and
  1. b.
    it enlivens broad ranging factual matters that would significantly expand the scope of the hearing and concomitantly, time and cost involved, to no real end.
  1. [31]
    The Respondent objects to the proposed amendments at paragraph 43A on the submission that they do not assist in establishing that the actions of the decision maker, Mr McKay, in substantiating the allegations against the Applicant and terminating her from her employment, were motivated by a proscribed reason.
  1. [32]
    It is difficult to accept the Respondent’s submissions in this regard in circumstances where Mr McKay’s conduct in substantiating the allegations against the Applicant and in terminating her employment is in issue.
  1. [33]
    Further, on the Respondent’s case it appears to be contended that Mr McKay was briefed with and had regard to the relevant material including the investigation report prior to engaging in the alleged proscribed conduct.
  1. [34]
    Consequently, I do not consider the amendments with respect to the inclusion of paragraphs 43(d) or 43A to be obviously futile nor would they cause substantial prejudice or injustice which could not be compensated by costs.
  1. [35]
    Paragraphs 43(d) and 43A contend that Mr McKay’s conduct in relying on the investigation report was unfair in circumstances where the report contained omissions.
  1. [36]
    Whilst paragraph 43(d) is critical of the Investigation Report, it does not, on it terms, allege any fresh or new contravention of the protection afforded by s 285 of the IR Act.
  1. [37]
    The Respondent objects to the inclusion of paragraphs 45(n) and 55(b) on the basis that:

[the] alleged adverse action of dismissal (Adverse Action 7) is expressly linked to the flawed paragraphs at 43 and 43A. What the applicant fails to do here is to clearly plead the proscribed reason or intent for taking the adverse action of termination (so as to enliven s 306). If these amendments were allowed, the respondent would still be left guessing as to what is alleged to have been the motivating reason for the applicant’s dismissal.

  1. [38]
    Although there has been no such concession, the deletion of Adverse Action 7 from the further amended application filed on 31 July 2024 appears to have been made in error.
  1. [39]
    Adverse Action 7 was included in the original application filed on 6 October 2023. The allegation that the Applicant’s employment was terminated for adverse reasons proscribed by the IR Act is clearly a significant component of the Applicant’s case and the parties prepared for the hearing that was originally listed to commence on 5 August 2024 on the basis that it formed a component of the Applicant’s case.
  1. [40]
    For these reasons, I conclude that the re-inclusion of the allegation referred to in paragraphs 45(n) and 55(b) is not obviously futile and their inclusion would not cause substantial prejudice or injustice which could not be compensated by costs.
  1. [41]
    Consequently, leave is granted for the Applicant to file the further amended application attached to the affidavit of Mr Thomas Allan filed 9 August 2024 at Exhibit THA4-01. Costs of the application are reserved.

Order

  1. [42]
    For the above reasons, I make the following order:
  1. Leave is granted for the Applicant to file the further amended application attached to the affidavit of Mr Thomas Allan filed 9 August 2024 at Exhibit THA4-01.

Footnotes

[1] Application in existing proceedings filed by the Applicant on 12 August 2024.

[2] Directions Order dated 5 August 2024.

[3] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 28–30.

[4] Applicant’s application in existing proceedings filed 12 August 2024.

[5] [2022] FCAFC 155; 318 IR 148.

Close

Editorial Notes

  • Published Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3)

  • Shortened Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3)

  • MNC:

    [2024] QIRC 260

  • 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
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
3 citations
Jump To
Cite 1 - (2009) HCA 27
Cite 2 - (2009) HCA 27
Cite 3 - (2009) HCA 27
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
Wong v National Australia Bank Ltd [2022] FCAFC 155
2 citations
Jump To
Cite 1 - [2022] FCAFC 155
Cite 2 - [2022] FCAFC 155

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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