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Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor)[2025] QIRC 107

Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor)[2025] QIRC 107

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2025] QIRC 107

PARTIES:

Fellows, Kylee-Rachel

(Complainant)

v

State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor)

(Respondent)

CASE NO.:

AD/2023/25

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

29 April 2025

DATES OF WRITTEN SUBMISSIONS:

The Complainant’s submissions filed on 26 February 2025

The Respondent’s submissions filed on 26 March 2025

The Complainant’s submissions in reply filed on 2 April 2025

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDERS:

The Orders contained in paragraph [162] of these reasons for decision.

CATCHWORDS:

HUMAN RIGHTS – JURISDICTION AND PROCEDURE –  QUEENSLAND – APPLICATION TO AMEND COMPLAINT  – Complainant employed by the Respondent as a Senior Prosecutor – Complainant made complaint to the Queensland Human Rights Commission alleging, amongst other allegations, that she had been the subject of unlawful discrimination on the basis of impairments in contravention of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission –  decision by the Queensland Industrial Relations Commission not to deal with certain complaints made out of time as contained in the Complainant's statement of facts and contentions – Complainant subsequently filed an outline of argument in support of her case which advanced six new claims not contained in her statement of facts and contentions – Complainant then directed to make an application in existing proceedings, pursuant to s 178 of the Anti-Discrimination Act 1991, to amend her complaint –  application  opposed by the Respondent – whether the Commission should allow the Complainant to amend her complaint – consideration of the relevant principles as to whether the Complainant should be allowed to amend her complaint – application dismissed

LEGISLATION:

Anti-Discrimination Act 1991, s 8, s 10, s 11, s 15, s 101, s 124, s 174B, s 174C, s 175 and s 178

Human Rights Act 2019, s 24, s 25, s 37 and s 58

Industrial Relations Act 2016, s 429, s 447 and s 539

Industrial Relations (Tribunals) Rules 2011, r 6, r 41 and r 46

Public Service Act 2008, s 175

Workers' Compensation and Rehabilitation Act 2003, s 5, s 131 and s 545

CASES:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2) [2011] QSC 42

Bond v State of Queensland & Anor [2019] QCATA 60

Bond v State of Queensland & Ors (No. 2) [2020] QIRC 078

Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141

Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120

Goadsby v Harness Racing New South Wales [2025] NSWSC 355

Holton v Coulton (1988) 17 NSWLR 71

Kelsey v Logan City Council and Ors (No 2) [2022] ICQ 013

Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

Murrays Australia Limited v Training Recognition Council and Ors [2002] ICQ 44; (2002) 171 QGIG 93

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33

Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273; (2021) 9 QR 250

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339

ST v Metro South Hospital and Health Service & Ors [2022] QCAT 272

UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

Yousif v Workers’ Compensation Regulator [2017] ICQ 004

Reasons for Decision

  1. [1]
    Some of the background to this matter is set out in the related decision I made last year in Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) ('Fellows No. 1').[1] These reasons assume familiarity with the reasons for decision in Fellows No. 1. Unless stated in these reasons, the definitions and abbreviations I used in Fellows No. 1 are used in these reasons.
  1. [2]
    By the decision in Fellows No.1, I decided that, pursuant to s 175(2) of the AD Act, I would not deal with certain complaints contained in the Complainant's contentions. The consequence was that, what I defined as 'the Regulator allegations' and as 'the return to work allegations' as contained in the Complainant's contentions, would only be dealt with by the Commission.
  1. [3]
    On 20 January 2025, in observation of subsequent orders made by the Commission for the hearing and determination of the above allegations,  the Complainant filed her outline of argument ('the Complainant's outline').
  1. [4]
    In her outline, the Complainant made six claims which went beyond those contained in the Regulator allegations and the return to work allegations.
  1. [5]
    Following the Respondent taking issue with the Complainant's outline and following a mention of the matter on 28 January 2025, by application in existing proceedings filed on 26 February 2025, the Complainant, as I directed, applied to amend her complaint ('the amendment application').
  1. [6]
    Pursuant to s 178 of the AD Act, the Commission has discretion to allow the Complainant to amend her complaint as sought.
  1. [7]
    The question for my determination is whether I should exercise my discretion and allow the Complainant to amend her complaint to include the six new claims she now seeks the Commission to hear and determine.
  1. [8]
    For the reasons that follow, I decline to exercise my discretion, pursuant to s 178 of the AD Act, to allow the Complainant to amend her complaint to include the six new claims.

Relevant background

The lead up to the decision in Fellows No. 1

  1. [9]
    After the Complainant's complaint was referred from the QHRC to this Commission on 27 March 2023, by Directions Orders dated 29 August 2023, 4 October 2023, 16 October 2023 and 24 October 2023, Industrial Commissioner McLennan directed the parties:
  • to file and serve their statements of facts and contentions; and
  • to complete disclosure.  
  1. [10]
    The Complainant filed and served her statement of facts and contentions on 22  September  2023. The Respondent filed its statement of facts and contentions on 27 October 2023. Conciliation conferences took place before Industrial Commissioner McLennan on 24 November  2023 and 21 December 2023. Conciliation was unsuccessful and the matter was allocated to me for hearing.
  1. [11]
    On 8 March 2024, I made a Directions Order for the parties to file and serve submissions about the complaints made by the Complainant, contained in her contentions and which were made outside the time limit, for the purposes of determining whether the Commission's discretion under s 175(2) of the AD Act would be exercised in her favour.
  1. [12]
    On 17 May 2024, I made my decision in Fellows No. 1 about the Complainant's out of time complaints contained in her contentions.

The decision in Fellows No. 1

  1. [13]
    In Fellows No. 1, I determined that the allegations contained in paragraphs 8 to 53 of the Complainant's contentions, (which I referred to as ‘the Guilfoyle allegations’) and in paragraphs 54 to 64 of the Complainant's contentions (which I referred to as ‘the Host Placement allegations’) would not be dealt with by the Commission.[2] No appeal was made by the Complainant against that decision.
  1. [14]
    The allegations contained in paragraphs 65 to 95 of the Complainant's contentions were made within the relevant limitation period and, as stated, I referred to those complaints as 'the Regulator allegations' and as 'the return to work allegations'. I summarised those paragraphs as follows:

Paragraphs 65 to 71 of the Complainant's contentions

  1. [20]
    The Complainant alleges that:
  • on 13 July 2020 she filed an application for workers' compensation with WorkCover Queensland in respect of her sustaining an adjustment disorder/reactive anxiety disorder;
  • on 13 October 2020, WorkCover Queensland rejected that application on the basis that it was made out of time;
  • on 14 January 2021, the Complainant made an application for review of the WorkCover Queensland decision with the Workers' Compensation Regulator;
  • the review of the WorkCover Queensland decision was undertaken 'in-house', namely, by officers within the Workers' Compensation Regulator;
  • the decision by the Workers' Compensation Regulator, not to arrange for independent legal advice, in respect of the Complainant's application to review the WorkCover Queensland decision, was unfavourable treatment of the Complainant; and
  • the unfavourable treatment was on the basis of the Complainant's bipolar affective disorder and her adjustment disorder/reactive anxiety disorder, such that she was the subject of unlawful direct discrimination in the area of the administration of State laws and programs, and which also was a contravention of s 25 of the Human Rights Act 2019 ('the Regulator allegations').

Paragraphs 72 to 95 of the Complainant's contentions

  1. [21]
    The Complainant alleges that:
  • after the cessation of her host placement within the Workers' Compensation Fraud Prosecutions Unit as from 12 July 2020, she did not return to work in OWHSP;
  • following the Complainant forwarding to OIR a report from her psychiatrist dated 29 November 2021, an officer of OIR requested that the Complainant advise of her intentions about returning to work by 4 March 2022;
  • on 4 March 2022, the Complainant forwarded a proposal for her return to work in OIR in response to which, on 28 March 2022, an officer of OIR advised the Complainant that there was insufficient medical evidence available to be satisfied of her safe return to work in any role;
  • on 6 May 2022, an officer of OIR directed the Complainant to be examined, on 19  July 2022, by a medical practitioner for the purposes of an independent medical examination in respect of which, the questions posed for the medical practitioner, were framed by the knowledge of the Complainant's bipolar affective disorder which was unfavourable treatment, such that she was the subject of unlawful direct discrimination in the work area;
  • on 8 August 2022, the report of the independent medical examination was forwarded to the Complainant's psychiatrist which contained inaccurate and irrelevant considerations, and offensive statements, such that the forwarding of that report was a breach of s 25 of the Human Rights Act 2019;
  • on 4 April 2023, the Complainant was requested by an officer of OIR to respond to the report of the independent medical examination which concluded that her absence from work was caused by mental illness or disability, namely, '… severe, treatment resistant Bipolar Affective Disorder';
  • on 25 April 2023, the Complainant responded to the report of the independent medical examination;
  • the Respondent has not been in contact with the Complainant since that time; and
  • on 2 and 3 December 2023, an officer of OIR contacted the Complainant's psychiatrist to clarify and amend an error in his report which was in breach of s 25 of the Human Rights Act 2019 due to the Complainant's earlier refusal, on 20 September 2021, to authorise OIR to liaise directly with her medical advisors ('the return to work allegations').
  1. [15]
    As I understand them, the Complainant's existing claims are:
  • that the Respondent allegedly directly discriminated against her[3] on the basis of her impairments,[4] in contravention of s 101 of the AD Act,[5] by the decision of Ms Joanne Edwards of the Workers' Compensation Regulator ('Ms Edwards' decision') not to '…brief out' the Complainant's application for the Regulator to review WorkCover's decision not to waive the time limit for her to apply for workers' compensation ('the first existing claim');[6]
  • that the Respondent allegedly directly discriminated against her in that a letter from Mr David Gore, A/Assistant Work Health Safety Prosecutor, dated 6 May 2022, directing the Complainant to submit to an independent medical examination pursuant to ch 5, pt 7 of the Public Service Act 2008 ('Mr Gore's direction') contravened s 15(l)(f) of the AD Act[7] because Mr Gore's questions to the doctor were framed with his knowledge of one of her impairments  ('the second existing claim');[8] and
  • that the Respondent allegedly breached s 25 of the HR Act:
  1. –by Ms Kelsey Graham, Principal Consultant, Health and Wellbeing, on 8 August 2022, forwarding to the Complainant's doctor a copy of the report of the independent medical examination;[9] and
  1. –by Ms Graham contacting the office of her doctor  on 2 and 3 December 2022, to clarify and amend an error in the report of the independent medical examination ('the third and fourth existing claims').[10]

The directions made after Fellows No. 1

  1. [16]
    On 5 July 2024, I made a Directions Order for the parties to file and serve their affidavit material for the complaints in the Complainant's contentions that remained on foot after the decision in Fellows No. 1. On 4 September 2024, the Complainant filed her affidavit. On 11 October 2024, the Respondent filed its affidavits.
  1. [17]
    On 22 November 2024, I made a Directions Order for the parties to file and serve their outlines of argument and I set the trial dates for 24, 25 and 26 March 2025. The Complainant filed her outline of argument on 20 January 2025. 

The Complainant's outline of argument and the amendment application

  1. [18]
    It was in her outline of argument that the Complainant made the six new claims in respect of which issue was taken by the Respondent. Ultimately, that resulted in the Complainant filing her amendment application to include the six new claims in her complaint. 
  1. [19]
    By Directions Order dated 29 January 2025, I directed that:
  • the Complainant file and serve her amendment application and supporting submissions;
  • the Respondent file and serve submissions in response; and
  • the Complainant file and serve submissions in reply.

The six new claims

  1. [20]
    The six new claims are contained in the Complainant's outline.

The first new claim

  1. [21]
    In her outline, the Complainant submitted (footnotes omitted):
  1. [21]
    By not accepting the Complainant's participation in the medically supervised return to work and rehabilitation plan with the Respondents as evidence of a 'reasonable cause' for not lodging her application for workers compensation by the prescribed time, the Respondents have indirectly discriminated against the Complainant on the basis of her impairment.

The second new claim

  1. [22]
    In her outline, the Complainant submitted (footnotes omitted):
  1. [30]
    The complainants [sic] return to work proposalwas rejected by Ms Graham on the basis that there was insufficient medical evidence available to the Department to be satisfied that it was safe for the Complainant to return to her substantive role or any other role. This decision was based upon a medical report which was obtained 5 months prior.
  1. [31]
    The Complainant offered to take any counter proposal to Dr Larder to obtain clearance to enter into some form of return-to-work arrangement, yet this was not considered by the Respondents.
  1. [32]
    Pursuant to section 8 of the AD Act, this direct discrimination was on the basis of a characteristic that the Complainant was presumed to have, or to have had at any time, by the person discriminating, or an attribute that the Complainant had, even if though she did not have it at the time of the discrimination.
  1. [33]
    It is submitted that Ms Graham's decision not to consider the return-to-work the Complainants [sic] return to work proposal or enter into a discussion with the Complainant regarding what the department would accept, constitutes direct discrimination under s 15 of the AD Act on the basis of the Complainants [sic] 1st and 2nd Impairments at [8] above.

The third new claim

  1. [23]
    This new claim is covered in paragraphs 34 to 43 of the Complainant's outline. The  material paragraphs are (footnotes omitted):
  1. Did the 2nd and 3rd Respondents make a request for unnecessary information on which unlawful discrimination may occur pursuant to section 124 of the AD Act.
  1. [34]
    In correspondence dated 9 May 2022 sent to the Complainant on 20 May 2022, Mr David Gore (A/assistant WHSP, OWHSP) included an IME request letter that had been sent to Dr Murphy.
  1. [35]
    On 19 July 2022, the Complainant attended the IME with Dr. Murphy at the MLCOA offices. She was told that a previous IME by Dr DeLeacy on 10 June 2021 was on the file. The doctor focussed on the Complainants [sic] past, family history and existing mental health condition, rather than her ability to return to work.
  1. [36]
    The Complainant contends that the 3rd Respondents [sic] questions at [41] above were framed in a way that alluded to the pre-existence of Impairment 1, the medical information considered by the 3rd Respondent was insufficient to determine the existence of a mental illness or disability. Impairment 2 was caused from a workplace injury and had not been purely diagnosed a psychiatric.
  1. …
  1. [43]
    The Complainant asserts that it was the original request from the 3rd Respondent that resulted in the preparation of Dr Murphy's IME, constituting a request for unnecessary information on which unlawful discrimination may occur.

The fourth new claim

  1. [24]
    In her outline, after setting out certain provisions of the HR Act and making reference to authorities that deal with a public entity's obligations under the HR Act in making a decision,[11] the Complainant submitted (footnotes omitted):
  1. [50]
    The human rights that ought to have been identified in the Respondent's decision on whether to allow the Complainants [sic] application under section the WCR Act being ss 24, 25, and 37 of the HR Act, the right to property, privacy and reputation and health services.
  1. [51]
    As Ms Edwards holds the delegation of decision maker the exercise in identifying the human rights that may be limited by a decision under 58(1)(a) of the Human Rights Act lies with her.
  1. [52]
    Referring to Ms. Edwards [sic] written reasons for her decision dated 19 March 2021, confirming the decision of WorkCover not to waive the time for applying for compensation. There is no evidence that Ms Edwards seriously turned her mind to the possible impact of the decision on the Complainant's human rights and the implications thereof for the Complainant, and any countervailing interests or obligations identified. Nor is any reference made by Ms Edwards to proper human rights considerations made in her affidavit dated 11 October 2024.
  1. [53]
    There were a number of indications that there was a potential for conflicts of interests, denial of natural justice, contraventions of the AD Act and limitations on the human rights of the Complainant, the Respondents ought to have at least identified these issues prior to proceeding to make their decision.
  1. 3rd Respondent - Requirement to submit to an independent medical examination.
  1. [54]
    The human rights that ought to have been identified in the 3rd Respondent's decision to require the complainant to submit to a medical examination, being s 25 of the HR Act, the right to privacy and reputation.
  1. [55]
    Referring to Mr Gore's correspondence of 6 May 2022 and his affidavit of 11 October 2024.There is no evidence that Mr Gore seriously turned his mind to the possible impact of the decision on the Complainant's human rights and the implications thereof for the Complainant, and any countervailing interests or obligations identified.
  1. [56]
    Neither the 1st or 2nd respondent turned their minds to how their decisions may impact on the Complainants [sic] human rights in their decision, there is no evidence that any consideration was made. While there is authority to support that the rights do not have to specifically stated [sic], there has to be at least some indication that the decision maker has considered the possible impact of the decision on the Complainant's human rights and the implications thereof for the Complainant, and any countervailing interests or obligations identified, before an assessment can be made that a limitation is justifiable.

The fifth new claim

  1. [25]
    In her outline, the Complainant submitted (footnotes omitted):
  1. Section 24 HR Act- Right to property & s. 37 HR Act- Right to Health Services
  1. [57]
    In Austin BMI Pty Ltd v Deputy Premier Freeburn J considered the term 'property' as 'a strategic right to protect other rights but also valuable in itself as a component of human dignity.' His Honor [sic] found that in that case a statutory right under the Planning Act could not be considered a property right for the purposes of s. 24 of the HR Act. However, in applying his Honours [sic] reasoning to this matter the Complainants [sic] need to access workers [sic] compensation/assistance with medical expenses and rehabilitation support is essentially a 'strategic human right' that lies closure [sic] to the core of human dignity' and as such a property right pursuant to s. 24 of the Act.
  1. [58]
    By confirming the decision of WorkCover the 2nd Respondent has prevented the Complainant from accessing the assistance she required to recover from her injury. Relevantly, as provided by section 5(2) of the WCR Act compensation, access to damages and injury management, rehabilitation of workers particularly for return to work and medical expenses. This also falls within the definition of s. 37 as the Complainant has been denied the right to access health services.

The sixth new claim

  1. [26]
    In her outline, the Complainant submitted (footnotes omitted):
  1. [63]
    While the complainants [sic] file was eventually 'locked down' as per the Respondents unwritten procedure, it first went through an assessment by staff members of the WCRS business unit before being allocated to a review officer. The file was then forwarded to an external panel legal provider for 'advice', before the decision was made to confirm the decision of WorkCover. This decision was forwarded by Ms Edwards to Johnathon Shields, Director of Review and Appeals. The Respondents do not indicate whether this was sent through to Mr Shields directly or through his administrative staff. Mr. Shields emailed Ms.  Hillhouse on 18 March 2021 disclosing the outcome of the review (prior this [sic] being conveyed to the Complainant), also disclosing details of the contents of the review application. The complainant is not confident that this informal procedure adequately protected her right to privacy and reputation.

The amendment application

  1. [27]
    On 26 February 2025, the Complainant filed her amendment application and it provided:
  1. Based on the Queensland Human Rights Commission characterisation of complaint filed 27 March 2023 as set out in the Form 85- Referral of Complaint filed 27 March 2023.
  1. Proposed amendments indicated in RED.
  1. 1.
    Alleged impairment discrimination in the area of work under sections 7(h), 10, 11, 15 of the Anti-Discrimination Act 1991.
  1. 2.
    Alleged discrimination in the administration of State Laws and Program area section 101 of the Anti-discrimination Act 1991.
  1. 3.
    Allegation of making unlawful requests for information in contravention of section 124 of the Anti-Discrimination Act 1991.
  1. 4.
    Allegations of limitations of the following human rights under the Human Rights Act 2019 (HR Act):
  1. a.
    Right to Recognition and equality before the law - section 15
  1. b.
    Right to privacy and reputation - section 25
  1. c.
    Right to property - section 24
  1. d.
    Right to health services - section 37
  1. 5.
    Allegations of failures to properly consider human rights - section 58(1) Human Rights Act 2019.[12]
  1. [28]
    Despite the advanced point the proceedings have reached, including that statements of facts and contentions had been filed and served, a draft amended statement of facts and contentions was not annexed to the Complainant's submissions made in support of her amendment application.

The power of the Commission to allow a complaint to be amended

Section 178 of the Anti-Discrimination Act 1991

  1. [29]
    The Commission is a tribunal for the purposes of ch 7 of the AD Act. Section 174B(a)(iv) of the AD Act provides that the Commission has the function, in relation to complaints about contraventions of the AD Act that are referred to it under that Act, of hearing and deciding the complaints.
  2. [30]
    Section 174C of the AD Act provides:
  1. 174C
    Powers of tribunal under relevant tribunal Act
  1. (1)
    If this Act confers jurisdiction on the tribunal in relation to a complaint or other matter, the tribunal may exercise the powers conferred on it under this Act or the relevant tribunal Act.
  1. (2)
    Nothing in this Act limits the industrial relations commission's powers under the IR Act, section 539.
  1. [31]
    Section 178 of the AD Act provides:
  1. 178
    Complaints may be amended
  1. (1)
    The tribunal may allow a complainant to amend a complaint.
  1. (2)
    Subsection (1) applies even if the amendment concerns matters not included in the complaint.
  1. [32]
    The Complainant submits s 178 of the AD Act grants the Commission an unfettered discretion to allow amendments at any stage of the proceedings.[13] The Respondent does not dispute that particular submission.[14]
  1. [33]
    However, the Respondent submits that:
  • an unfettered discretion does not mean the Complainant has an absolute right to amend the Complaint, nor does it mean the Commission should not have regard to the ordinary considerations given when determining applications to amend initiating documents or pleadings in civil proceedings generally and in the Commission;[15]
  • s 539(d) of the IR Act is relevant to the Commission's discretion and provides that, except as otherwise provided for by the IR Act or the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the Commission may '…allow claims in the proceedings to be amended on terms that appear fair and just'; and
  • the authorities which deal with late amendments to pleadings, including Aon Risk Services Australia Ltd v Australian National University[16] ('Aon'), Holcombe v Coulton[17] and Murrays Australia Limited v Training Recognition Council and Ors[18] provide useful guidance to the considerations that ought inform the Commission's discretion. [19]
  1. [34]
    The Respondent went onto submit that considerations of the kinds referred to in the above cases were '…apt to the context in which the Application to Amend was made.'[20]
  1. [35]
    Section 178 of the AD Act has been considered by the Queensland Civil and Administrative Tribunal ('QCAT'). In ST v Metro South Hospital and Health Service & Ors ('ST'),[21] Member Roney QC relevantly stated:
  1. [48]
    As I said in MM and MD, in my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal as unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process. In my view the decisions of this Tribunal which have held otherwise were incorrectly decided. As the Chief Justice concluded in X v Q, even before the 2009 Amendments to s 178 of the AD Act, s 178 gave an "unfettered discretion" to allow amendments to bring new claims.
  1. …
  1. [51]
    The real issue is whether the just and expeditious determination of the matters in issue between these parties would be facilitated by permitting the sort of amendment sought here.
  1. [52]
    In considering whether to grant leave to amend, the principles that are applied by the Courts in this State to similar application in those courts are capable of application by proxy. The considerations relevant to the exercise of the broad discretion under UCPR Rules 375, 376 and 377 are that a Court will give leave to make those amendments:
  1. If it is necessary for those amendments to be made to the genuine dispute between the parties to be determined in one proceeding and to avoid a multiplicity of proceedings between the same parties;
  2. In the exercise of the wide discretion to facilitate the just and expeditious resolution of the real issue; UCPR 5, The principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 inform the exercise of the discretion; Hartnett v Hynes [2009] QSC 225 per Applegarth J at [27];
  3. In the same way that a Court does not oversee the strength of claims set out in a claim which is filed in a proceeding and in respect of which no leave is sought, the Court is not embarking upon the exercise of assessing strength or weakness of claims at a preliminary stage of the proceeding, or at the time when leave is sought to bring amended claims in;
  4. To the extent that the Court might be inclined to exercise a discretion to disallow amendments, it would only do so in circumstances in which, by analogy, it would be inclined to strike out claims pursuant to the Court’s power to strike out claims. That invokes the tests which have been articulated for when Courts are prepared to strike out claims;
  5. Having regard to the fact that a Claim need only briefly state the nature of the claim made (UCPR 14 (2) (a)) and in any event is not required to state all the relief sought, and it is sufficient if the relief claimed to be included in the SOC; Cousens Securities Pty Ltd v CEC Group [2007] 2 Qd R 520 at [9] per McMurdo P.
  1. …
  1. [62]
    In Gough v State of Queensland [2013] QCAT 320 Senior Member Endicott said in relation to a strike out that anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law.
  1. [20]
    The respondent has relied on the authority of the decision by the High Court of Australia in Brisbane South Regional Health Authority v Taylor in which McHugh J discussed why a significant delay in bringing proceedings gives rise to prejudice. His comments are, in my view, as equally pertinent to how prejudice will arise when there is a significant delay in finalising a proceeding. McHugh J’s comments apply in this case to reinforce the sentiment that it would be oppressive to the respondent to allow this complaint to be delayed in its resolution long after the circumstances which gave rise to the complaint have passed. I accept that the public interest requires that disputes are resolved as quickly as possible.
  1. [21]
    The respondent submitted that there is in fact a statutory obligation on QCAT to progress the complaint as expeditiously as possible in s 3(b) of the QCAT Act. The complaint has been before the Commission and then at QCAT for a period in excess of two years now and apart from filing her contentions, there have been no steps undertaken by Ms Gough to progress that complaint. The respondent submitted that the failure of Ms Gough to progress the complaint has resulted in the time and resources of the tribunal being diverted from other applicants who wish to progress their applications conscientiously.
  1. …
  1. [30]
    Anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law. However civil rights are accompanied by civil responsibilities and once proceedings are on foot, it is in the public interest that parties participate fully and expeditiously in the process, without causing unnecessary disadvantage to each other and that parties are willing to take advantage of the processes for dispute resolution before a hearing.
  1. [36]
    In ST, the complainant had filed an amended statement of contentions containing the new allegations.[22] On the facts in ST, in deciding not to allow certain of the amendments as sought by the complainant,[23] QCAT considered:
  • whether the proposed amendments demonstrated sufficient prospects of success; [24]
  • any explanation for not making the new allegations earlier;[25] and
  • whether any evidence was provided that supported the new allegations. [26]
  1. [37]
    Section s 178 of the AD Act has been considered by this Commission.
  1. [38]
    In Michalakellis v LMM Holdings Pty Ltd (No. 3),[27] Industrial Commissioner Power relevantly stated (citations omitted):
  1. [42]
    I refer to the decision of Member Roney in MM v State of Queensland, in which Member Roney states:
  1. In my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal an unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process.
  1. [39]
    In Bond v State of Queensland & Ors (No. 2) ('Bond'),[28] Industrial Commissioner Dwyer relevantly stated:
  1. [25]
    A just resolution to the proceedings remains the paramount consideration.[29] However, the 'just resolution' of a dispute takes into account wider public interest than those of the parties.[30] There is potential for loss of public confidence in the legal system where a court is seen to accede to applications made without adequate explanation or justification.[31]
  1. [40]
    The exercise of the Commission's unfettered discretion under s 178 of the AD Act, as sought by the Complainant, must be informed by the precise facts of the present case. In  fact, what is sought to be amended is the Complainant's complaint as case managed by the Commission after its referral from the QHRC. This was done through Directions Orders, made by the Commission, which ordered the Complainant to particularise her allegations through her statement of facts and contentions.
  1. [41]
    For the reasons I give below, such Directions Orders are made to alert respondents of the case against them and to confine the issues in dispute; and while a statement of facts and contentions does not have the same level of technicality as a pleading in the ordinary civil courts, they serve a similar purpose.
  1. [42]
    In Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2) ('Sun City'),[32] Applegarth J at [25]-[26] set out some of the principles that may be relevant to amendments sought to claims and pleadings under the Uniform Civil Procedure Rules 1999. Relevantly to the facts of the present case and to the submissions made by the parties, those principles, amended to reflect the circumstances of the present case, include:
  • the discretion is guided by the purpose of the Rules, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense;
  • there is a distinction between amendments which are necessary for the just and expeditious resolution of the real issues in the proceedings and amendments which raise new claims and new issues;
  • the Commission should not be seen to accede to applications made without adequate explanation or justification;
  • the existence of an explanation for the amendment is relevant to the Commission's discretion, and invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment;
  • the objective of the Commission is to do justice according to law and, subject to the need to sanction a party for breach of its undertaking to the Commission and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment;
  • justice requires consideration of the prejudice caused to other parties, other litigants and the Commission; and
  • the point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
  1. [43]
    I mention one other consideration relevant to the above.   In paragraphs [9] to [12] and [16] to [17] of these reasons, I referred to the Directions Orders made by the Commission for the hearing and determination of the Complainant's complaint. These Directions Orders were made pursuant to r 41 of the Rules. Rule 6 of the Rules provides:
  1. 6
    Purpose of rules
  1. The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

Section 539(d) of the Industrial Relations Act 2016

  1. [44]
    Section 539 of the IR Act relevantly provides:
  1. 539
    Powers incidental to exercise of jurisdiction
  1. Except as otherwise provided for by this Act or the rules, the court, commission or registrar may–
  1. …
  1. (d)
    allow claims in the proceedings to be amended on terms that appear fair and just;
  1. [45]
    The construction of s 539(d) of the IR Act, as far as it applies to complaints referred to this Commission from the QHRC, is not in issue. My preliminary view is that, having regard to the effect of s 174C(2) of the AD Act, s 539(d) of the IR Act also confers discretion on the Commission to allow a complainant, on terms that appear fair and just, to amend their complaint to include allegations not previously articulated. This is because, while the word 'claims' is not defined in the IR Act, having regard to the phrase '…allow claims in the proceedings to be amended', the power so expressed is broad. Further, there is no statutory indication that suggests 'claims' should be read narrowly and not otherwise given its ordinary contextual meaning, namely, '…an assertion of a right or alleged right.'[33]   
  1. [46]
    Section 174C(1) of the AD Act relevantly provides that if the AD Act confers jurisdiction on the Commission in relation to a complaint, the Commission may exercise the powers conferred on it under the AD Act or under the IR Act.
  1. [47]
    It is unnecessary for me to determine if the exercise of the discretion contained in s 178 of the AD Act involves considerations different to those in the exercise of the discretion contained in s 539(d) of the IR Act. This point has not been argued by the parties.
  1. [48]
    The Complainant presses her application on the basis that the discretion in s 178 of the AD Act should be exercised in her favour. The Respondent resists the Commission exercising that power. For those reasons, I will determine the Complainant's application by considering whether or not to exercise the Commission's discretion under s 178 of the AD Act.

Should the Complainant be allowed to amend her complaint in respect of each of the new claims?

  1. [49]
    The Complainant and the Respondent advance a number of submissions in respect of the amendment application. These submissions deal with principles of the type to which I have referred to above.

The Complainant's submission that the Respondent has been aware of the factual circumstances of the new claims since the complaint was made to the QHRC

  1. [50]
    The Complainant expressly contends that the Respondent has known about the factual circumstances of the new allegations:
  • from 22 September 2022, by the material sent to it from the QHRC following her complaint to the QHRC, and by the material contained in the referral of her complaint from the QHRC to the Commission on 27 March 2023; and
  • from 30 August 2024, by virtue of the material contained in her affidavit filed on that date.[34]
  1. [51]
    The Complainant then submits that considering the time the Respondent has been aware of the facts '…of this matter, it would not be unreasonable to expect that they would have no difficulty in incorporating these amendments into their argument.'[35]
  1. [52]
    The Respondent submits that such a submission is misconceived because:
  • contending that the Respondent knew about the factual circumstances of allegations is different from being put on notice about the material facts said to have contravened particular provisions in the AD Act or the HR Act;
  • the Complainant, by her application to amend, has not put it on notice as to those material facts, and she cannot do so until she files and serves an amended statement of facts and contentions (assuming she is allowed to amend her complaint); and
  • it has prepared its statement of facts and contentions, provided discovery and filed its evidence on the material facts contained in the Complainant's contentions, and it will now be prejudiced in its ability to gather evidence in response to any new claims that are permitted to be made.[36]
  1. [53]
    I accept the Respondent's submissions.
  1. [54]
    In paragraphs [9] to [12] and [16] to [17] of these reasons, I set out the Directions Orders issued by the Commission for the hearing and determination of the Complainant's complaint, which included that the parties file and serve statements of facts and contentions.
  1. [55]
    The purpose of Directions Orders issued by the Commission, for the filing and serving of statements of facts and contentions, was addressed by Martin J, President in Yousif v Workers’ Compensation Regulator ('Yousif').[37]Although that case concerned an appeal under the Workers' Compensation and Rehabilitation Act 2003 to the Commission, his Honour's  comments about the purpose of statements of facts and contentions are apposite:[38]
  1. Statements of Facts and Contentions
  1. [10]
    The Commissioner relied, in part, on the Statement of Facts and Contentions filed by the appellant. The role of such Statements was the subject of submissions and it will assist if their status is examined before the grounds of appeal are considered.
  1. [11]
    In appeals brought to the Commission under the Act, it was once the standard practice for a direction to be given requiring the appellant to file and serve a Statement of Stressors. It is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (IR Act). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction.
  1. [12]
    In Blackwood v Adams, I referred to Statements of Stressors as setting "the boundaries of the application". More recently, in Carlton v Blackwood I said:
  1. "An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment." 
  1. [13]
    A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party’s case and, if an admission is made, to rely on that admission.
  1. [14]
    Section 531 requires that the Commission be:
  1. "… guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of– 
  1. (a)
    the persons immediately concerned; and
  1. (b)
    the community as a whole."
  1. [15]
    It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.[39]
  1. [56]
    Directions Orders made by Members of the Commission are made pursuant to r 41 of the Rules and, as provided in r 6 of the Rules, the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.
  1. [57]
    In respect of complaints made under the AD Act to the QHRC that are referred to the Commission, Members of the Commission commonly utilise standard Directions Orders which direct the parties to file and serve statements of facts and contentions and to make disclosure. Typically, these Directions Orders are made in advance of the complaints being the subject of conciliation by the Commission. Such Directions Orders are specific as to what is required to be set out in a statement of facts and contentions. For example, in respect of an allegation of direct discrimination in a complaint, the standard Directions Orders provide:
  1. for a complaint of direct discrimination:
  1. identify the section or sections of the AD Act alleged to have been contravened;
  1. identify the name or names of the persons alleged to have contravened the AD Act;
  1. if the Complainant relies upon an actual person as the comparator, state the name of the comparator and why that person is an appropriate comparator;
  1. in the alternative, if the Complainant relies upon a hypothetical comparator as the appropriate comparator, describe the hypothetical comparator;
  1. describe how the Complainant contends that they were treated less favourably, than the appropriate comparator, by the person or persons alleged to have contravened the AD Act;
  1. [58]
    In stating the above, I have not lost sight of the fact that s 447(2) of the IR Act provides that the Commission must perform its functions, which includes any other function conferred on the Commission under another Act,[40] in a way that is consistent with the objects of the IR Act and which '… avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.' For the same reasons given by Martin J, President in Yousif, the requirement that a complainant clearly articulates their case of an alleged contravention of the AD Act or of an alleged unreasonable limitation of a human right under the HR Act, or of an alleged failure to give proper consideration to a human right under the HR Act, is not an unnecessary technicality. The purpose of a Directions Order requiring a complainant to set out the material facts and contentions of their case is for the purposes of fairness and efficiency and does not rise to the level of technicality as required of pleadings in civil procedure rules.[41]
  1. [59]
    Despite the decision in Fellows No. 1,  and the subsequent Directions Orders I made, the Complainant chose to articulate her new claims in her outline of argument that was directed to be filed and served following the parties being directed to file and serve their affidavit material and at a time when trial dates had been set.
  1. [60]
    In my view, the Complainant's argument that she should be allowed to amend her complaint on the basis that, a number of years ago, certain facts were made known to the Respondent by or as a consequence of her complaint to the QHRC, which she now claims support her new claims, is not a meritorious submission.
  1. [61]
    The mere circumstance of the Respondent's knowledge of certain facts is a long way short of the Complainant putting the Respondent on fair notice of the case it has to meet. That is, such knowledge is a long way short of the Complainant clearly alleging material facts upon which it is contended there has been a contravention of the AD Act, or of the Complainant clearly alleging material facts upon which it is contended there has been an unreasonable limitation of a human right, or a failure to give proper consideration to a human right, under the HR Act.  The Complainant, even at this late stage, has not taken the step of providing the Respondent or the Commission with a draft amended statement of facts and contentions that articulates the six new claims.
  1. [62]
    For these reasons, this submission by the Complainant is not accepted.

The Respondent's submission that no explanation has been given by the Complainant for not earlier making the new claims

  1. [63]
    By way of summary, the Respondent submits that:
  • in respect of the first, second, third and fifth new claims:
  1. –the Complainant has made no attempt to explain why she was previously unable to articulate those claims earlier in the proceeding and she does not allege she did not have an opportunity to make those claims earlier;[42] and
  1. –the Complainant has also made no attempt to explain why she sought to completely transform her case without giving notice to the Respondent or the Commission and instead allowing the Respondent to discover the changes (in her outline) and bring them to the Commission's attention;[43] and
  • in respect of the fourth and sixth new claims, the Complainant's submission that those claims only became apparent to her on being served with the Respondent's affidavit material should be rejected because she alleges the absence of information in that material caused her to discover those new claims.[44]
  1. [64]
    I will address each of the new claims.

The first new claim

  1. [65]
    In paragraph 23 of the Complainant's submissions, she states:

After consideration of the affidavit of the decision maker, Ms Joanne Edwards, filed by the Respondents on 11 October 2010 [sic].[45] The Complainant alleges that the failure to consider the reasonable cause was discrimination based on impairment under section 7(h) and a further contravention of section 101.

  1. [66]
    The Complainant did not particularise which aspect of the affidavit of Ms Joanne Edwards filed on 11 October 2024 ('Ms Edwards' affidavit') caused her to make the first new claim.
  1. [67]
    The Respondent submitted:[46]
  • having regard to paragraph 23 of the Complainant's submissions, it was the Respondent serving her with Ms Edwards' affidavit that caused her to discover this new claim but that does not explain why the Complainant was not able to articulate this claim earlier in the proceeding; and
  • the only adequate explanation is that, on receipt of Ms Edwards' affidavit, the Complainant realised the essence of the first existing claim was demonstrably untrue because Ms Edwards' evidence is that she did brief out the review and, rather than resiling from the doomed claim, the Complainant has sought to completely redraw it which is not a proper reason to allow the Complainant to amend the complaint to include the first new claim.
  1. [68]
    There is merit in the Respondent's submission. The first existing claim is that the Respondent discriminated against the Complainant on the basis of her impairment by not seeking an independent legal provider to decide her application to review the decision by WorkCover not to waive the time for her to make her application for workers' compensation. Ms Edwards, in her affidavit, states that the review was conducted by way of advice sought from a Barrister on the Regulator's legal panel and, as the decision maker, she decided the matter on the basis of the advice from the Barrister as opposed to her deciding the review herself.
  1. [69]
    However, more relevantly, the first new claim is that the Respondent indirectly discriminated against the Complainant on the basis of her impairment because the Regulator rejected her participation in a medically supervised return to work and rehabilitation plan as evidence of reasonable cause for not making her application for workers' compensation within the limitation period. Ms Edwards does not give any evidence in her affidavit about that matter, other than exhibiting the draft review decision provided by the Barrister on the Regulator's legal panel. However, the final review decision as emailed to the Complainant by the Regulator on 19 March 2021, and as exhibited to the Complainant's affidavit filed on 4 September 2024, relevantly stated:
  1. You conclude your review submissions advising that the delay in making an application for compensation was due to a cause consistent with a reasonable standard of conduct, as you:
  1. –were acting under medical advice from your Psychiatrist and General Practitioner that participating in a rehabilitation program with a view of entering back into the workforce as quickly as possible would be the best course to take to overcome your injury;
  1. …
  1. –had at all times complied and co-operated with the employer, its officers and contractors in respect to a return to work rehabilitation program within the same organisation;
  1. –had demonstrated that you were on the road to recovery, therefore the rehabilitation may have been effective if allowed to continue.
  1. …
  1. –made an application for compensation the day after the cessation of your return to work rehabilitation program host placement with the Office of Industrial Relations, due to the dramatic decline in your health and the unlikelihood that you would be able to return to work for some time.
  1. …
  1. Further, prior to the expiry of the six-month limitation period you have been able to enter into negotiations with the Office of Industrial Relations regarding in essence, a host employment situation and then commence a graduated return to work program prior to the expiry of the six-month limitation period. This once again supports a finding in my view that you have made a deliberate decision to pursue another path rather than enforcing your ability to claim workers' compensation benefits.
  1. [70]
    Having regard to these reasons in the final review decision of the Regulator, it is obvious that the issue about the Complainant's participation in the return to work and rehabilitation program was something that was submitted by her as a ground for reviewing the decision of WorkCover; and that the Regulator rejected that submission. In my view, there is no reason the Complainant could not have made the allegation, the subject of the first new claim, at the time she made her complaint to the QHRC on 6 December 2021.
  1. [71]
    That is, the Complainant's explanation that she only had the means to make the allegation the subject of the first new claim upon considering Ms Edwards' affidavit filed in October 2024, particularly where Ms Edwards did not, in her affidavit, directly refer to the material issue – the Complainant's participation in a medically supervised return to work and rehabilitation plan – is not an acceptable explanation.
  1. [72]
    For these reasons, I find that the Complainant does not have an adequate explanation for her delay in making the first new claim.

The second new claim

  1. [73]
    The Complainant submits that the assertions that make up the second new claim were included in '… the QHRC referral material of 27 March 2023, specifically in the Complainants [sic] correspondence of 26 June 2022 and 24 August 2022.'[47]
  1. [74]
    The Complainant advances no reason for her delay in making this claim until January 2025 when she filed her outline.
  1. [75]
    For this reason, I find that the Complainant does not have an adequate explanation for her delay in making the second new claim.

The third new claim

  1. [76]
    The Complainant submits that the '… QHRC referral material includes correspondence from the Complainant regarding the 2nd and 3rd Respondents [sic] request for an independent medical examination' and, by footnote, specifically refers to her correspondence to the QHRC dated 24 August 2022.[48]
  1. [77]
    The Complainant advances no reason for her delay in making this claim until January 2025 when she filed her outline.
  1. [78]
    For this reason, I find that the Complainant does not have an adequate explanation for her delay in making the third new claim.

The fourth new claim

  1. [79]
    In relation to the fourth new claim, the Complainant submits:
  1. [33]
    This is a new claim was [sic] based upon information contained in the complaint and the subsequent information provided by the respondents in the form of affidavits after the complaint was made.
  1. [80]
    Having regard to paragraphs 52 and 55 of her outline, the Respondent's affidavits to which the Complainant seems to be referring in paragraph 33 of her submissions are Ms Edwards' affidavit and the affidavit of Mr David Gore filed on 11 October 2024 ('Mr Gore's affidavit').
  1. [81]
    I cannot accept these submissions.
  1. [82]
    In making these submissions, the Complainant does not refer to any particular evidence in the affidavits of Ms Edwards and Mr Gore. Apart from one issue in respect of those affidavits, I am left to speculate about the nature of the evidence, contained in those affidavits, which gives rise to the factual issues upon which the Complainant now says she could only make the allegations contained in the fourth new claim in January 2025. To this extent, the Complainant's submissions are vague and not persuasive.
  1. [83]
    The one issue is that the Complainant submits that there was no reference made by Ms Edwards or by Mr Gore in their affidavits to them considering the Complainant's human rights in making the decisions they made.
  1. [84]
    Ms Edwards' decision was to affirm the decision of WorkCover not to waive the time limitation period for the Complainant to make an application for workers' compensation. 
  1. [85]
    However, Ms Edwards' reasons (which, in her affidavit, were the reasons she adopted as advised by the Barrister on the Regulator's panel) were contained in her reasons for decision emailed to the Complainant on 19 March 2021. If there was no consideration by Ms Edwards of the Complainant's human rights in making the review decision, then that would have been apparent on the face of the reasons for decision given by Ms Edwards. Yet, the Complainant chose not to make the allegation the subject of the fourth new claim until she filed her outline in January 2025.
  1. [86]
    The decision made by Mr Gore, communicated in his letter to the Complainant dated 6  May 2022 (which is exhibited to the Complainant's affidavit filed on 4 September  2024) directed the Complainant to be examined by a doctor pursuant to s 175 of the Public Service Act 2008.
  1. [87]
    Mr Gore's reasons for the direction that the Complainant be examined by a doctor were contained in an annexure to his letter directing the Complainant to be examined by a doctor. The annexure was headed 'Statement of Reasons' which is a two and a half page document which gave detailed reasons for his decision. If there was no proper consideration by Mr Gore of the Complainant's human rights in making his decision, then that would have been apparent on the face of the detailed reasons for decision given by Mr Gore in May 2022. In fact, in the 'Statement of Reasons', Mr Gore relevantly stated:

Finally, I acknowledge that my decision may potentially limit Ms Fellows' human rights, including the right to privacy and reputation, which extends to protect professional relationships and reputation. However, in my view, any limitation is demonstrably justified as it is in the public interest to ensure the safety and wellbeing of employees of the OWHSP, including Ms Fellows herself. I consider that this outweighs the limited potential impact on Ms Fellows' human rights.

  1. [88]
    Again, the Complainant chose not to make the allegation the subject of the fourth new claim until she filed her outline in January 2025.
  1. [89]
    For these reasons, I do not accept the Complainant's explanation for not making the allegations the subject of the fourth new claim prior to January 2025.
  1. [90]
    I find that the Complainant does not have an adequate explanation for her delay in making the fourth new claim.

The fifth new claim

  1. [91]
    The fifth new claim is that by the Respondent confirming the decision of WorkCover not to waive the time period for her to make her application for workers' compensation, the Respondent unreasonably limited her human rights to property (s 24 of the HR Act) and to health services (s 37 of the HR Act).
  1. [92]
    In respect of the fifth new claim, the Complainant relevantly submits (footnotes omitted):
  1. [37]
    The Supreme Court decision of Austin BMI Pty Ltd v Deputy Premier considered section 24 of the HR Act in detail. This decision was delivered on 5 May 2023, approximately one month after the complaint was filed. The allegation is based on the facts contained within the complaint referral materiel [sic] and subsequent guidance from the Court regarding the interpretation of section 24 of the HR Act.
  1. [38]
    The Complainant seeks leave to have the allegation made under section 24 of the HR Act 'limitation of right to property' included in her complaint.
  1. [39]
    The Complainant originally alleged a limitation on her right to health services under section 37 of the HR Act in her original online complaint form submitted to the QHRC on 6 December 2021. This was not picked up by the QHRC in the referral of the complaint. It would be prejudicial to the Complainant not to allow an allegation that had been made in the original complaint but not identified by the QHRC in its correspondence to the court.
  1. [40]
    The Complainant seeks leave to have the allegation made under section 37 of the HR Act 'limitation on rights to health services" included in her complaint.
  1. [41]
    Both the allegations under sections 24 and 37 of the HR Act are supported by the factual content contained in the complaint, in particular, at pages 177 to 178 of the QHRC referral.
  1. [93]
    I do not accept the Complainant's submissions. This is for a number of reasons.
  1. [94]
    First, assuming (without deciding) that the decision in Austin BMI Pty Ltd v Deputy Premier ('Austin BMI')[49] has some relevance to the Complainant's fifth new claim in respect of the human right to property as contained in s 24 of the HR Act, that decision was delivered by Freeburn J on 5 May 2023. The Complainant filed her contentions, pursuant to the Directions Orders made by Industrial Commissioner McLennan, on 22 September 2023, some four months after the date of that decision. No adequate explanation is provided why, having regard to the date that decision was made, the Complainant was at some disadvantage which meant she could not make the allegations the subject of the fifth new claim until January 2025.
  1. [95]
    Secondly, the Complainant again submits that the allegations contained in the fifth new claim are based upon facts contained within the '… complaint referral' material which I can only assume to mean material which includes her original complaint to the QHRC made on 6 December 2021 and the subsequent written material she provided to the QHRC in support of her complaint. The Complainant does not advance any explanation as to why, having regard to the existence of that material, she was unable to articulate the allegations contained in the fifth new claim prior to January 2025 when she filed her outline of argument.
  1. [96]
    Thirdly, the Complainant criticises the QHRC because it allegedly did not pick up the allegations, the subject of the fifth new claim, in the material she provided to the QHRC. The submission is that the QHRC should have characterised her complaint as including the two allegations the subject of the fifth new claim when it referred the complaint to this Commission and that, subsequently, she will be prejudiced if she is not allowed to now make that allegation. I do not accept this submission. Although I deal with the issue in more detail later in these reasons, it is accepted that the Commission is not bound by any characterisation by the QHRC of a referred complaint. The plain fact is that if the Complainant, in March 2023 when the QHRC referred her complaint to this Commission, believed that the QHRC did not properly characterise her complaint by not including allegations that are the subject of the fifth new claim, she could have included those allegations in her statement of facts and contentions filed on 22 September 2023.
  1. [97]
    For these reasons, I do not accept the Complainant's explanation for not making the allegations the subject of the fifth new claim prior to January 2025.
  1. [98]
    I find that the Complainant does not have an adequate explanation for her delay in making the fifth new claim.

The sixth new claim

  1. [99]
    In relation to the sixth new claim, the Complainant submits (footnotes omitted):
  1. [42]
    The factual issues in this paragraph became known to the Complainant when she received the Respondents [sic] affidavit material filed in the QIRC registry on 11 October 2024. This is a new claim based on that material and the contentions made in the QHRC referral material.
  1. [100]
    One of the footnotes to this submission refers to the affidavit of Ms Janene Hillhouse filed by the Respondent on 11 October 2024 ('Ms Hillhouse' affidavit') and also to Ms Edwards' affidavit.
  1. [101]
    Again, the submissions made by the Complainant, to the extent that she identifies relevant evidence in Ms Edwards' affidavit and in Ms Hillhouse' affidavit which she claims put her on notice as to certain facts to be able to make the allegations the subject of the sixth new claim, are vague. The Complainant does not refer to any specific part of Ms Edwards' affidavit or Ms Hillhouse' affidavit upon which she makes the above submission.
  1. [102]
    The Complainant submits that the allegations contained in the sixth new claim are based upon the material and contentions made in the QHRC referral material. Again, the obvious issue in respect of such a submission is why, having regard to the fact that material has been known to the Complainant, being very favourable to her, since September 2022, she was unable to articulate the allegations contained in the sixth new claim until January 2025. The Complainant has not addressed this obvious issue in her submissions.
  1. [103]
    For these reasons, I do not accept the Complainant's explanation for not making the allegations the subject of the sixth new claim prior to January 2025.
  1. [104]
    I find that the Complainant does not have an adequate explanation for her delay in making the sixth new claim.

No prior notice given of the new claims contained in the Complainant's outline

  1. [105]
    The Respondent submits that the Complainant made no attempt to explain why she sought to completely transform her case without giving notice to it or the Commission and instead allowing the Respondent to discover the changes (in her outline) and bring them to the Commission's attention.[50]
  1. [106]
    This is a valid submission.
  1. [107]
    There is no evidence of the Complainant giving the Commission and the Respondent any prior notice of the six new claims prior to her filing and serving her outline. No explanation is given by the Complainant as to why she gave no such notice.

The Complainant's submissions that there would be no procedural unfairness to the Respondent

  1. [108]
    The Complainant submits that:
  • all matters raised in her outline were raised '…directly or indirectly':
  1. –in the material referred from the QHRC to this Commission on 27 March 2023; and
  1. –in the material supplied with her affidavit filed on 4 September 2024;[51]
  • the Respondent was notified of the complaint and sent all the materials with an invitation to respond (from the QHRC) on 22 September 2022[52] and it has been aware of the factual basis of these allegations since that time;[53] and
  • considering the time the Respondent has been aware of the facts of the matter, it would not be unreasonable to expect it would have no difficulty in '… incorporating these amendments into their argument'.[54]
  1. [109]
    The Complainant then submitted:
  1. [46]
    There are no new factual allegations raised by these amendments, the proposed amendments:
  1. a.
    clarify and expand upon the existing allegations, ensuring the proper determination of the substantive issues in dispute.
  1. b.
    do not introduce entirely new causes of action but rather elaborate upon and refine the existing claims.
  1. c.
    do not fundamentally alter the nature of the original complaint but provide necessary clarifications and additional information to ensure a fair and just determination of the issues raised.
  1. d.
    will not cause procedural unfairness to the respondent: The amendments arise from the same factual circumstances as the original complaint, ensuring the respondent is not disadvantaged.
  1. e.
    do not introduce fundamentally new allegations that would require the Respondent's [sic] to prepare an entirely different defence.
  1. [110]
    I reject these submissions. This is for a number of reasons.
  1. [111]
    First, it is not accurate to contend that the allegations contained in the six new claims clarify, expand upon, elaborate upon and refine the (four) existing claims. This conclusion is borne out by the following analysis.
  1. [112]
    As stated, the Complainant's four existing claims are:
  • that the Respondent directly discriminated against the Complainant on the basis of her impairments in the area of State laws and programs by Ms Edwards' decision not to '..brief out' the Complainant's application to review WorkCover's decision not to waive the time limit for the Complainant to apply for workers' compensation;
  • that the Respondent directly discriminated against the Complainant in the work area by Mr Gore's direction that the Complainant be medically examined because Mr Gore's questions to the doctor were framed with his knowledge of one of her impairments; and
  • that the Respondent unreasonably limited the Complainant's human right to privacy under s 25 of the HR Act when Ms Graham:
  1. –on 8 August 2022, gave a copy of the report of her directed medical examination to her own doctor; and
  1. –on 2 and 3 December 2022, contacted her doctor's office about the report.
  1. [113]
    Ms Edwards' decision, which is the subject of the first existing claim, is common to the first, fourth and fifth new claims and is related to the sixth new claim. Mr Gore's direction, the subject of the second existing claim, is common to the third and fourth new claims. Further, while it is certain contact by Ms Graham with the Complainant's doctor that is impugned in the third and fourth existing claims, it is different alleged conduct by Ms Graham that is impugned by the second new claim.
  1. [114]
    Despite the above commonality, in substance, the six new claims concern new allegations of unlawful discrimination, new allegations of unreasonable limitations of human rights and new allegations that the Respondent failed to give proper consideration to certain human rights.
  1. [115]
    The first new claim is that by not accepting her participation in a medically supervised return to work and rehabilitation plan, as evidence of a reasonable cause for not lodging her application for workers' compensation by the prescribed time (by Ms Edwards' decision), the Respondent indirectly discriminated against the Complainant, within the meaning of s 11 of the AD Act, in the work area on the basis of one of her impairments.[55] The first existing claim is one of direct discrimination by Ms Edwards' decision, with the claim being that the failure of Ms Edwards to '…brief out' the review decision by the Regulator was on the basis of the Complainant's impairments. Even in her submissions at paragraph 24, the Complainant states that this (first new) claim is in addition to the complaint made in paragraph 69 of her contentions.
  1. [116]
    The second new claim is that the decision by Ms Graham not to consider the Complainant’s return to work proposal, or to enter into a discussion with the Complainant regarding what the Respondent would accept for her return to work, constituted direct discrimination in the work area on the basis of the Complainant’s impairments.[56] This is a new claim based upon different conduct by Ms Graham to that in which she (Ms Graham) allegedly engaged in the third and fourth existing claims.
  1. [117]
    The third new claim is that the questions asked by Mr Gore of Dr Luke Murphy, Psychiatrist, in Mr Gore's letter to Dr Murphy dated 6 May 2022 for the purposes of Dr Murphy conducting a medical examination of the Complainant pursuant to s 175 of the Public Service Act 2008, was a request for unnecessary information contrary to s 124 of the AD Act.[57] This is a new allegation of unlawful discrimination. 
  1. [118]
    The fourth new claim is that:
  • by her written reasons for decision not to waive the time limit for the Complainant to apply for workers’ compensation, Ms Edwards did not consider the Complainant’s human rights to property (s 24 of the HR Act), privacy and reputation (s 25 of the HR Act) and health services (s 37 of the HR Act) contrary to s 58(1)(b) of the HR Act; and
  • by Mr Gore’s letter to Dr Murphy dated 6 May 2022, Mr Gore did not consider the Complainant’s human rights to privacy and reputation (s 25 of the HR Act) contrary to s 58(1)(b) of the HR Act.[58]
  1. [119]
    These are new claims under the HR Act, namely, that Ms Edwards by her decision and Mr Gore by his direction, failed to give proper consideration to certain of the Complainant's human rights. In  her submissions at paragraph 33, the Complainant states that this claim is a new claim.
  1. [120]
    The fifth new claim is that Ms Edwards' decision, confirming the decision of WorkCover not to waive the time limit for the Complainant to make her application for workers’ compensation, was not compatible with the Complainant’s human rights to property under s 24 of the HR Act and to health services under s 37 of the HR Act, contrary to s 58(1)(a) of the HR Act.[59] This is a new claim of unreasonable limitations of the Complainant's human rights. The Complainant states as much in paragraphs 38 and 40 of her submissions.
  1. [121]
    The sixth new claim is that the Regulator’s process in making the decision not to waive the time for the Complainant to make an application for workers’ compensation was not compatible with the Complainant’s human right to privacy and reputation under s 25 of the HR Act and was contrary to s 58(1)(a) of the HR Act.[60] This is a new claim of an unreasonable limitation of a Complainant's human right. The Complainant, at paragraph 42 of her submissions, states that this is a new claim.
  1. [122]
    Secondly, for the same reasons given immediately above, the six new claims in fact fundamentally alter the nature of the original complaint because of their number and substance. The six new claims are new and different claims to those made in the Complainant's statement of facts filed on 22 September 2023 that survived the decision in Fellows No. 1.
  1. [123]
    Thirdly, a court established by legislation, as is the case with the Commission,[61] means that any jurisdiction conferred on it is necessarily conditioned by the requirement that it observes procedural fairness in the exercise of that jurisdiction.[62] In respect of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[63] An order that parties frame their claims in statements of facts and contentions, prior to a hearing, avoids practical injustice.[64]
  1. [124]
    The case the Respondent has presently come to meet is that of the first, second, third and fourth existing claims contained in the Complainant's contentions filed on 22 September 2023. To simply allow the six new claims to be made by virtue of their inclusion in the Complainant's outline will result in procedural unfairness to the Respondent.  To ensure procedural fairness to the Respondent, if I allowed the Complainant to amend her complaint to make the six new claims, I would have to order that she file and serve an amended statement of facts and contentions that properly set out the material facts and contentions in respect of the six new claims and, of course, the remedies she seeks in respect of them. This is so that the Respondent would have proper notice of the new and different case it was to meet. The Respondent would then have to be permitted to file and serve an amended response to the Complainant's amended statement of facts and contentions. It would be likely that, in respect of the new and different claims, the Respondent would have to reconsider its duty of disclosure under r 46 of the Rules and the affidavit evidence upon which it was going to rely.
  1. [125]
    For all these reasons, I find that, given the point at which the proceedings have reached, to now allow the Complainant to introduce the six new claims, by merely referring to them in her outline, would result in procedural unfairness to the Respondent.
  1. [126]
    This is a strong factor against allowing the Complainant to amend her complaint.
  1. [127]
    There is one other related matter.
  1. [128]
    In Aon,[65] Gummow, Hayne, Crennan, Kiefel and Bell JJ relevantly stated (citations omitted):
  1. 112
    A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
  1. 113
    In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
  1. 114
    Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to  put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU’s claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
  1. [129]
    Since it was referred from the QHRC to this Commission, the complaint has been case managed by a series of Directions Orders made by the Commission. These Directions Orders are for the purpose of the just and expeditious disposition of the business of the Commission at a minimum of expense. The Complainant has provided no cogent or persuasive reasons why, at this advanced stage of the proceeding, she should be allowed to amend her complaint to introduce the six new claims. The trial was to take place in March 2025. The trial dates were vacated because, following issue being taken by the Respondent with the new claims contained in the Complainant's outline, I directed that the Complainant make a formal application to amend her complaint. In the absence of meritorious reasons why the Complainant should be allowed to amend her complaint, the public interest in the just and expeditious disposition of the business of the Commission, at a minimum of expense, outweighs the disappointment of the Complainant in not being able to agitate the six new claims.

Submissions about the prospects of success of the six new claims

  1. [130]
    The Complainant, in her outline and in her submissions, made some submissions that went to the prospects of success of her six new claims.  
  1. [131]
    In respect of the first new claim, as I understand her outline,[66] the Complainant submitted that the term imposed was the limitation period, contained in the Workers' Compensation and Rehabilitation Act 2003,[67] for a worker to make an application for workers' compensation. In the Complainant's outline and in her submissions, no submission was made as to how it was that the Regulator itself imposed such a term, why her impairments meant that she could not practically comply with such a term, and why any such imposed term was unreasonable. On the basis of the submissions made, I consider the first new claim to be weak.
  1. [132]
    In respect of the second new claim, the submission made in the Complainant's outline, about s 8 of the AD Act and the claim of direct discrimination by Ms Graham on the basis of her impairments, is confusing. Section 8 of the AD Act provides:
  1. 8
    Meaning of discrimination on the basis of an attribute
  1. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of–
  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.
  1. Example of paragraph (c) –
  1. If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.
  1. [133]
    In her outline, the Complainant, by reference to s 8(c) and (d) of the AD Act, submits that Ms Graham's alleged conduct of not considering her return to work proposal, or not discussing what the Respondent would accept for her return to work, was direct discrimination on the basis of a characteristic that the Complainant was presumed to have or had, or an attribute she was presumed to have.[68]  However, s 8(c) and (d) of the AD Act do not concern the actual or imputed characteristics of a person with an attribute. The Complainant is not clear in her outline about the basis upon which she contends Ms Graham's alleged conduct constituted direct discrimination in the work area. That is, it is not clear if the allegation is that Ms Graham discriminated against the Complainant on the basis of a characteristic that Ms Graham imputed to her because she had one or both of her impairments, whether Ms Graham discriminated against the Complainant on the basis of an impairment Ms Graham presumed the Complainant had, or whether Ms Graham discriminated against the Complainant on the basis of an impairment that the Complainant had at some point. For these reasons, it is difficult to assess the prospects of success of this new claim.
  1. [134]
    In respect of the third new claim, the submission made by the Complainant in her outline was that the questions Mr Gore asked of Dr Murphy, by Mr Gore's direction, constituted a request for unnecessary information on which unlawful discrimination might be based contrary to s 124 of the AD Act. No other submissions were made as to the prospects of that claim. The possible application of s 124(3) of the AD Act, having regard to the circumstances in which Mr Gore asked questions of Dr Murphy about the Complainant, was not addressed even by way of outline.[69] On the basis of the submissions made, I consider the third new claim to be weak.
  1. [135]
    In respect of the fourth new claim, the submission made was that certain documents contained in the referral material from the QHRC, and that Ms Edwards' affidavit and Mr Gore's affidavit, supported allegations under s 58(1)(a) of the HR Act.[70] In her outline, the submission also made by the Complainant, supported by authority,[71] was that there was no evidence Ms Edwards or Mr Gore '…seriously turned' their minds to the possible impacts of their decisions on her human rights, the implications of that for her '… and any countervailing interests or obligations identified.'[72] On the basis of this latter submission, this part of the claim seems to be at least arguable.
  1. [136]
    In respect of the first part of the fifth new claim, in her submissions, the Complainant referred to the decision of Freeburn J at [327]-[333] in Austin BMI[73] which she submitted '…considered s 24 of the HR Act in detail.'[74]
  1. [137]
    In Austin BMI,[75] Freeburn J relevantly stated (citations omitted):
  1. [330]
    Here, the interest underlying the statutory right to take part in an appeal under s 229 is not a property interest such as a debt or an interest in real property.
  1. [331]
    Consistent with this finding, I accept the Attorney-General’s submission that, in spite of the liberal interpretation of the concept of property in s 24, the values underlying the right to property in the Human Rights Act are the need to ensure that human beings can supply themselves with food and otherwise support themselves. The right is thought to be a strategic human right, a right that protects other rights but also valuable in itself as a component of human dignity.  Personal property such as food, clothing and housing is at the core of the right,  as it ‘lies closer to the core of human dignity’. The Ashworth parties’ dignity, and their ability to enjoy other human rights, are not at stake in deciding whether the statutory right in s 229 of the Planning Act is a form of property.
  1. [138]
    In her outline,[76] the Complainant submitted that Freeburn J at [331] in Austin BMI,[77] considered '…the term "property" as "a strategic right to protect other rights but also valuable in itself as a component of human dignity,"' which supported her contention that her need to access workers' compensation, assistance with medical expenses and rehabilitation support '… is essentially a "strategic human right" that lies closure [sic] to the core of human dignity and as such a property right pursuant to s. 24 of the Act.'  The Complainant's outline does not, in any way, deal with the applicable sub-section of s 24 of the HR Act, namely, s 24(2) which provides that a person '…must not be arbitrarily deprived of the person's property.'[78] Even assuming (without deciding) that access to workers' compensation, assistance with medical expenses and rehabilitation support is '…property' within the meaning of s 24(2) of the HR Act, the Complainant does not advance any reason why the review decision by Ms Edwards (of the Regulator), made under s 545(1) of the Workers' Compensation and Rehabilitation Act 2003 by having regard to s 131(5) and (6) of the Workers' Compensation and Rehabilitation Act 2003,[79] was arbitrary[80] within the meaning of s 24(2) of the HR Act.
  1. [139]
    Other than her reference to s 5(2) of the Workers' Compensation and Rehabilitation Act 2003 in paragraph 58 of her outline, which refers to the main provisions of the workers' compensation scheme established by that Act for injured workers in their employment, no submission was made supporting the second part of the Complainant's fifth new claim, namely, that the decision not to waive the limitation period for her to make her application for workers' compensation limited her right to health services. On the basis of the submissions made, I consider the fifth new claim to be weak.
  1. [140]
    In respect of the sixth new claim, the only submission made in her outline is that reproduced in paragraph [26] of these reasons. The submission made is that the Complainant '…is not confident' that her human right to privacy and reputation were protected by the Regulator's process in making the review decision. On the basis of the submissions made, I consider this new claim to be weak.

Other matters

The Commission is not bound by the QHRC's characterisation of her complaint

  1. [141]
    The Complainant submits that the authorities indicate that the Commission is not bound by the QHRC's characterisation of her complaint and that the QHRC's characterisation ought not prejudice a complainant who wants to amend a claim.[81]
  1. [142]
    In ST,[82] Member Roney QC stated:
  1. [41]
    There is a line of authority, including MM and MD v State of Qld [2014] QCAT 478, Wilson v Lawson [2008] QADT 27 and Yohan v Qld Basketball Incorporated [2010] QCAT 459, which has acknowledged that when examining the complaint which is before this Tribunal, that the Tribunal is not bound by its characterisation by the ADCQ in the referral here. Hence, so long as the essential characteristics of the complaint as made to the QHRC are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence.
  1. [42]
    Hence, whether the character of the complaint is specifically identified, the body of the complaint whether it was in the goods and services area, or some other area, or whether or not the QHRC in its referral of the complaint made reference to some or other area in which the alleged discriminatory conduct occurred, ought not prejudice an Applicant here who seeks to amend to make clear that such is a basis for a claim, or indeed to amend to include such a claim.
  1. [143]
    The relevance of these principles must be examined in light of the facts of a particular case.
  1. [144]
    In the present case, if the new claims were made by the Complainant soon after the complaint was referred to this Commission, or indeed soon after she filed her statement of facts and contentions, those facts may have supported allowing the Complainant's new claims. Those are not the present facts. The hearing and determination of the Complainant's complaint in this Commission had reached the point where statements of facts and contentions had been filed and served, discovery had been completed, affidavit material filed, the process of filing and serving outlines of argument was underway and trial dates had been set.
  1. [145]
    For these reasons, this submission by the Complainant is rejected.

The Respondent as a model litigant

  1. [146]
    The Complainant submits:
  • the Respondent is required to conduct litigation fairly and with integrity, in accordance with well-established legal principles and model litigant obligations;
  • many of the matters raised in this application could have been resolved between the parties, rather than the Respondent directly approaching the Commission seeking an urgent mention; and
  • these issues ought to be noted and taken into account when determining procedural matters, costs, and the appropriate resolution of the case.[83]
  1. [147]
    This submission is not meritorious.
  1. [148]
    The model litigant principles do not require the State of Queensland to put itself in a position where it defends a matter without being put on fair notice of the case it has to meet.
  1. [149]
    Furthermore, the Complainant's submission that many of the matters raised in this application could have been resolved between the parties, rather than by the Respondent directly approaching the Commission seeking an urgent mention, cannot be accepted.
  1. [150]
    Given the point the proceedings had reached, any new claims the Complainant wanted to advance before this Commission is not to be determined by any agreement between her and the Respondent. Such a matter is determined by the Commission in the exercise of its discretion pursuant to s 178 of the AD Act.

Paragraph 36 of the Complainant's submissions

  1. [151]
    The Complainant submits:
  1. [36]
    The Complainant is of the belief that a number of matters raised in the facts give rise to allegations of further instances of failures under section 58 of the HR Act. The Complainant would like to highlight this should your Honour think it appropriate to apply this section to other matters in the Complaint.
  1. [152]
    I will not accept such a general submission or claim.  The Complainant has had every opportunity to particularise any proposed amendment to her complaint.

Weighing the material considerations

  1. [153]
    I weigh the material considerations in the following way in respect of whether or not I will exercise the discretion under s 178 of the AD Act in favour of the Complainant.
  1. [154]
    The first consideration is that the six new claims, by their substance, are in fact new claims. The fact that the two decisions the subject of the first and second existing claims are also the subject of the first, third, fourth, fifth and sixth new claims does not transform their character. That is, that commonality does not mean those new claims merely clarify, expand upon, elaborate upon or refine the first and second existing claims. The second new claim, while it involves Ms Graham who is involved in the third and fourth existing claims, concerns different alleged conduct by Ms Graham. The six new claims are discrete new claims in addition to the existing claims contained in the Complainant's contentions. This consideration is against the exercise of the discretion under s 178 of the AD Act in favour of the Complainant.
  1. [155]
    This is then coupled with the second consideration against exercising the discretion, namely, that having regard to the case management history of the Complainant's complaint after it was referred to this Commission by the QHRC, the Complainant has advanced no adequate explanation as to why she did not make the six new claims prior to January 2025.  
  1. [156]
    The third consideration against exercising my discretion is that there will be prejudice to the Respondent if I allowed the Complainant, at this advanced stage of the proceedings, to amend her complaint so that it is different to that as presently particularised in her contentions. The fact that the Respondent may have been aware of some of the factual matters that underpin the six new claims is not a meritorious reason to allow the Complainant to so amend her complaint. Procedural fairness requires that the Respondent be put on notice about the material facts and contentions upon which the Complainant contends there has been a contravention of the AD Act or that there has been an unreasonable limitation of any human right under the HR Act, or that there has been a failure to give proper consideration to a human right under the HR Act. The Respondent will be required to respond to, and prepare for, a different case if I allowed the Complainant to now amend her complaint. While I acknowledge that a purpose of the AD Act is that everyone should have the right to equal protection under the law, it is in the public interest that parties participate expeditiously in proceedings.
  1. [157]
    The fourth consideration is that, other than in respect of the Complainant's fourth new claim, the new claims are either weak or difficult to assess as to their prospects of success because the submissions made are vague or material aspects of the new claims are not addressed. Even in respect of the fourth new claim, the other material considerations, namely, that it is an entirely new claim for which no adequate explanation has been given for its delay and its contribution to the overall prejudice to the Respondent, outweigh my assessment that it is at least arguable.
  1. [158]
    Having regard to all these considerations, I am not persuaded that I should exercise my discretion under s 178 of the AD Act and allow the Complainant to amend her complaint.
  1. [159]
    The overall purpose of the Rules, of the just and expeditious disposition of the Commission's business at a minimum of expense, would not be met by allowing the Complainant to amend her complaint in these circumstances.

Conclusion

  1. [160]
    For the reasons I have given, I am not persuaded that I should allow the Complainant to amend her complaint to include the six new claims. I will reserve the issue of the costs of the Complainant's amendment application.
  1. [161]
    I will make further Directions Orders for the hearing and determination of the Complainant's existing claims.

Orders

  1. [162]
    I make the following orders:
  1. The Complainant's application in existing proceedings, filed on 26 February 2025, is dismissed.
  1. The costs of the Complainant's application in existing proceedings, filed on 26 February 2025, are reserved.

Footnotes

[1] [2024] QIRC 120 ('Fellows No. 1').

[2] Fellows No. 1 (n 1), [25]-[93].

[3] Within the meaning of s 10 of the Anti-Discrimination Act 1991.

[4] Namely, bipolar affective disorder and adjustment disorder/reactive anxiety disorder.

[5] Discrimination in the area of the administration of State laws and programs.

[6] Paragraphs 65 to 71 of the Complainant's contentions. The Respondent correctly notes that there is no express allegation of an unreasonable limitation of her human right under s 25 of the HR Act and that s 25 of the HR Act is only referred to in the heading to paragraphs [65] to [71] of the Complainant's contentions.

[7] Discrimination in the work area by treating a worker unfavourably in anyway in connection with work.

[8] Paragraphs 72 to 85 of the Complainant's contentions.

[9] Paragraph 87 of the Complainant's contentions.

[10] Paragraph 95 of the Complainant's contentions.

[11] The Complainant's outline of argument filed on 20 January 2025 ('the Complainant's outline'), paras. 44-49.

[12] The text underlined is the red text referred to by the Complainant.

[13] The Complainant's submissions filed on 24 February 2025 ('the Complainant's submissions') , para. 10, citing Bond v State of Queensland & Anor [2019] QCATA 60, [58]-[63] (Member Fitzpatrick, Judge Allen QC, Deputy President at [1] agreeing).

[14] The Respondent's submissions filed on 26 March 2025 ('the Respondent's submissions'), para. 42.

[15] Citing Bond v State of Queensland & Ors (No. 2) [2020] QIRC 078 ('Bond'), [20], [24] and [25].

[16] [2009] HCA 27; (2009) 239 CLR 175 ('Aon').

[17] (1988) 17 NSWLR 71.

[18] [2002] ICQ 44; (2002) 171 QGIG 93.

[19] The Respondent's submissions, paras. 43-51.

[20] The Respondent's submissions, para. 52.

[21] [2022] QCAT 272 ('ST').

[22] ST (n 21), [30]-[32] (Member Roney QC).

[23] Ibid [65], relevantly referred to as the 'First Discrimination Event' and the 'Second Discrimination Event.'

[24] Ibid [77]-[85] and [87] in respect of the First Discrimination Event and [88]-[92] in respect of the Second Discrimination Event.

[25] Ibid [86] in respect of the First Discrimination Event and [93] in respect of the Second Discrimination Event.

[26] Ibid [84] in respect of the First Discrimination Event and [94] in respect of the Second Discrimination Event.

[27] [2021] QIRC 289.

[28] Bond (n 15).

[29] Citing Aon (n 16) [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[30] Citing UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77, [38] ((Kiefel CJ, Bell and Keane JJ).

[31] Citing Aon (n 16) [30] (French CJ).

[32] [2011] QSC 42.

[33] Macquarie Dictionary (17th ed, 2017) 'claim' (def 6). In Kelsey v Logan City Council and Ors (No 2) [2022] ICQ 013, Davis J, President said of s 539(d) of the Industrial Relations Act 2016 (citations omitted):

  1. [46]The object of the exercise of judicial discretion is to do justice between the parties, although relevant factors may include public considerations.
  2. [47]The term “fair and just” must compel the taking into account of the interest of all parties. The legislative intention is that all interests must be balanced in exercise of judgment to determine whether it is “fair and just” to allow the amendment.

[34] The Complainant's submissions, paras. 43-44.

[35] The Complainant's submissions, paras. 45.

[36] The Respondent's submissions, paras. 12-16.

[37] [2017] ICQ 004.

[38] Citations omitted.

[39] Emphasis added.

[40] Industrial Relations Act 2016, s 447(1)(p).

[41] See e.g. Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339 [37]-[38] and [49]-[57] (Katzmann J).

[42] The Respondent's submissions, para. 17.

[43] The Respondent's submissions, para. 17.

[44] The Respondent's submissions, paras. 28-31.

[45] The affidavit of Ms Joanne Edwards was filed on 11 October 2024.

[46] The Respondent's submissions, para. 20. The Respondent, in this respect, incorrectly referred to the Complainant's third new claim.

[47] The Complainant's submissions, para. 27.

[48] The Complainant's submissions, para. 29.

[49] [2023] QSC 95 ('Austin BMI').

[50] The Respondent's submissions, para. 17.

[51] The Complainant's submissions, para. 43.

[52] Actually, this correspondence from the QHRC to the Department, the OIR and the OWHSP was dated 29 September 2022.

[53] The Complainant's submissions, para. 44.

[54] The Complainant's submissions, para. 45.

[55] The Complainant's outline, paras. 21-22.

[56] The Complainant's outline, paras. 30-33.

[57] The Complainant's outline, paras. 34-43.

[58] The Complainant's outline, paras. 44-56.

[59] The Complainant's outline, paras. 57-58.

[60] The Complainant's outline, para. 63.

[61] Industrial Relations Act 2016 s 429.

[62] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33, [47] (Kiefel CJ, Bell, Gageler and Keane JJ).

[63] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, [38] (Gleeson CJ) and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, [36] (Kiefel, Bell and Keane JJ) and [57] (Gageler and Gordon JJ).

[64] See Goadsby v Harness Racing New South Wales [2025] NSWSC 355, [34] (Stern J).

[65] Aon (n 16).

[66] The Complainant's outline, paras. 21-22.

[67] Workers' Compensation and Rehabilitation Act 2003, s 131.

[68] The Complainant's outline, paras. 32-33.

[69] The Complainant's outline, para. 43. Section 124 of the AD Act relevantly provides:

  1. 124
    Unnecessary information
  2. (1)A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
  3. …
  4. (3)It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

[70] The Complainant's submissions, paras. 34-35.

[71] Owen-D'Arcy v Chief Executive Queensland Corrective Services [2021] QSC 273; (2021) 9 QR 250, [137] (Martin J), citing Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141, [185]-[186] (Emerton J).

[72] The Complainant's outline, paras. 52 and 55.

[73] Austin BMI (n 49).

[74] The Complainant's submissions, para. 37.

[75] Austin BMI (n 49).

[76] The Complainant's outline, para. 57.

[77] Austin BMI (n 49).

[78] Section 24 of the Human Rights Act 2019 provides:

  1. 24
    Property rights
  2. (1)All persons have the right to own property alone or in association with others.
  3. (2) A person must not be arbitrarily deprived of the person’s property.
  4. See also Austin BMI (n 49), [333].

[79] Section 131 of the Workers' Compensation and Rehabilitation Act 2003, relevantly provides:

  1. 131
    Time for applying
  2. (1)An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury arises.
  3. …
  4. (5)Also, an insurer may waive subsection (1) for a particular application if–
  5. (a)it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
  6. (b)the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
  7. (6)An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to–
  8. (a)mistake; or
  9. (b)the claimant’s absence from the State; or
  10. (c)a reasonable cause.

[80] In Austin BMI (n 49), it was held that arbitrariness in this context means capricious, unpredictable or unjust and also unreasonable in the sense of not being proportionate to a legitimate aim sought (Freeburn J, [333] n 291).

[81] The Complainant's submissions, para. 16.

[82] ST (n 21).

[83] The Complainant's submissions, para. 9.

Close

Editorial Notes

  • Published Case Name:

    Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor)

  • Shortened Case Name:

    Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor)

  • MNC:

    [2025] QIRC 107

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    29 Apr 2025

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) 239 CLR 175
3 citations
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Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
2 citations
Jump To
Cite 1 - (2009) HCA 27
Cite 2 - (2009) HCA 27
Austin BMI Pty Ltd v Deputy Premier(2023) 16 QR 377; [2023] QSC 95
2 citations
Jump To
Cite 1 - [2023] QSC 95
Cite 2 - [2023] QSC 95
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
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Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Body Corporate for Sun City Resort v Sunland Constructions Pty Ltd (No 2) [2011] QSC 42
2 citations
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Cite 1 - [2011] QSC 42
Cite 2 - [2011] QSC 42
Bond v State of Queensland & Anor [2019] QCATA 60
2 citations
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Cite 2 - [2019] QCATA 60
Bond v State of Queensland (No. 2) [2020] QIRC 78
2 citations
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Cite 1 - [2020] QIRC 78
Cite 2 - [2020] QIRC 78
Castles v Secretary to the Department of Justice [2010] VSC 310
2 citations
Jump To
Cite 1 - [2010] VSC 310
Cite 2 - [2010] VSC 310
Castles v Secretary, Department of Justice (2010) 28 VR 141
2 citations
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Cite 1 - (2010) 28 VR 141
Cite 2 - (2010) 28 VR 141
Cousins Securities Pty Ltd v CEC Group Ltd[2007] 2 Qd R 520; [2007] QCA 192
1 citation
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Cite 1 - [2007] 2 Qd R 520
David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459
1 citation
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Cite 1 - [2010] QCAT 459
Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120
2 citations
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Cite 1 - [2024] QIRC 120
Cite 2 - [2024] QIRC 120
Goadsby v Harness Racing New South Wales [2025] NSWSC 355
2 citations
Jump To
Cite 1 - [2025] NSWSC 355
Cite 2 - [2025] NSWSC 355
Gough v State of Queensland [2013] QCAT 320
1 citation
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Cite 1 - [2013] QCAT 320
Hartnett v Hynes [2009] QSC 225
1 citation
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Cite 1 - [2009] QSC 225
Holcombe v Coulton (1988) 17 NSWLR 71
2 citations
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Cite 1 - (1988) 17 NSWLR 71
Cite 2 - (1988) 17 NSWLR 71
Kelsey v Logan City Council (No 2) [2022] ICQ 13
2 citations
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Cite 1 - [2022] ICQ 13
Cite 2 - [2022] ICQ 13
Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289
2 citations
Jump To
Cite 1 - [2021] QIRC 289
Cite 2 - [2021] QIRC 289
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
2 citations
Jump To
Cite 1 - (2015) 256 CLR 326
Cite 2 - (2015) 256 CLR 326
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
2 citations
Jump To
Cite 1 - [2015] HCA 40
Cite 2 - [2015] HCA 40
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
MM v State of Queensland [2014] QCAT 478
1 citation
Jump To
Cite 1 - [2014] QCAT 478
Murrays Australia Limited v Training Recognition Council & Ors; Anthony & Ors v Training Recognition Council & Anor [2002] ICQ 44
2 citations
Jump To
Cite 1 - [2002] ICQ 44
Cite 2 - [2002] ICQ 44
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
2 citations
Jump To
Cite 1 - [2021] HCA 2
Cite 2 - [2021] HCA 2
Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd (2021) 272 CLR 33
2 citations
Jump To
Cite 1 - (2021) 272 CLR 33
Cite 2 - (2021) 272 CLR 33
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
4 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Cite 3 - (2021) 9 QR 250
Cite 4 - (2021) 9 QR 250
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
2 citations
Jump To
Cite 1 - [2003] HCA 6
Cite 2 - [2003] HCA 6
Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339
2 citations
Jump To
Cite 1 - [2025] FCA 339
Cite 2 - [2025] FCA 339
ST v Metro South Hospital and Health Service [2022] QCAT 272
2 citations
Jump To
Cite 1 - [2022] QCAT 272
Cite 2 - [2022] QCAT 272
UBS AG v Tyne [2018] HCA 45
2 citations
Jump To
Cite 1 - [2018] HCA 45
Cite 2 - [2018] HCA 45
UBS AG v Tyne (2018) 265 CLR 77
2 citations
Jump To
Cite 1 - (2018) 265 CLR 77
Cite 2 - (2018) 265 CLR 77
Wilson v Lawson [2008] QADT 27
1 citation
Jump To
Cite 1 - [2008] QADT 27

Cases Citing

Case NameFull CitationFrequency
Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) (No. 2) [2025] QIRC 1122 citations
1

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