Plumb v Rockhampton Regional Council (No. 2)
[2025] QIRC 150
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- Plumb v Rockhampton Regional Council (No. 2)[2025] QIRC 150
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Plumb v Rockhampton Regional Council (No. 2)[2025] QIRC 150
Plumb v Rockhampton Regional Council (No. 2)[2025] QIRC 150
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Plumb v Rockhampton Regional Council (No. 2) [2025] QIRC 150 |
PARTIES: | Plumb, Jason (Applicant) v Rockhampton Regional Council (Respondent) |
CASE NO.: | TD/2021/97 |
PROCEEDING: | Application in existing proceedings |
DATE OF HEARING: | 23 May 2025 |
DELIVERED ON: | 23 May 2025 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane (via telephone) |
ORDERS: | The orders contained in paragraph [31] of these reasons for decision. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – SETTING ASIDE AND OTHER RELIEF – Applicant was employed by the Respondent and was dismissed on 5 October 2021 – on 11 November 2021, the Applicant applied to the Queensland Industrial Relations Commission for reinstatement under the Industrial Relations Act 2016 – Applicant's application the subject of a conciliation conference – conciliation certificate issued on 23 December 2021 – no other step taken by the Applicant until 23 February 2024 when the Applicant, in effect, applied under r 230 of the Industrial Relations (Tribunals) Rules 2011 for an order to take further action – matter set down for hearing as to whether the Commission, pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011, would order the Applicant to take further action – Applicant requested attendance notices to be issued for five persons for the production of documents and to give evidence – five attendance notices issued – Respondent applied to set aside the attendance notices – Respondent also applied to stay the attendance notices pending determination by the Commission about its application to set aside the attendance notices – whether the Commission has power to stay the attendance notices pending the determination of the application to set aside the attendance notices – the Commission has power to stay the attendance notices pending the determination of the application to set aside the attendance notices because such power is incidental to the power to set aside the attendance notices – arguable case to set aside the attendance notices – balance of convenience favours granting stays of the attendance notices – substantive hearing date adjourned |
LEGISLATION: | Industrial Relations Act 2016, s 447, s 451, and s 536 Industrial Relations (Tribunals) Rules 2011, r 41, r 61 and r 230 |
CASES: | Plumb v Rockhampton Regional Council [2024] QIRC 094 Re: Applications to vary the Building. Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064 |
APPEARANCES: | The Applicant appeared on his own behalf Mr B. Dwyer of McCullough Robertson for the Respondent and Mr D. Morrison of the Respondent Mr E. Pardon appeared on his own behalf Mr R. Cheesman appeared on his own behalf Mr P. Kofod appeared on his own behalf Mr T. Pegrem appeared on his own behalf |
Reasons for Decision
Delivered ex tempore, revised from transcript
Introduction
- [1]These reasons assume familiarity with my earlier decision in this matter in Plumb v Rockhampton Regional Council ('Plumb No.1').[1] Unless otherwise stated, the definitions I used in Plumb No.1 are used in these reasons.
- [2]The background to the present matter is set out in paragraphs [1]-[4] of Plumb No. 1.
- [3]The hearing of Dr Plumb's application, pursuant to r 230 of the Rules, for an order that the Commission allow him to take further action in respect of his reinstatement application filed in 2021, is scheduled for Thursday, 29 May 2025. That hearing date was set following the mention of the matter on 14 March 2025. The parties, pursuant to an earlier Directions Order, have filed and served affidavit material and written submissions.
- [4]By applications filed on 15 May 2025, Dr Plumb requested the issuing of attendance notices for production and to give evidence directed to four current employees of the Council. Those attendance notices were issued on 19 May 2025. By application filed on 19 May 2025, Dr Plumb requested the issuing of an attendance notice for production and to give evidence directed to the Mayor of the Council. That attendance notice was issued on 20 May 2025. I will refer to all of these as 'the five issued attendance notices'.
- [5]By application filed on 20 May 2025, the Council, pursuant to r 61 of the Rules, applied for orders that the five issued attendance notices be set aside ('the Council's application').
- [6]As part of that application, the Council gave grounds for its objections to the five issued attendance notices. The Council's grounds of objection are:
- that the documents sought, and the evidence Dr Plumb indicates he intends to adduce from each witness, are not directly relevant to his application pursuant to r 230 of the Rules;
- that the five issued attendance notices lack sufficient particulars as to the documents sought; and
- that the issued attendance notice in respect of the Mayor of the Council is oppressive.
- [7]By its application, the Council also seeks an order that the five issued attendance notices be stayed pending the determination of its objections to the five issued attendance notices.
- [8]However, subsequently, on 21 and 22 May 2025, each of the five persons to whom the issued attendance notices to produce and to give evidence were directed, filed written objections to the attendance notice directed to them. In each of those written objections, each of the five persons stated that they fully supported the grounds of objection set out by the Council in its application.
- [9]I will now briefly deal with part 2, div 2, sub-div 7 of the Rules.
Part 2, div 2, sub-div 7 of the Industrial Relations (Tribunals) Rules 2011
- [10]Dr Plumb applied for the attendance notices to be issued pursuant to pt 2, div 2, sub-div 7 of the Rules. The five persons to whom the attendance notices are directed are not parties to the present proceeding.
- [11]In so far as the five issued attendance notices require production of stated documents, the persons to whom the notices were directed, were directed to produce the stated documents on the day of the hearing, being 29 May 2025. The applications made to request the issuing of the attendance notices did not provide for the relevant persons to produce the documents, not less than two business days before the day production was required, at the Industrial Registry. In this regard I refer to r 63 of the Rules.
- [12]As referred to above, each of the persons to whom the five issued attendance notices were directed, have given the Registrar notices of objection and they each have adopted the grounds of objection contained in the notice of objection given to the Registrar by the Council. The Council is the respondent to the present proceeding.
- [13]I take it that, having regard to the form of the notices of objection, each of the persons to whom the five issued attendance notices were directed apply for the attendance notices to be set aside.
- [14]The Commission has power, pursuant to r 61 of the Rules, to set aside part or all of an attendance notice.
Does the Commission have power to stay the operation of the five issued attendance notices?
- [15]Each of the five persons to whom the five issued attendance notices were directed, seek a stay of the operation of the attendance notices until their application to set aside the attendance notices, namely their objections, are heard and determined.
- [16]I record that yesterday the Commission received correspondence from the Mayor of the Council in respect of which he sought leave to be excused from today's hearing because he was required to attend a Special Council Meeting. Dr Plumb raised no objection to the Mayor being excused from today’s hearing. However, by that same correspondence the Mayor also indicated that he sought a stay of the attendance notice directed to him.
- [17]The parties were invited to address the Commission in respect of the power of the Commission to stay the attendance notices. The Council submitted that the Commission has such power pursuant to s 536(f) and (g) of the IR Act and also pursuant to r 41 of the Rules.
- [18]In my view, the Commission has power to stay the operation of the five issued attendance notices and whilst not rejecting the submissions made by the Council, the more direct source of that power is s 451(1) of the IR Act.
- [19]That section provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. The Commission's functions are set out in section 447 of the IR Act. That section does not exhaustively define all of the Commission's functions.
- [20]One of the functions conferred on the Commission, pursuant to pt 2, div 2, sub-div 7 of the Rules, is to issue attendance notices to persons upon request. As stated earlier, pursuant to r 61 of the Rules, the Commission has power to set aside part or all of an attendance notice that has been issued upon objection being taken by the person to whom the attendance notice was directed.
- [21]In Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016,[2] I dealt with the construction of s 451(1) of the IR Act. In that regard I relevantly stated (citations omitted):
[44] However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s 451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall, Kiefel CJ and Gageler and Keane JJ relevantly stated:
[33]The power conferred on a representative body by s 203BK(1) in the familiar terms of a power "to do all things necessary or convenient to be done for or in connection with the performance of its functions", though "broad", is "strictly ancillary", authorising "the provision of subsidiary means of carrying into effect what is enacted in the statute itself" and encompassing "what is incidental to the execution of its specific provisions". The power does "not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred".
[45] Later, their Honours stated:
A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental.
- [22]As set out earlier, pursuant to r 61 of the Rules, the Commission has power to set aside part or all of an attendance notice upon objection being taken to the issuing of an attendance notice. In my view, it is incidental to the Commission's power to set aside part or all of an attendance notice, to stay the operation of the attendance notice pending the determination by the Commission about the objection made to it by the person to whom it is directed, and the necessary determination by the Commission about whether or not part or all of the attendance notice will be set aside.
- [23]That such a power is incidental is obvious when regard is had to the circumstances such as those in the present case, namely, where requests for attendance notices to produce documents and to give evidence are made in close proximity to the relevant hearing date, and where objection is then taken by the persons to whom the issued attendance notices are directed, being objections that must be resolved prior to the substantive hearing.
Should the Commission stay the operation of the five issued attendance notices?
- [24]As I discussed with the parties, it seems to me that the hearing of Dr Plumb’s r 230 matter next Thursday, 29 May 2025 needs to be adjourned to allow for submissions to be made by the parties about the objections to the attendance notices and for me to make a properly informed decision about whether the attendance notices should be set aside. There is a question about whether a stay is necessary in those circumstances. However, as an abundance of caution I will grant the stays as sought by the objectors. In my view, there are compelling reasons why I should exercise my discretion and stay the operation of the five issued attendance notices pending my determination about the objections made to them.
- [25]First, having regard to the description of the documents sought to be produced and, where relevant, the description of the evidence to be given by each person to whom the attendance notices are directed, it seems to me that there is a prima facie case that the documents sought to be produced and, where relevant, the evidence sought to be given, may not be relevant to the issues I have to determine in respect of whether to make an order, pursuant to r 230(2) of the Rules, to allow Dr Plumb to take further action in respect of his 2021 application.
- [26]Secondly, the balance of convenience favours the granting of a stay. The hearing is set for Thursday next week. As I have indicated, I will need to hear from the parties who have objected to the attendance notices but also from Dr Plumb and the Council. I will not be able to give those relevant persons a proper opportunity to be heard about the objections, and to then make a decision, prior to Thursday of next week.
- [27]In addition there is the convenience of the staying of the notices and if the stays are lifted and the notices are not set aside, then that will avoid Dr Plumb having to apply to reissue the attendance notices in respect of the resumed hearing date.
- [28]For these reasons, I will stay the operation of the five issued attendance notices until further order of the Commission.
- [29]There is of course the other matter that I have raised and that is the adjournment of the hearing next Thursday. For the reasons I have given, I will vacate that hearing date and it will be adjourned to a date to be fixed.
Conclusion
- [30]For the reasons I have given:
- I will stay the operation of the five issued attendance notices pending my determination as to whether or not I will set them aside; and
- the hearing of Dr Plumb's application pursuant to r 230 of the Rules listed for Thursday, 29 May 2025, is vacated, and it will be listed for hearing on a date to be fixed.
Orders
- [31]I make the following orders:
- The operation of the attendance notice for production and to give evidence issued on 20 May 2025 to Cr Tony Williams, Mayor, Rockhampton Regional Council, in Matter No. TD/2021/97, is stayed pending further order of the Commission.
- The operation of the attendance notice for production and to give evidence issued on 19 May 2025 to Mr Evan Pardon, Chief Executive Officer, Rockhampton Regional Council, in Matter No. TD/2021/97, is stayed pending further order of the Commission.
- The operation of the attendance notice for production and to give evidence issued on 19 May 2025 to Mr Ross Cheesman, Deputy Chief Executive Officer, Rockhampton Regional Council, in Matter No. TD/2021/97, is stayed pending further order of the Commission.
- The operation of the attendance notice for production and to give evidence issued on 19 May 2025 to Mr Peter Kofod, General Manager, Regional Services, Rockhampton Regional Council, in Matter No. TD/2021/97, is stayed pending further order of the Commission.
- The operation of the attendance notice for production and to give evidence issued on 19 May 2025 to Mr Travis Pegrem, Coordinator People and Capability, Rockhampton Regional Council, in Matter No. TD/2021/97, is stayed pending further order of the Commission.
- The hearing of the Applicant's application, pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 in Matter No. TD/2021/97, listed for Thursday, 29 May 2025, is vacated to be further listed for hearing on a date to be fixed.