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  4. Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5) - [2024] QIRC 276

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Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5)[2024] QIRC 276

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5)[2024] QIRC 276

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5) [2024] QIRC 276

PARTIES:

Hitchcock, Elizabeth

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

GP/2023/31

PROCEEDING:

General protections – applications in existing proceedings

DELIVERED ON:

Orders made 22 November 2024, reasons delivered on 26 November 2024

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

HEARD ON:

21 November 2024

ORDER:

  1. The order sought by the Respondent pursuant to s 539(j) of the IR Act is dismissed.
  1. The order sought by the Respondent pursuant to s 580(5) of the IR Act is dismissed.
  1. Pursuant to r 97(3) of the IR Rules, the transcript of the decision and written reasons as to the Applicant’s application on 15 November 2024 be withheld from publication until the appeal with respect of that decision to the Industrial Court of Queensland has been determined or otherwise resolved.
  1. Costs in relation to each of the applications are reserved.

CATCHWORDS:

GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – Application by the Respondent for extension of time for compliance with order – where order was issued for the Respondent to disclose documents by 4.00pm on 19 November 2024 – where application to extend time for compliance filed after 19 November 2024 – where appeal and application for a stay of the decision said to be filed in the Industrial Court of Queensland – where the application is objected to by the Applicant – whether the Commission has the powers to grant the order sought by the Respondent – application dismissed.

GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – NON-PUBLICATION – where the Respondent seeks that copies of unredacted documents exhibited in an affidavit filed by the Applicant and referred to in the reasons for decision – where application opposed by the Applicant on the submission that the Commission lacks jurisdictions to make the orders sought – where order made for the decision and written reasons be withheld from publication until the application to appeal before the Industrial Court of Queensland has been determined or otherwise resolved.

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 451, 536, 539, 566, 580.

Industrial Relations (Tribunals) Rules (Qld) r 97

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

Supreme Court Rules 1970 (NSW) r 3

Uniform Civil Procedure Rules 1999 (Qld) r 7

CASES:

ASIC v Adler [2002] NSWSC 510.

Chaves v Moreton Bay Regional Council [2009] QSC 179.

FAI General Insurance Co Ltd v Southern Cross Exploration N2 (1988) 165 CLR 268.

Gilbert v Metro North (no 2) [2023] ICQ 20.

In the making of the Western Downs Regional Council Personal Carers and Support Workers Certified Agreement 2021 [2021] QIRC 292.

J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10.

McIntosh v Link Nominees Pty Ltd [2010] Qd R 152.

Morgan v State of Queensland (Queensland Health) [2020] QIRC 184.

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507.

Rintoul v State of Queensland [2015] QCA 79.

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362.

APPEARANCES:

Mr G. Allan instructed by Allan Bullock Solicitors & Advocates for the Applicant.

Ms J. Marr instructed by Crown Law for the Respondent.

Reasons for Decision

First Application

  1. [1]
    The substantive proceeding in this matter is a general protection application, the trial of which was due to commence before the Queensland Industrial Relations Commission (‘Commission’) on Wednesday, 20 November 2024. The trial has not yet commenced.
  1. [2]
    Several interlocutory applications have been made in the proceedings and have been dealt with in the following decisions:
  1. Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258;
  1. Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259; and
  1. Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3) [2024] QIRC 260.
  1. [3]
    In addition to those matters, on Tuesday, 19 November 2024, I heard an application for disclosure of legal advices and associated documents on the basis of waiver of legal professional privilege, and an application to strike out paragraphs 1A - 58 of the Respondent’s amended response.  On the same day, I issued a decision and delivered ex tempore reasons with respect to each of those applications, the written copy of which has subsequently been distributed to the parties. 
  1. [4]
    On 20 November 2024 and 21 November 2024, respectively, the Respondent filed two applications in the proceedings. The first application seeks that I vary an order, being the decision I issued on 19 November 2024, to extend time pursuant to s 539(j) of the Industrial Relations Act 2016 (Qld) (‘IR Act’) and the second application seeks that I make orders prohibiting publication of documents in reliance on s 580(5) of the IR Act or, in the alternative, r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘IR Rules’).
  1. [5]
    The applications are each opposed by the Applicant.
  1. [6]
    On Friday, 22 November 2024, the Commission issued orders in the terms set out in Order 1 to 4 herein. These are the reasons for that decision.
  1. [7]
    Prior to considering the substance of the applications it is necessary to detail the relevant background.

Relevant background to the applications

  1. [8]
    By an application heard on 8 August 2024, the Applicant sought an order for the production of documents over which the Respondent claimed legal professional privilege.  Specifically, the documents sought for disclosure by the Applicant were legal advice provided by the Respondent’s lawyers to the Respondent and unredacted copies of documents exhibited to the Affidavit of Mr Peter McKay[1], being Briefing Note PM-06 and Briefing Note PM-07.
  1. [9]
    On 7 November 2024, I allowed the application[2] insofar as I ordered the disclosure of the unredacted copies of Briefing Note PM-06 and Briefing Note PM-07. I did not order disclosure with respect to the legal advice.
  1. [10]
    On 11 November 2024, the Respondent seemingly complied with the orders and disclosed the unredacted briefing notes to the Applicant.
  1. [11]
    On 15 November 2024, the Applicant filed an application seeking the following orders:
  1. The respondent disclose the legal advice from Crown Law dated 8 June 2023, referred to in the unredacted copy of the briefing note PM-06, by 4 pm on Tuesday, 19 November 2024 (‘Order 1’)
  1. The respondent disclose the legal advice from Crown Law dated 2 August 2023, referred to as “Attachment 3” in the unredacted copy of briefing note PM-07, by 4 pm on Tuesday, 19 November 2024 (‘Order 2’);
  1. The respondent disclose the information provided by Crown Law by Gavin Gleeson, to prepare the legal advice dated 2 August 2023, and referred to as “Attachment 2” in the unredacted copy of briefing note PM-07, by 4 pm on Tuesday, 19 November 2024 (‘Order 3’);
  1. The respondent pay the applicant’s costs of and incidental to the interlocutory application filed by the applicant on 15 November 2024 (‘Order 4’).

(‘the 15 November application’)

  1. [12]
    The Applicant also filed written submissions and an affidavit in support of the 15 November application on 15 November 2024.
  1. [13]
    On 15 November 2024 directions were issued requiring the Respondent to provide written submissions in response to the application by 4.00pm on 18 November 2024 and the application was listed to be heard at 9.30am on 19 November 2024.
  1. [14]
    The Respondent filed submissions in compliance with the directions order on 18 November 2024.
  1. [15]
    The 15 November application was listed to be heard with the Applicant’s other application to strike out paragraphs of the Respondent’s further amended response and counterclaim on Tuesday, 19 November 2024. It is relevant to note that the trial was listed to commence on Wednesday, 20 November 2024.
  1. [16]
    After hearing from the parties on each of the applications on 19 November 2024 ex tempore reasons were delivered with respect to both applications. With respect to the 15 November application, it was determined that the orders sought by the applicant in paragraphs 1, 3 and 4 of the 15 November 2024 application be dismissed, but relevantly the relief sought in paragraph 2 was granted. Costs were reserved. (‘the decision’)
  1. [17]
    As noted above, Order 2 required that the Respondent disclose the legal advice from Crown Law dated 2 August 2023, referred to as “Attachment 3” in the unredacted copy of Briefing Note PM-07, by 4.00pm on Tuesday, 19 November 2024.
  1. [18]
    At 7.58pm on 19 November 2024, the Respondent emailed an application to the Industrial Registry seeking to stay the decision with respect to Order 2 of the 15 November application.[3]
  1. [19]
    Given that the application was emailed out of hours, the application seeking the stay was not filed until 20 November 2024. As noted above, the trial with respect to the substantive proceeding was due to commence on that day.
  1. [20]
    The terms of the relief sought in the stay application were as follows:

Pursuant to ss 451 or 536 or 539(f) of the Industrial Relations Act 2016, the Respondent seeks an order that the Commission's decision delivered orally on 19 November 2024 allowing paragraph [2] of the Applicant's Application filed 15 November 2024 be stayed for a period of at least 21 days to enable the Respondent to consider its appeal rights in respect of that decision pursuant to s 557 of the Industrial Relations Act 2016.

  1. [21]
    An affidavit of Samantha Robinson, Lawyer, Crown law, was filed in support of the application. Whilst that affidavit deposed to the email being sent to the Registry at 7.58pm on 19 November 2024, it did not detail any other steps taken by, on or behalf of the Respondent either before or after the expiration of the order at 4.00pm on 19 November 2024, to comply with the decision or alternatively, any other relevant step taken. It did not detail why the order was not complied with. Further, it did not detail the basis upon which the Respondent required 21 days to consider its appeal rights in circumstances where the trial was due to commence on 20 November 2024, nor did it provide an explanation as to why the Respondent did not file a Notice of Appeal in the Industrial Court of Queensland (‘Industrial Court’) prior to making the application for the stay.
  1. [22]
    The application for the stay was heard at 10.00am on Wednesday, 20 November 2024. 
  1. [23]
    At the hearing of the stay application, the Respondent submitted that the stay was sought to the effect that it be relieved from complying with Order 2 of the decision of the Commission for a period of 21 days to allow the Respondent to consider its appeal rights with respect of that order.
  1. [24]
    The stay sought by the Respondent was only with respect to Order 2. The Respondent did not seek for the matter to be adjourned, even in circumstances where the stay was granted. In this regard, the Respondent submitted that the substantive matter could still be heard in circumstances where the Respondent was of the view that the document ordered to be disclosed was only relevant to one of eight adverse claims and to the evidence of the final witness.
  1. [25]
    The Respondent contended that the stay be granted on the basis that the Respondent wished to consider its appeal rights for which, in its submission, a party usually has 21 days. 
  1. [26]
    During the course of the hearing of the stay application, I enquired of the Respondent as to why it had not sought a stay in reliance on the specific power to grant a stay contained in s 566 of the IR Act. Counsel for the Respondent acknowledged that s 566 of the IR Act had been contemplated by the Respondent but was not relied on as it had not filed an appeal of Order 2 of the decision.
  1. [27]
    The hearing was briefly adjourned to allow Counsel for the Respondent to seek instructions as to whether the Respondent intended to appeal Order 2 of the decision or what steps it otherwise intended to take. The parties were also asked to confer with one another and consider the practical consequences of the matter proceeding if the Respondent proceeded with any potential appeal.
  1. [28]
    Upon resumption, the Respondent withdrew its stay application and consented to the Applicant’s request for an adjournment.[4] Counsel for the Respondent indicated that she did not have instructions to comply with Order 2 as she was still seeking instructions about potentially filing a notice of appeal and an application for stay in the Industrial Court.
  1. [29]
    In circumstances where the Respondent’s application for a stay had been withdrawn, no appeal had been filed, and the Applicant’s request for an adjournment was contingent on the stay application being granted, the Respondent was asked to explain the grounds upon which they considered the order should not be complied with and the substantive proceedings should not resume.
  1. [30]
    The matter was again briefly adjourned to enable the Respondent to seek further instructions.
  1. [31]
    Subsequently, upon resuming the Respondent withdrew their withdrawal of the stay application and sought the matter to be stood down to enable to Respondent to file a notice of appeal. Following the filing of this appeal, the Respondent intended to amend the existing stay application to seek orders under s 566 of the IR Act that the order be stayed pending the determination of the appeal.
  1. [32]
    Given the somewhat unconventional manner in which the Respondent’s application was made and then withdrawn, it was proposed that the hearing of the proposed fresh application be adjourned until the following day[5] to enable the Respondent to obtain clear instructions with respect to the application. Directions were issued that the Respondent file and serve any application by 5.00pm that day.
  1. [33]
    At 4.53pm the Respondent emailed a further application to the Applicant and the Commission. By this fresh application, the Respondent sought to now rely on s 539(j) of the IR Act to seek relief in the following terms:

Pursuant to s 539(j) of the Industrial Relations Act 2016 (Qld), the Respondent seeks an order that the Commission extend time for compliance with its order delivered orally on 19 November 2024 allowing paragraph [2] of the Applicant's Application filed 15 November 2024 until the determination of the Respondent's stay application before the Industrial Court of Queensland filed 20 November 2024.

(‘the 539(j) application’)

  1. [34]
    There was no affidavit filed in support of the s 539(j) application. 
  1. [35]
    On 21 November 2024, the Respondent filed a further application seeking to restrict the publication of the decision of 19 November 2024 in the following terms:

Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), the Respondent seeks an order that Deputy President Hartigan’s reasons as to the Applicant’s Application of 15 November 2024 not be published until further order.

(‘non-publication order application’)

  1. [36]
    At the outset of the hearing on 21 November 2024, Counsel for the Applicant, Mr Allan, indicated that he wished to be heard with respect to a jurisdictional matter.
  1. [37]
    Mr Allan contended that the Commission should exercise its discretion not to hear from the Respondent on the basis of the general proposition that a person in contempt cannot be heard from the court.[6]
  1. [38]
    After hearing from Mr Allan and noting that Counsel for the Respondent, Ms Marr, contended that she was able to be heard on the Respondent’s application, I delivered brief reasons as to why I would hear the Respondent on the s 539(j) application.
  1. [39]
    At the outset of hearing the s 539(j) application, the Respondent sought to file an amended non-publication order application seemingly to replace the earlier non-publication order application. The terms of the amended non-publication order were as follows:
  1. Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), the Respondent seeks an order that:
  1. The unredacted version of the briefing notes comprising PM-06 and PM-07 to the affidavit of Peter McKay of 25 June 2024 (Unredacted Briefing Notes); and/or
  2. Deputy President Hartigan’s reasons as to the Applicant’s Application of 15 November 2024; and/or
  3. The Unredacted Briefing Notes exhibited at EH05-01 to the affidavit of Elizabeth Hitchcock filed on 14 November 2024 and exhibited at TAH-06-01 to the affidavit of Thomas Allan filed on 15 November 2024.

are prohibited from being released, searched or published to any person other than:

  1. the President or Vice-President;
  2. a Commissioner;
  3. the applicant and the applicant’s legal representatives; or
  4. the respondent and the respondent’s legal representatives.
  1. That no person in receipt of any of the materials identified in 1.a. and b above shall publish the material in whole or in part of any person.
  1. That any person in receipt of the materials shall:
  1. use the materials for no purpose other than this proceeding (or in the appeal commenced by Notice of Appeal on 20 November 2024);
  2. at all times keep the materials in a confidential and secure manner, until further order.
  1. [40]
    Further, in the course of hearing from the Respondent’s Counsel on the amended non-publication order, the Respondent sought to amend the terms of the amended non-publication order further to include that the relief was sought in reliance, in the alternative, on r 97 of the IR Rules.

Section 539(j) application for a stay

Relevant statutory provisions

  1. [41]
    The Respondent’s first application for a stay sought to rely, alternatively on, ss 451, 536 or 539(f) of the IR Act.
  1. [42]
    Section 451 of the IR Act provides for the general powers of the Commission as follows:

451 General powers

  1. The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. Without limiting subsection (1) , the commission in proceedings may—

(a) give directions about the hearing of a matter; or

(b) make a decision it considers appropriate, irrespective of the relief sought by a party; or

(c) make an order it considers appropriate.

  1. The commission may, by general order or for a particular case, delegate to the registrar—

(a) the working out of a decision of the commission to implement the decision; or

(b) a function relating to the decision, including, for example—

(i) the giving of directions; or

(ii) the making of orders; or

(iii) the preparation of rosters and schedules; or

(iv) a similar function it considers appropriate.

  1. The full bench may, to assist it in the resolution of proceedings—

(a) refer the whole or part of a question or matter before it to the commission—

(i) for investigation by the commission and the preparation of a report on the investigation; or

(ii) for another action it decides; or

  1. direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
  1. The commission or member must comply with the reference or direction.
  1. [43]
    Section 536 of the IR Act provides for the type of matters the Commission may issue directions or make orders about before the commencement of a hearing as follows:

536 Interlocutory proceedings

For conducting proceedings under this Act or another Act, the court, commission or registrar may make orders or give directions the court, commission or registrar considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings, including matters about the following—

(a) naming and joinder of parties;

(b) persons to be served with notice of proceedings;

(c) calling of persons to attend in proceedings;

(d) particulars of the claims of the parties;

(e) the issues to be referred to the court or commission;

(f) admissions, discovery, interrogatories or inspection of documents or property;

(g) examination of witnesses;

(h) costs of the interlocutory proceedings;

(i) place, time and mode of hearing of the cause.

  1. [44]
    Section 539(f) provides for the Commission’s powers incidental to the exercise of jurisdiction as follows:

539 Powers incidental to exercise of jurisdiction

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

…

(f) give directions under a decision that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision

…

  1. [45]
    The IR Act also has a specific provision, s 566, dealing with an application for a stay as follows:

566 Stay of decision appealed against

(1) On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—

(a) the determination of the appeal; or

(b) a further order of the industrial tribunal.

(2) This section does not apply to an appeal under the Workers’ Compensation and Rehabilitation Act 2003 , chapter 13 , part 3 against a decision to allow an application for compensation under that Act.

  1. [46]
    The application that is now currently before the Commission relies on s 539(j) of the IR Act. Section 539(j) relevantly provides as follows:

539 Powers incidental to exercise of jurisdiction

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

…

(j) extend a prescribed or stated time, before or after expiry of the time; and

The Respondent’s submissions

  1. [47]
    The Respondent contends that it seeks an extension on the time for compliance with the decision to enable the Respondent to pursue a stay application and an appeal in the Industrial Court.
  1. [48]
    As noted above, no affidavit in support was filed with the s 539(j) application. Accordingly, there is no evidence before the Commission that an application for a stay or a Notice of Appeal has been filed by the Respondent in the Industrial Court. However, Counsel for the Respondent submitted, without objection from the Applicant, that an application for a stay and a Notice of Appeal had been filed. As neither of those documents have been placed before the Commission, the terms of those documents are unknown. It has been inferred from the submissions that the appeal is an appeal of Order 2 of the decision.
  1. [49]
    There was no indication given to the Commission that the Respondent had taken any steps for the stay application, or indeed the appeal, to be heard on an urgent basis in the Industrial Court.
  1. [50]
    The Respondent submits that the “extension seeks to do no more than to enable the State an opportunity to pursue its appeal rights without stultifying that pursuit by requiring production of a legal advice which the State maintains is protected by legal professional privilege.”
  1. [51]
    It is also apparent that the s 539(j) application seeks to redress the fact that the time for complying with Order 2 has now expired and the Respondent has not complied with that order. If it were to be granted an extension, the Respondent would then be in a position that it was no longer non-compliant with Order 2. 
  1. [52]
    Issues which require consideration with respect to the s 539(j) application include:
  1. whether s 539(j) empowers the Commission to extend time with respect to the compliance with Order 2 of the decision in the circumstances of this matter; and
  1. if s 539(j) does empower the Commission to extend time with respect to the compliance with Order 2 of the decision, whether the Commission should exercise its discretion to do so in the circumstances of this matter.
  1. [53]
    During the course of hearing from the parties, the Commission enquired as to what effect, if any, granting the order sought in the s 539(j) application would have on the appeal process in circumstances where the order that was sought to be extended, in addition to having expired, was now the subject of a stay application and an appeal to the Industrial Court.
  1. [54]
    The parties were directed to provide written submissions addressing this matter. The Applicant and Respondent each filed written submissions on this issue on 22 November 2024. 

Does the Commission have the power to issue the order sought by the Respondent pursuant to s 539(j) of the IR Act?

  1. [55]
    The task of determining whether the phrase “extend a prescribed or stated time before or after expiry of the time” in s 539(j) of the IR Act empowers the Commission to extend the time in an order of the Commission is a task of statutory construction.
  1. [56]
    The approach to be taken to ascertain the true meaning of words used is well settled. The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.[7]
  1. [57]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri[8] as follows:

[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

(citations omitted)

  1. [58]
    In SZTAL v Minister for Immigration and Border Protection[9] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[10]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

(citations omitted)

  1. [59]
    Commencing with the consideration of the words in s 539(j), “extend a prescribed as stated time before or after expiry of that time”, the words of the provision are potentially of wide application as there is no identification of what the prescribed or stated time relates to.
  1. [60]
    However, s 539(j) falls within s 539 which provides for the Commission’s powers incidental to the exercise of jurisdiction.
  1. [61]
    Section 539 appears in Part 5, Division 4 of the IR Act entitled “Powers”.
  1. [62]
    It includes a number of provisions about what the Commission may do, in the exercise of powers incidental to the exercise of jurisdiction as follows:

539 Powers incidental to exercise of jurisdiction

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

(a) at or before a hearing, take steps to find out whether all persons who are to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and

(b) direct, for proceedings—

  1. who the parties to the proceedings are; and
  1. by whom the parties may be represented; and
  1. persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and
  1. parties to be joined or struck out; and
  1. who may be heard and on what conditions; and

(c) hear and decide an industrial cause in the way that appears best suited for the purpose; and

(d) allow claims in the proceedings to be amended on terms that appear fair and just; and

(e) correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and

(f) give directions under a decision that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and

(g) hear and decide an industrial cause in the absence of a party, or person who has been called to attend or served with a notice to appear, at the proceedings; and

(h) sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and

(i) refer technical matters, accounting matters, or matters involving expert knowledge to an expert, and admit the expert’s report in evidence; and

…

(k) waive compliance with the rules.

  1. [63]
    As is apparent from the terms of s 539, the provision gives powers to the Commission which are in the nature of powers relating to practice and procedure. By its terms, s 539 is limited to making directions or orders incidental to the Commission’s jurisdiction as conferred by other sections of the IR Act.[11]
  1. [64]
    In the making of the Western Downs Regional Council Personal Carers and Support Workers Certified Agreement 2021,[12] the Commission[13] exercised the discretion to grant an extension of time, pursuant to s 539(j) of the IR Act, in circumstances where the relevant application was filed three days out of time from the time prescribed in s 189(3) of the IR Act.
  1. [65]
    In that matter the Commission observed:

[9]  Section 539 of the Act provides the Commission with powers incidental to the exercise of jurisdiction. These powers include, inter alia, a power to correct and amend an error of substance. Relevantly s 539(e) of the Act is in the following terms:

539 Powers incidental to exercise of jurisdiction

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

…

(e) correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and

…

[10]  Section 539(j) of the Act provides a power to extend a prescribed or stated time as follows:

539 Powers incidental to exercise of jurisdiction

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

…

(j) extend a prescribed or stated time, before or after expiry of the time; and

…

[11]  The application was filed 3 days out of time. The Council concedes that the application was filed late due to the Council’s misapprehension as to when the application should have been filed. I note that all parties consent to the application for an extension of time. In the circumstances of the matter, I consider that there is no prejudice to either the parties to the proposed agreement or to the agreement that has been struck by the parties if leave is granted. For these reasons, I consider it appropriate to exercise my discretion to grant an extension, pursuant to s 539(j) of the Act, to extend the time for filing the application to 16 August 2021.

  1. [66]
    In this matter however, the time period that the Respondent seeks to extend is not a time prescribed or stated in the IR Act or IR Rules but rather, is a time stated in an order issued by the Commission.
  1. [67]
    The Respondent contends that s 539(j) is drafted in a sufficiently broad way so as to encompass extending a prescribed or stated time in an order of the Commission.
  1. [68]
    In support of its position, the Respondent referred to the matters of FAI General Insurance Co Ltd v Southern Cross Exploration N2[14], McIntosh v Link Nominees Pty Ltd[15] and Chaves v Moreton Bay Regional Council[16] as being matters in which the Court determined that it had the power to extend time in an order including after the expiration of the time for compliance with the order.
  1. [69]
    The Respondent sought to rely on the following passage from FAI General Insurance:[17]

23. The plain meaning of these words is very wide. The Court may extend "any time" fixed by "any ... order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay L.J. said in Carter of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion" (at p 120). It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.

  1. [70]
    However, the above passage from FAI General Insurance must be considered in the context of the statutory provisions being construed by the Court. The relevant statutory provision was in the following terms:[18]

(1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.

(2) The Court may extend time under subrule

(1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

...

  1. [71]
    That provision clearly contemplates an extension of time with respect to “any judgment or order.” The reference to, inter alia, the words “judgment” or “order” in r 3 of the Supreme Court Rules 1970 (NSW) distinguishes that provision from s 539(j) of the IR Act.
  1. [72]
    In McIntosh v Link Nominees Pty Ltd.[19] and Chavez v Moreton Bay Regional Council[20] the relevant statutory provision being considered was r 7 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) which relevantly states:

7 Extending and shortening time

(1) The court may, at any time, extend a time set under these rules or by order.

(2) If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.

Note—

A time allowed or provided for under these rules is calculated according to the Acts Interpretation Act 1954 , section 38 (Reckoning of time).

  1. [73]
    Rule 7 of the UCPR again, by its express terms, provides that a court may extend a time set by order. Consequently, the relevant provisions in each of the decisions referred to above can be distinguished from s 539(j) as they each refer to an extension of time, inter alia, in a judgment or order.
  1. [74]
    The decision of Rintoul v State of Queensland[21] was also relied on by the Respondent in the matter. The relevant provision considered in Rintoul did not directly state that an order or judgment could be extended. It appears that this is the basis of the Respondent’s reliance on the decision.
  1. [75]
    In Rintoul, the Court of Appeal considered the appeal of a decision from the President of the Queensland Civil and Administrative Tribunal made on a question of law, relevantly being whether the Appellant’s proceeding was dismissed on 31 March 2014.
  1. [76]
    By way of background, the relevant Tribunal members’ orders were set out by the Court of Appeal as follows:
  1. “2.
    Jennette Rintoul will file one (1) copy in the Tribunal and serve one (1) copy on the State  of Queensland, Doug Quadrio and Peter Lemon further particulars of her claim by:

4:00pm on 31 March 2014

…

  1. Jennette Rintoul will file one (1) copy in the Tribunal and serve one (1) copy on the State of Queensland, Doug Quadrio and Peter Lemon any submissions in reply to the respondents’ submissions on costs by:

4:00pm on 28 April 2014

…

  1. If Jennette Rintoul does not comply with paragraphs 2 and 4 by the due dates, application ADL047-13 will be dismissed without further order.”
  1. [77]
    The Court of Appeal summarised the relevant background to the appeal as follows:

[3] The further particulars were not filed by 4.00 pm on 31 March 2014. On that day, the appellant’s solicitors wrote to the Tribunal saying that because their client had recently moved to South Australia there had been some difficulty and delay in obtaining her instructions, and they had not been able to obtain the detail required in the timeframe allowed for by the Tribunal. With some effrontery, they went on to say that they “required” an extension of time to 4 April 2014.

[4] On 1 April 2014, the Tribunal member who had made the original orders made further orders. Treating the appellant’s solicitors’ letter as an application for an extension of time, she purported to vacate her previous orders and made directions setting in place a new timeline, which required service of the further particulars of claim by 4 April 2014 and listed the substantive application for hearing on 17 and 18 July 2014.

  1. [78]
    The relevant provision under consideration in Rintoul was s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). Section 61 of the QCAT Act states as follows: 

61 Relief from procedural requirements

(1) The tribunal may, by order—

(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or

(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or

(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.

(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.

(3) The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.

(4) The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.

(5) The tribunal’s power to act under subsection (1) is exercisable only by—

(a) the tribunal as constituted for the proceeding; or

(b) a legally qualified member, an adjudicator or the principal registrar.

  1. [79]
    The Court of Appeal construed and applied s 61 of the QCAT Act as follows:

[13] Counsel for the respondents here argued that the only conceivably relevant subsection of s 61(1) was (c), but the requirement to file further and better particulars was not a procedural requirement under the Act or any associated legislation. It was, rather, a requirement under a decision of the Tribunal.

[14] However, the compass of the expression “procedural requirement under this Act” in s 61(1)(c) is extended considerably by the definition of the preposition “under, for an Act or a provision of an Act” in Sch 1 of the Acts Interpretation Act 1954 as:

“under, for an Act or a provision of an Act, includes—

(a) by; and

(b) for the purposes of; and

(c) in accordance with; and

(d) within the meaning of.”

The requirement to file particulars contained in Order 7 was, in my view, a procedural requirement imposed in accordance with the Queensland Civil and Administrative Tribunal Act.

[15] The respondents argued that interpreting s 61(1)(c) as permitting waiver of compliance with a procedural requirement arising through an order of the Tribunal was too broad an interpretation of the provision, and to give it that effect after dismissal of a proceeding would defeat the purpose of self-executing orders. As to the latter, it does not follow, of course, that every application for a waiver of compliance will be granted. More importantly, the provision is of a beneficial kind. It is not difficult to envisage situations where a want of any power in the Tribunal to revive proceedings after a self-executing order for dismissal had taken effect would produce injustice.

  1. [80]
    Accordingly, the Court found that the relevant order with respect to filing particulars was a procedural requirement imposed in accordance with the QCAT Act and consequently capable of being extended. Given that s 61 of the QCAT Act differs in its terms to s 539(j), the statutory construction of s 61 of the QCAT Act is of limited assistance in this matter.
  1. [81]
    Section 539(j) is given meaning by the context within which it appears. The other provisions within s 539(j) are each directed towards practice and the conduct of proceedings. For instance, s 539(e) empowers the Commission to correct, amend or waive an error, defect or irregularity whether substantive or formal. Section 539(k) empowers the Commission to waive compliance with the rules. It is within this context that s 539(j) appears. Accordingly, I consider that s 539(j) is limited to the power to make directions or orders incidental to the Commission’s jurisdiction as conferred in other sections of the Act.
  1. [82]
    In this regard, s 539(j) of the IR Act, when read as a whole and within the context of the provisions as a whole, empowers the Commission to extend a prescribed or stated time before or after expiry of the time in the conduct of the proceedings and as a matter incidental to the exercise of jurisdiction.
  1. [83]
    In the absence of the words “judgment or orders”, I do not consider s 539(j) to confer power on the Commission to extend time prescribed or stated in Order 2 after the expiration of the time. There are no other provisions within s 539 which attempt to deal with matters affecting the finality of an order issued by the Commission and there is no basis to construe s 539(j) as a provision that can be relied on to affect the finality of an order. This can be constructed with other provisions, such as s 484, within the IR Act which empowers the Commission to reopen proceedings.
  1. [84]
    The Respondent describes[22] legal professional privilege as a substantive and fundamental common law principle. The subject matter of the order, consequently, went to substantive common law rights of the parties and did not arise as a matter of practice or procedure and as a matter incidental to the exercise of the jurisdiction.  
  1. [85]
    For these reasons, s 539(j) does not empower the Commission to grant the relief sought with respect to a decision issued by the Commission. However, if my conclusion with respect to the operation of s 539(j) is incorrect, I will consider if the Commission did have such a power whether the discretion to issue the order sought would have been exercised in the circumstances of this matter.

Exercise of discretion

  1. [86]
    In summary, the Respondent contends that the following factors weigh in favour of the granting of the s 539(j) application as follows:
  1. the order was made following an application brought on at short notice the day before the trial;
  1. by the terms of the order, the Respondent was given less than two hours to comply;
  1. the decision is the subject of an appeal and an application for a stay;
  1. the right at stake, namely the entitlement to legal professional privilege, is an important one;
  1. the decision may have broader implications for the Respondent beyond the present litigation;
  1. if the Respondent is not granted the requested extension and is forced to comply with the order prior to the determination of its stay application, the prejudice will be significant; and
  1. no explanation has been provided as to why, after being provided the unredacted briefing note on 11 November 2024, the Applicant did not file the application until 15 November 2024.
  1. [87]
    The Respondent also makes submissions that if the orders were granted, it does not necessarily follow that the hearing of the substantive matter cannot commence in the remaining time presently allocated for the hearing.[23]
  1. [88]
    The Respondent argues that the Applicant would lose no forensic advantage if the trial were to commence before the resolution of the appeal of the decision.
  1. [89]
    The absence of evidence in support of the s 539(j) application leaves a number of submissions made by the Respondent as being made without a factual foundation. Relevantly, this includes the submissions summarised at paragraphs 86(e) and 86(f) above. Accordingly, little weight, if any, can be attributed to those matters in the consideration of whether the discretion is enlivened.
  1. [90]
    The Applicant objects to the application and submits that the Commission should not exercise its discretion to grant the relief sought by the Respondent.
  1. [91]
    The Applicant submits that she would suffer an injustice if the relief was granted. Currently, the Applicant has the benefit of Order 2 which requires the advice to be disclosed. The Applicant submits that it would be an abuse of process to grant the relief in circumstances where the Respondent has not complied with the order and has waited until after the expiration of the order to make this application.
  1. [92]
    In determining whether to exercise the direction, the Respondent’s conduct both before and after the orders were issued will be considered together with the effect of the relief sought in the appeal process.

Conduct of the Respondent with respect to Order 2

  1. [93]
    The Respondent was served with the 15 November 2024 application together with an affidavit and the Applicant’s written submissions on 15 November 2024. Accordingly, the Respondent had been on notice since that date as to the terms of the relief sought by the Applicant.
  1. [94]
    The Respondent did not seek to apply for an adjournment of the 15 November 2024 application on the basis that it had been brought on at short notice (or at all). Indeed, the Respondent acknowledged in its submissions[24] that it “diligently and responsively” responded to the 15 November 2024 application so as not to delay the commencement of the trial on 20 November 2024. It is apparent from the manner in which the 15 November 2024 application progressed, that the parties and the Commission were acting promptly to attempt to resolve the 15 November 2024 application prior to the commencement of the trial on 20 November 2024.
  1. [95]
    In this regard, the Commission issued directions for the Respondent to file written submissions on 18 November 2024 and to appear at the oral hearing on 19 November 2024. The Respondent, in neither its written or oral submissions, raised any concern with respect to the timing of the orders and whether it would be able to comply with those orders if the relief was to be granted. It appears that either at the time of the hearing the Respondent did not have any concern with respect to the timing of the orders sought, or alternatively, it had not turned its mind to it. 
  1. [96]
    At no time between the issuing of the order and the expiration of the time to comply with the order did the Respondent seek to stay the decision or in any other way seek to be heard by the Commission as to the date and time to comply with the order. No evidence has been provided to explain why the Respondent failed to take any step to be heard by the Commission on the terms of the orders between when the order was issued and when it was due to expire.
  1. [97]
    The Respondent filed an application on 20 November 2024 pursuant to, alternatively, ss 451, 536 and 539(f) of the IR Act for a stay and then subsequently, during the hearing of that application, abandoned the application for a stay pursuant to those provisions.
  1. [98]
    At the time of seeking the stay, the Respondent had not filed a Notice of Appeal of the decision. The Respondent’s representatives did not attend the Commission armed with instructions as to whether the Respondent intended to file a Notice of Appeal but indicated that the Respondent wanted to consider its position on the basis that it was entitled to the benefit of the 21-day appeal period to consider whether to file the appeal or not.
  1. [99]
    Further, during the course of submissions, the Respondent’s representatives indicated that it did intend to appeal the decision and sought a stay of the decision pursuant to s 566 of the IR Act.
  1. [100]
    The s 566 stay application was then subsequently withdrawn during the course of the hearing and then again during the hearing, subsequently reinstated.
  1. [101]
    The manner in which the Respondent made several differing applications during the course of the hearing was discordant, confusing and placed the Applicant at a disadvantage.
  1. [102]
    Given the uncertainty as to the status and nature of the application and the relief being sought by the Respondent, the Commission consequently requested that the Respondent take instructions to confirm what relief it was seeking and directed it to serve an application by 5.00pm on 20 November 2024. This necessitated that the application be adjourned to be heard at 10.00am on 21 November 2024.
  1. [103]
    The Respondent served a copy of the s 539(j) application at 4.53pm on 20 November 2024.
  1. [104]
    As noted above, there is no evidence as to the timing of the steps taken, if any, by the Respondent in this matter relevant to the s 539(j) application.
  1. [105]
    However, submissions were made from the bar table (and not objected to), that an application for a stay and a Notice of Appeal was filed in the Industrial Court on 21 November 2024. It follows that the terms of the application for a stay and the Notice of Appeal are not in evidence before me.
  1. [106]
    Further, there is no evidence before me as to whether the Respondent requested that the application for a stay be listed urgently before the Industrial Court nor any other relevant information with respect to when it is expected to be listed. These are matters which are relevant to the exercise of discretion.
  1. [107]
    It is apparent from the above outline of conduct that the Respondent:
  1. made a forensic decision not to apply for an adjournment of the 15 November application and consequently submitted to a shortened time period to hear and determine the 15 November application prior to the commencement of the hearing for the substantive proceedings;
  1. was given an opportunity, both in writing and orally, to be heard with respect to the 15 November application but made no submission with respect to the timing of compliance with the orders sought;
  1. the Respondent did not take any steps, nor did it adduce any evidence to explain why, between when the order was issued and when it expired, to seek an extension of time;
  1. the Respondent filed an application for a stay relying on general provisions of the IR Act, being s 451, or s 536, or s 539(f), after the expiration of the time to comply with Order 2 and prior to filing a Notice of Appeal, in order for the Respondent to have the benefit of 21 days to consider whether it would exercise its appeal rights; and
  1. the Respondent acted in a manner that caused delay and confusion during the course of the hearing of the stay application, by withdrawing that application, commencing a fresh application pursuant to s 566 of the IR Act to stay the order, then withdrawing that application and seeking for the s 566 application to be reinstated and necessitating the application be adjourned in order to obtain instructions so that an application could be made with clarity and certainty by the Respondent.
  1. [108]
    Further, there is no evidence before me as to what steps the Respondent has taken to have the hearing of the stay application and/or the appeal expedited.
  1. [109]
    The conduct of the Respondent, including that it did not take steps to protect its interests until after the time to comply with Order 2 had expired, are matters relevant to the exercise of my discretion.
  1. [110]
    Consequently, I consider that the matters referred to above, when viewed collectively, do not weigh in favour of the grant of the relief sought by the Respondent.

The nature and effect of the relief sought

  1. [111]
    A further matter to be considered in the exercise of my discretion is whether the decision which is now the subject of a stay application and a Notice of Appeal to the Industrial Court should be interfered with by the Commission by varying it to amend its terms to extend the time for compliance with the order.
  1. [112]
    As noted above, I requested that the parties address this further in written submissions to the Commission.
  1. [113]
    The Respondent contended that the appeal does not challenge the validity of the timeframe for compliance but rather challenges the waiver of legal professional privilege.
  1. [114]
    In support of its position, the Respondent argued that there is no provision which inhibits the power of the Commission under s 539(j) to extend time where that decision is the subject of a pending appeal. Further, the Respondent contends that it would not be subversive to do so in circumstances where the purpose of the exercise of the power is to prevent a party being exposed to non-compliance in the interim period prior to it being able to challenge the decision on appeal.
  1. [115]
    As noted above, the Commission does not have the benefit of having the Notice of Appeal before it. However, it is accepted that as a matter of logic that the appeal does not challenge the validity of the time for compliance as the time to comply with the order has expired.
  1. [116]
    The Respondent relied on the authority of ASIC v Adler[25] to contend that an application to vary the terms of an order which was the subject of an application for leave to appeal was contemplated by the Court. The Respondent submitted that even though the application to vary the orders was dismissed the reason for the dismissal “was not on the basis that the substantive judgment which were the basis of the orders were the subject of a pending appeal.”[26]
  1. [117]
    In Adler, the application to vary the order was dismissed on the basis of insufficient evidence and a failure to apply for a stay.
  1. [118]
    There was no consideration or statement by the Court in Adler in support of the proposition relied on by the Respondent. I do not consider that Adler assists the Respondent, in circumstances where the application to vary the order in that matter was dismissed in any event.
  1. [119]
    The Respondent contends that the exercise of the power to extend does no more than relieve compliance pending the outcome of that appeal. For reasons explored further below, I do not accept that as being an accurate characterisation of the effect of the exercise of the power.
  1. [120]
    The Applicant contends that the application is an abuse of process. The Applicant’s submission included the following:

In circumstances where a party, by way of interlocutory application, seeks to vary an order in respect of an issue that has already been decided and is pending appeal, the application is “plainly an abuse of process”. [FN: See McEwan v Cloudsdale [2022] QSC 284 at [13], [16] Burns J (‘McEwan’), affirmed in McEwan v Cloudsdale [2023] QCA 122 at [64] to [69] Flanagan JA, Boddice JA and Ryan J. See also Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 70 at [4] to [7] Burns J (‘Lewis’).] The abuse is exacerbated by the fact that the party (as is the case here with the Respondent) is seeking to vary the orders for the express purpose of aiding its prosecution of the appeal, here, in an attempt to impermissibly purge its contempt.

In Lewis at paragraph [7], Burns J having referred to the High Court decisions on an abuse of process stated:2

“Once those statements of general principle are appreciated, it should come as no surprise to record that the commencement of a second or subsequent proceeding in a court if a proceeding is already pending with respect to the matter or matters in issue in the same court will be “prima facie vexatious and oppressive” and liable to be stayed or set aside as an abuse of process of that court.3 Indeed, unless proper justification for the maintenance of multiple proceedings can be discerned, such an outcome would have to be regarded as inevitable.”

  1. [121]
    Essentially, the Applicant argues that the current application is related to an issue raised in the stay application and the appeal filed in the Industrial Court and as such, it is an abuse of process for the Respondent to pursue this application in the Commission.
  1. [122]
    The relief sought by the Respondent in this application may directly impact upon the stay application and potentially the appeal. Relevantly, a stay application may be made wholly or partly on the decision being appealed.[27] A relevant component of the decision for the purpose of the stay application will, presumably be, the time in which it was ordered that the Respondent comply with the decision.
  1. [123]
    The relief sought by the Respondent in this application seeks to alter the time to comply with the decision in circumstances where the time period ordered for the Respondent to comply has already expired. In this regard, the Respondent is currently non-compliant with the order. If the relief sought by the Respondent was granted this would have the effect of potentially altering the rights and position of the parties on the stay application, and potentially on the appeal, and alter the characterisation of the order from one in which the time for compliance had expired to one which the time to comply was pending the appeal. This alteration in the characterisation of the order has the potential to effect the stay application and the appeal, and potentially whether the order is one which can be subject of a stay application.
  1. [124]
    Consequently, I consider that because the Respondent has filed a stay application and an appeal of the decision in the Industrial Court that the s 539(j) application before me has the potential to interfere with and/or effect the outcome of each of those matters.
  1. [125]
    It follows that I consider that the nature and potential effect on the relief sought in the stay application and appeal are matters which weigh against the exercise of the discretion to grant the relief sought by the Respondent in the s 539(j) application.
  1. [126]
    In this regard, and for the foregoing reasons, even if it had been determined that the Commission had the power to grant the relief sought pursuant to the s 539(j) application, I would have declined to exercise my discretion to grant the relief sought by the Respondent.

The further amended non-publication order application

  1. [127]
    The terms of the further amended non-publication order application are referred to in paragraph 39 above. In summary, the Respondent seeks an order for the prohibition of the following documents from being released, searched or published:
  1. the unredacted version of the briefing notes comprising PM-06 and PM-07 in the affidavit of Mr Peter McKay, and also those documents as they appear as an attachment in the affidavit of Ms Elizabeth Hitchcock filed on 14 November 2024 and the affidavit of Mr Thomas Allan filed on 15 November 2024; and
  1. the reasons for the decision on the 15 November application.

together with other incidental orders.

  1. [128]
    As with the s 539(j) application, no affidavit was filed in support of the application.
  1. [129]
    The Respondent contends that the relief should be granted to protect the confidentiality attached to the documents pending the outcome of the appeal.
  1. [130]
    The Applicant objected to the application on the basis that there was an absence of evidence before me to grant the relief sought and further that the terms of s 580(5) do not apply in the current circumstances where non-publication is sought in relation to documents that do not reveal trade secrets or the financial position of a party or witness.
  1. [131]
    The respondent bears the onus of demonstrating that circumstances exist which would justify the making of the proposed suppression order.

Relevant legislation and authorities

  1. [132]
    The application is made in reliance of s 580(5) of the IR Act or, in the alternative, r 97 of the IR Rules.
  1. [133]
    Section 580 of the IR Act provides for the directions the Commission may give in respect of confidential material and is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

  1. The court, commission or registrar may direct—
  1. a report, or part of a report, of proceedings in an industrial cause not be published; or
  2. evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

  1. The direction may be given if the court, commission or registrar considers —
  1. disclosure of the matter would not be in the public interest; or
  2. persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

…

  1. [134]
    Although it was not specifically stated by the Respondent, given the terms of s 580(5) of the IR Act, that provision must be relied on with respect to the unredacted briefing notes rather than the Commission’s decision.
  1. [135]
    Rule 97 of the IR Rules provides the Commission with a power to, inter alia, withhold publication of decisions if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

  1. The registrar may publish on the QIRC website –
  1. a decision of the court, commission, or registrar; and
  2. the notice of the making or the amended of a bargaining instrument
  1. The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

  1. The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. withhold publication of a document; or
  2. modify a document, before publication, in a way that does not affect the essence of the document.

…

  1. [136]
    The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[28] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  1. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  1. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
  1. A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…

Consideration

  1. [137]
    The Respondent submits that the purpose of the order is aimed at protecting the confidential subject matter of the appeal.  As it has been put to me (again, in the absence of the notice of appeal) the Respondent seeks to protect the subject matter of the appeal namely, the content of the Crown Law advice.
  1. [138]
    Briefing Note PM-06 is not referred to in Order 2. Relevantly, Order 2 of the decision which is being appealed, refers to the advice referred to in Briefing Note PM-07 only.
  1. [139]
    Briefing Note PM-06 and Briefing Note PM-07 were required to be provided in an unredacted form pursuant to orders issued on 7 November 2025. On the submissions made to the Commission, there is no appeal with respect to that decision. Accordingly, the status of orders with respect to the unredacted Briefing Note PM-06 and PM-07 issued on 7 November 2024 will be unaffected by the appeal.
  1. [140]
    Further, references to the information contained in the unredacted Briefing Note PM-06 and PM-07 are not limited to the documents identified in the application.  Relevantly, other documents filed by the parties in support of the 15 November application contained extracts from the unredacted briefing note.  Consequently, there is limited utility in the orders sought by the Respondent as the orders with respect to the unredacted briefing notes do not have the effect sought by the Respondent.
  1. [141]
    When balancing whether to exercise the discretion to supress the unredacted Briefing Note PM-06 and PM-07 I have formed the view that the orders sought have limited utility and do not provide a basis to disturb the fundamental principle of open justice.
  1. [142]
    On this basis, the Respondent’s application made in reliance of s 580(5) of the IR Act is dismissed.
  1. [143]
    With respect to the reasons for the decision in relation to the 15 November application, they were released to the parties on 21 November 2024.  They have not been released or published to any other person pending the determination of this application.
  1. [144]
    It is accepted that the reasons for the decision canvas the subject matter of the Crown Law advice which is the subject of the appeal to the Industrial Court.
  1. [145]
    Commencing with the overarching principle guiding judicial decision making with respect to ensuring open and transparent justice, it is noted that the publication of reasons of a decision is a fundamental component of the principle. 
  1. [146]
    However, it is noted that r 97 empowers the Commission to withhold publication of a document if it is in the public interest or for another reason.
  1. [147]
    I consider that it is in the public interest that the reasons for decision of the 15 November application be withheld from publication to preserve the Respondent’s position pending the appeal. A factor that further weighs in the exercise of this discretion is that the order is issued on an interim basis only until the resolution of the appeal before the Industrial Court.
  1. [148]
    For these reasons, I will order that the reasons for decision including the transcript and written version of those reasons, of the 15 November application be withheld from publication pending the resolution of the appeal of the decision before the Industrial Court of Queensland.

Order

  1. [149]
    For the reasons above, I make the following orders:
  1. The order sought by the Respondent pursuant to s 539(j) of the IR Act is dismissed.
  1. The order sought by the Respondent pursuant to s 580(5) of the IR Act is dismissed.
  1. Pursuant to r 97(3) of the IR Rules, the transcript of the decision and written reasons as to the Applicant’s application on 15 November 2024 be withheld from publication until the appeal with respect of that decision to the Industrial Court of Queensland has been determined or otherwise resolved.
  1. Costs in relation to each of the applications are reserved.

Footnotes

[1] Affidavit of Peter McKay filed on 25 June 2024.

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

[3] Affidavit of Samantha Robinson filed on 21 November 2024, 16.

[4] The Applicant had foreshadowed that she would seek to adjourn the hearing of the substantive proceeding if the stay application was granted.

[5] 21 November 2024.

[6] Submissions filed by the Applicant on 22 November 2024.  

[7] Gilbert v Metro North (no 2) [2023] ICQ 20.

[8] (2019) 269 CLR 507.

[9] [2017] HCA 34; (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordan JJ. 

[10] Ibid [14]. 

[11] Morgan v State of Queensland (Queensland Health) [2020] QIRC 184, 27.

[12] [2021] QIRC 292.

[13] As presently constituted.

[14] (1988) 165 CLR 268, Wilson J, Brennan Dean and Dawson JJ agreeing (‘FAI General Insurance’). 

[15] [2010] Qd R 152.

[16] [2009] QSC 179.

[17] FAI General Insurance (n 10) 23.

[18] Supreme Court Rules 1970 (NSW) r 3 (repealed).

[19] [2010] Qd R 152.

[20] [2009] QSC 179.

[21] [2015] QCA 79.

[22] Submissions filed by the Respondent on 21 November 2024, 33.

[23] Respondent’s submissions filed on 21 November 2024, 40.

[24] at 38.

[25] [2002] NSWSC 510.

[26] Submissions filed by the Respondent on 22 November 2024, 25.

[27] Industrial Relations Act 2016 (Qld) s 566.

[28] [1993] QCA 012; [1995] 2 Qd R 10.

Close

Editorial Notes

  • Published Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5)

  • Shortened Case Name:

    Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5)

  • MNC:

    [2024] QIRC 276

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    21 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
ASIC v Adler [2002] NSWSC 510
2 citations
Jump To
Cite 1 - [2002] NSWSC 510
Cite 2 - [2002] NSWSC 510
Chavez v Moreton Bay Regional Council [2009] QSC 179
3 citations
Jump To
Cite 1 - [2009] QSC 179
Cite 2 - [2009] QSC 179
Cite 3 - [2009] QSC 179
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
2 citations
Jump To
Cite 1 - (1988) 165 CLR 268
Cite 2 - (1988) 165 CLR 268
Gilbert v Metro North Health and Hospital Service (No. 2) [2023] ICQ 20
2 citations
Jump To
Cite 1 - [2023] ICQ 20
Cite 2 - [2023] ICQ 20
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
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 259
1 citation
Jump To
Cite 1 - [2024] QIRC 259
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 3) [2024] QIRC 260
1 citation
Jump To
Cite 1 - [2024] QIRC 260
In the making of the Western Downs Regional Council Personal Carers and Support Workers Certified Agreement 2021 [2021] QIRC 292
2 citations
Jump To
Cite 1 - [2021] QIRC 292
Cite 2 - [2021] QIRC 292
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
4 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1993] QCA 12
Cite 3 - [1995] 2 Qd R 10
Cite 4 - [1995] 2 Qd R 10
Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 70
1 citation
Jump To
Cite 1 - [2022] QSC 70
McEwan v Cloudsdale [2022] QSC 284
1 citation
Jump To
Cite 1 - [2022] QSC 284
McEwan v Cloudsdale [2023] QCA 122
1 citation
Jump To
Cite 1 - [2023] QCA 122
McIntosh v Link Nominees Pty Ltd [2010] Qd R 152
3 citations
Jump To
Cite 1 - [2010] Qd R 152
Cite 2 - [2010] Qd R 152
Cite 3 - [2010] Qd R 152
Morgan v State of Queensland (Queensland Health) [2020] QIRC 184
2 citations
Jump To
Cite 1 - [2020] QIRC 184
Cite 2 - [2020] QIRC 184
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Rintoul v State of Queensland [2015] QCA 79
2 citations
Jump To
Cite 1 - [2015] QCA 79
Cite 2 - [2015] QCA 79
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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