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  4. Plumb v Rockhampton Regional Council (No. 3) - [2025] QIRC 189

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Plumb v Rockhampton Regional Council (No. 3)[2025] QIRC 189

Plumb v Rockhampton Regional Council (No. 3)[2025] QIRC 189

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Plumb v Rockhampton Regional Council (No. 3) [2025] QIRC 189

PARTIES:

Plumb, Jason

(Applicant)

v

Rockhampton Regional Council

(Respondent)

CASE NO.:

TD/2021/97

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

24 July 2025

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [98] 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 action taken by the Applicant in respect of his application for reinstatement until 23 February 2024 when the Applicant applied to re-open his application for reinstatement –  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 in respect of his reinstatement application – Applicant requested attendance notices to be issued for five persons for the production of documents and to give evidence at the hearing – five attendance notices issued – applications to set aside the five attendance notices – principles in respect of the setting aside of attendance notices – whether five attendance notices should be set aside – five attendance notices set aside

LEGISLATION:

Industrial Relations Act 2016, s 317, s 318, s 484 and s 922

Industrial Relations (Tribunals) Rules 2011, r 6, r 59, r 61 and r 230

Uniform Civil Procedure Rules 1999, r 389, r 415 and r 416

Rules of the Supreme Court, O. 90, r 9

CASES:

Artahs Pty Ltd v Gall Stanfield & Smith (A Firm) [2011] QSC 273

Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Cooper v Hopgood and Ganim [1998] QCA 114; [1998] 2 Qd R 113

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

Kieoskie v Workers' Compensation Board of Queensland (Queensland Court of Appeal, 15 September 1992)

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619

McColl v Lehmann [1987] VR 503

McEwan v Rains [2023] QCA 135; (2023) 15 QR 251

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors [2023] QSC 282

Plumb v Rockhampton Regional Council (No. 2) [2025] QIRC 150

Plumb v Rockhampton Regional Council [2025] QIRC 176

Sharples v Workers' Compensation Regulator [2020] ICQ 020

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710

State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 010

St Francis Xavier Cabrini Hospital Governing Board Inc v Micallef [2000] VSC 19

Westsand Pty Ltd v Johnson [1999] QSC 337

Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323

Reasons for Decision

Introduction

  1. [1]
    Dr Jason Plumb was employed by the Rockhampton Regional Council ('the Council') in the position of Manager Fitzroy River Water. On 5 October 2021, Dr Plumb was dismissed from that position. By application filed on 11 November 2021, Dr Plumb applied to this Commission for reinstatement. That application was given case number TD/2021/97.
  2. [2]
    A conciliation conference between the parties was held before Industrial Commissioner McLennan on 22 December 2021 following which on 23 December 2021, pursuant to s 318(3)(a) of the Industrial Relations Act 2016 ('the IR Act'), a certificate was issued.
  1. [3]
    On 23 February 2024, Dr Plumb filed a General Application in which he stated that the decision sought was:

I wish to make a Public Interest Disclosure about alleged wrongdoing and have the matter TD97[2021] re-opened so that it can be reconsidered appropriately according to the Industrial Relations Act and the Human Rights Act and other relevant legislation.

  1. [4]
    That application was purportedly made pursuant to s 484 of the IR Act. In a mention of that application on 20 March 2024, I indicated to the parties that it appeared to me that it was in fact an application by Dr Plumb to take further action, pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), in relation to his 2021 application for reinstatement ('Dr Plumb's r 230 application').
  2. [5]
    Pursuant to Directions Orders I have made, Dr Plumb[1] and the Council[2] have filed and served material in respect of Dr Plumb's r 230 application. Following another mention of Dr Plumb's r 230 application on 14 March 2025, the hearing of that application was set down for 29 May 2025.
  1. [6]
    By applications filed on 15 and 19 May 2025, Dr Plumb requested the issuing of attendance notices for production and to give evidence directed to the current Mayor of the Council and to four current employees of the Council. All five attendance notices were issued (collectively 'the five attendance notices'). The five attendance notices were served.
  1. [7]
    By application filed on 20 May 2025, the Council, pursuant to r 61 of the Rules, applied for orders that the five attendance notices be set aside. On 21 and 22 May 2025, the Mayor of the Council and the four current employees of the Council objected to the attendance notices served on them ('the five objecting persons'). For the reasons given in Plumb v Rockhampton Regional Council (No. 2),[3] the five attendance notices were stayed and the hearing date of Dr Plumb's r 230 application was vacated so that I could hear and determine the objections made to the five attendance notices.
  2. [8]
    The issue for my determination is whether or not the five attendance notices should be set aside.
  1. [9]
    For the reasons that follow, I will set aside the five attendance notices.

Background

  1. [10]
    To understand what happened at around the time of Dr Plumb's dismissal, it is convenient to refer to the undisputed facts, to which reference was recently made, in a decision involving Dr Plumb and the Council that concerned allegations made by Dr Plumb that the Council had engaged in certain contraventions of ch 8, pt 1 of the IR Act. In Plumb v Rockhampton Regional Council,[4] I stated (footnotes omitted):
  1. [1]
    Dr Jason Plumb was employed by the Rockhampton Regional Council in the position of Manager Fitzroy River Water ('the position'). Dr Plumb commenced employment in the position on 25 November 2008. By 2021, Dr Plumb's employment with the Council was subject to a written contract of employment which was entered into on 30 April 2021 ('the contract').
  1. [2]
    On 5 October 2021, the Council terminated Dr Plumb's employment. Dr Plumb subsequently approached the Council and sought to resign from his employment. On 7 October 2021, Dr Plumb and the Council executed a Deed of Settlement ('the Deed'). Clause 6.1(b) of the Deed provided that the Council would accept the resignation of Dr Plumb. Clause 6.2 of the Deed provided that Dr Plumb would provide a written resignation, effective 5 October 2021, and supply the resignation at the time of returning the executed Deed. By letter dated 5 October 2021, Dr Plumb provided his written resignation effective that day.
  1. [11]
    In Dr Plumb's 2021 reinstatement application, in respect of why there was a delay in making his application for reinstatement, and why he contended his dismissal was unfair, Dr Plumb, amongst other issues raised, stated:
  • after having his employment contract terminated by the Chief Executive Officer of the Council, he was '…then required to sign a deed of settlement' which indicated that officially, he had resigned, although that was clearly not the case and that he did not know '…what my rights were and was not provided assistance in this regard by Council upon my departure.';[5]
  • he believed his dismissal was in relation to concerns he was raising '…about inappropriate conduct at the highest level of the Council organisation which I suspected to be corrupt conduct' and that he '…reported these concerns to the Crime and Corruption Commission the day after I was terminated and before I signed the deed of settlement.';[6]
  • no specific reasons were provided for the termination of his contract '…other than a "coverall" statement that the "employment relationship had become untenable"';[7]
  • no specific issues had been raised with him about his performance by his General Manager or the Chief Executive Officer of the Council and he had not received a performance evaluation from his General Manager in the last two years such that he was not aware of any reasons relating to his performance that could form the basis to terminate his employment;[8]
  • he believed the Chief Executive Officer of the Council thought he (Dr Plumb) was behind an earlier demand from the relevant trade unions to apologise to staff about a decision the Chief Executive Officer made to desist with the Fitzroy River logo on Council uniforms and on Council vehicles, or that the Chief Executive Officer used his (Dr Plumb's) termination as an example to Fitzroy River staff to assert his authority;[9]
  • despite the Chief Executive Officer renewing his (Dr Plumb's) contract of employment earlier in 2021, it was not clear why the Chief Executive Officer changed his view of him '…in only a relatively short time';[10] and
  • the Chief Executive Officer may have dismissed him because of '…a number of the ongoing significant concerns that I raised to senior management including the CEO' as a means of '…trying to make these matters go away, as they had the potential to cause his [sic] problems if my complaints continued or they were actioned appropriately by a relevant authority.'[11]
  1. [12]
    The Council filed a response to Dr Plumb's reinstatement application on 25 November 2021. While the Council stated it had a jurisdictional objection to Dr Plumb's application for reinstatement (based on the fact that Dr Plumb's annual wages immediately before his dismissal was equal to or more than the high income threshold),[12] it also stated that:
  • Dr Plumb's contract was terminated because the Chief Executive Officer had determined that over a period of time, the employment relationship had deteriorated to a point where it was no longer tenable;[13]
  • Dr Plumb's contract was terminated pursuant to cl 15.2(f) of the contract of employment between Dr Plumb and the Council;[14] and
  • during discussions '…around the cessation and post cessation' Dr Plumb '…requested what remedies or other actions he could pursue', a variety of options were highlighted and Dr Plumb '…sought a Deed of Settlement'.[15]
  1. [13]
    As stated above, on 11 November 2021, Dr Plumb made his application for reinstatement to the Commission.  Having regard to s 317(2)(a) of the IR Act, Dr Plumb should have made his application for reinstatement by 26 October 2021. Dr Plumb's reinstatement application was made 16 days out of time.[16]
  1. [14]
    As referred to earlier, a conciliation conference, in respect of Dr Plumb's reinstatement application, was held on  22 December 2021 and on 23 December 2021 a certificate was issued by Industrial Commissioner McLennan.
  1. [15]
    By his General Application filed on 23 February 2024, Dr Plumb gave the following grounds for the relief he sought by that application:
  1. In June 2023 I became aware of key information via a Right To information application to the Respondent (15507), that I reasonably believe shows clearly that Rockhampton Regional Council via Travis Pegrem allegedly provided false and misleading information and deliberately omitted important information in their Employer Response that prejudiced my Application for Reinstatement TD97[2021].
  2. The Right to Information documents show clearly that the Respondent was aware of a hurriedly arranged external investigation, that they initiated while I was on two weeks annual leave prior to my termination, based on no formal complaints against me and an apparent lack of due process.
  3. The external investigation report that was delivered to the Respondent (including Mr Pegrem and other senior management) one working day before I was to return to work from annual leave, states clearly that I was not provided with any procedural fairness and yet the Respondent then knowingly failed to provide me with any opportunity to have procedural fairness and terminated my employment without any warning or awareness of any issues associated with my performance or behaviour in the completion of my role.
  4. I allege that the Respondent willfully [sic] contravened a section of the Industrial Relations Act by providing false and misleading information which contributed to depriving me of entitlement to have a fair hearing by the Industrial Relations tribunal under the Human Rights Act.
  5. I allege that the Respondents actions were not consistent with the Deed of Settlement that I was required to sign under significant duress given their actions and my mental health status as a result, an undertaking for which false and misleading information was also provided in the Employer Response they provided to my application mentioned above.
  6. I allege that the information I obtained through the Right To Information application I believe shows clearly that the Respondent willfully [sic] breached their obligations as my employer under the Certified Agreement, Industrial Relations Act, Local Government Act and Public Sector Ethics Act that require them to act with integrity and impartiality, despite the Respondent claiming to the contrary in their Employer Response submitted in relation to my Application for Reinstatement TD97[2021].
  1. The five attendance notices for production and to give evidence
  1. [16]
    The five attendance notices were directed to:
  • Cr Tony Williams, Mayor, Rockhampton Regional Council ('the Mayor' and 'the Mayor's attendance notice');
  • Mr Evan Pardon, Chief Executive Officer, Rockhampton Regional Council ('Mr Pardon' and 'Mr Pardon's attendance notice');
  • Mr Ross Cheesman, Deputy Chief Executive Officer, Rockhampton Regional Council ('Mr Cheesman' and 'Mr Cheesman's attendance notice')
  • Mr Peter Kofod, General Manager, Regional Services, Rockhampton Regional Council ('Mr Kofod' and 'Mr Kofod's attendance notice'); and
  • Mr Travis Pegrem, Coordinator People and Capability, Rockhampton Regional Council ('Mr Pegrem' and 'Mr Pegrem's attendance notice').
  1. [17]
    As stated, each of the five objecting persons filed written objections. Those objections fully supported the grounds of objections outlined by the Council in its application filed on 20 May 2025, namely:
  • 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 attendance notices lack sufficient particulars as to the documents sought; and
  • that the attendance notice in respect of the Mayor is oppressive.
  1. [18]
    By Directions Order dated 23 May 2025, I ordered that the Council and the five objecting persons file and serve written submissions in respect of their contentions that the five attendance notices should be set aside.
  1. [19]
    I further ordered that Dr Plumb should then file and serve written submissions in respect of his contention that the five attendance notices should remain on foot. In addition, I directed that unless Dr Plumb, the five objecting persons or the Council made a written request for an oral hearing in respect of the issue of whether or not the five attendance notices should be set aside, I would hear and determine the matter on the papers.
  1. [20]
    There was no request for an oral hearing.

The relevant rules and principles

  1. [21]
    Part 2, div 2, sub-div 7 of the Rules deals with attendance notices.
  1. [22]
    Relevantly, r 59 of the Rules provides:
  1. 59
    Requirements for attendance notice to produce
  1. An attendance notice requiring a person to produce a stated document or thing must–
  1. (a)
    adequately describe the document or thing; and
  1. (b)
    contain a notice, in the approved form, telling the person that the person has the right to apply to the court or commission to have the attendance notice set aside on any sufficient grounds, including, for example–
  1. (i)
    the document or thing is not directly relevant to the proceedings; or
  1. (ii)
    privilege; or
  1. (iii)
    oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or
  1. (iv)
    noncompliance with these rules.
  1. [23]
    Rule 61 provides:
  1. 61
    Setting aside attendance notice
  1. The court, commission or registrar may, by order, set aside part or all of an attendance notice.
  1. [24]
    It seems to me that some of the rules contained in pt 2, div, 2, sub-div 7 of the Rules –  relevantly to the present matter, r 59 and r 61 – bear close resemblance to r 415 and r 416 contained in ch 11, pt 4 ('Subpoenas') of the Uniform Civil Procedure Rules 1999 ('the UCPR').
  1. [25]
    Rule 415 of the UCPR relevantly provides:
  1. 415
    Formal requirements
  1. (1)
    A particular type of subpoena must be in the approved form for that type of subpoena.
  1. (2)
    A subpoena must not be directed to more than 1 person.
  1. (3)
    A subpoena must specify the person to whom it is directed by name or description of office or position.
  1. (4)
    A subpoena to give evidence must state the date, time and place for attendance.
  1. (5)
    A subpoena for production must–
  1. (a)
    identify the document or thing to be produced; and
  1. (b)
    state the date, time and place for production.
  1. (6)
    Also, a subpoena for production must bear a notice, to be set out in the approved form advising the person required to comply with it that the person has the right to apply to the court to have the subpoena set aside on any sufficient grounds, including–
  1. (a)
    want of relevance; or
  1. (b)
    privilege; or
  1. (c)
    oppressiveness, including oppressiveness because substantial expenses may not be reimbursed; or
  1. (d)
    noncompliance with these rules.
  1. (7)
    A subpoena for production and to give evidence must state the matters required to be stated in a subpoena under subrules (4), (5) and (6).
  1. [26]
    Rule 416 of the UCPR provides:
  1. 416
    Setting aside subpoena
  1. The court may make an order setting aside all or part of a subpoena.
  1. [27]
    The immediate difference is between r 59(b)(i) of the Rules and r 415(6)(a) of the UCPR. Under the Rules, the attendance notice must contain a notice telling the person that the person has the right to apply to the Commission to have the attendance notice set aside on any sufficient grounds, including, that '…the document or thing is not directly relevant to the proceedings. Under r 415(6)(a) of the UCPR, the applicable ground is '…want of relevance.' As a consequence, decisions concerning the construction of r 415(6)(a) of the UCPR[17] will not be of direct assistance in the application of r 59(b)(i) of the Rules.
  1. [28]
    However, decisions in respect of the construction of r 415(6)(b)-(d) of the UCPR, given the similar wording to r 59(b)(ii)-(iv) of the Rules, would be of assistance.
  1. [29]
    Similarly, leaving aside the ground of '…want of relevance' in r 415(6)(a) of the UCPR, the matters considered by the courts to whom r 416 of the UCPR and other similar civil procedure rules apply, in setting aside a subpoena, will be relevant in considering an application to set aside an attendance notice under r 61 of the Rules.[18]
  1. [30]
    The Council submits:
  • the Rules do not specify the grounds for the exercise of the discretion in r 61;
  • r 59 provides that a notice seeking production of a document must '…adequately describe the document', and may be objected to for a variety of reasons including that the document is '…not directly relevant to the proceedings', '…oppressiveness' and '…non-compliance' with the Rules; and
  • while those factors are directed to notices to produce, they are equally relevant to the Commission's consideration about whether to set aside a notice to attend pursuant to r 61 of the Rules.[19]
  1. [31]
    In general, the Council submits that the Commission should exercise its discretion, pursuant to r 61 of the Rules, to set aside an attendance notice for production and to give evidence, if the notice:
  • seeks to adduce evidence, whether from a witness' testimony or via documents, which is not directly relevant to a matter in issue;
  • is oppressive;
  • fails to adequately describe the documents to be produced; or
  • is otherwise non-compliant with the Rules, or some combination of those matters above.[20]
  1. [32]
    In general, I accept these submissions. There are no factors stated in r 61 of the Rules that are to be considered in respect of the discretion that may be exercised to set aside an attendance notice. Therefore, such factors must be determined by implication from the subject matter, scope and purpose of the relevant rules.[21] Rule 59(b) of the Rules sets out what must be included in an attendance notice in terms of informing the person of the grounds upon which they can apply to the Commission to have an attendance notice to produce set aside. As a consequence, such an attendance notice may be set aside on grounds that at least include those grounds.
  1. [33]
    To the extent these grounds are raised by the Council and by the five objecting persons (as set out later in these reasons) it is necessary to consider what is meant by these grounds.

Direct relevance

  1. [34]
    Evidence which is '…directly relevant to a matter in issue in the proceeding' is evidence which would tend to prove or disprove an allegation in issue in the proceedings.[22] The expression '…directly relevant to a matter in issue in the proceeding' should not be taken to mean direct evidence as opposed to circumstantial evidence and, for example, a document may not itself prove a fact in issue but it may nonetheless supply circumstantial evidence, which taken with other evidence, tends to do so.[23]
  1. [35]
    Dr Plumb has served the five attendance notices in respect of the hearing and determination of his r 230 application. Therefore, having regard to r 59(b)(i) of the Rules (which states that a sufficient ground to set aside an attendance notice to produce a document is where the '…document…is not directly relevant to the proceedings') in considering the five attendance notices to the extent they require the five objecting persons to produce a stated document, the inquiry is whether such a stated document is directly relevant to Dr Plumb's r 230 application. As a consequence, the present inquiry is not whether such a stated document is directly relevant to Dr Plumb's reinstatement application.

Oppression

  1. [36]
    An attendance notice is oppressive if it requires the recipient to spend an unreasonable amount of time and effort to assemble the material demanded,[24] or when it is too wide or lacking in particularity.[25]

Failure to adequately describe the documents

  1. [37]
    An attendance notice to produce documents must specify the documents required to be produced to the Commission with sufficient precision to enable the witness to identify the documents sought, and if it appears from the description and number of documents required that compliance will be unduly burdensome, it may be found to be oppressive.[26]
  1. [38]
    The documents required to be produced should be described in relatively clear language.[27] Further, the documents must be described with reasonable particularity,[28] such that the recipient of a subpoena is not and should not be required to consult a dictionary and then carry out an exercise in the construction of the attendance notice before embarking upon the collection of the documents.[29]
  1. [39]
    Nevertheless, a degree of generality in the description of the documents may, according to the circumstances, be compatible with reasonableness.[30] An attendance notice should not be rejected as oppressive or an abuse of process because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge.[31]An addressee is required to read the subpoena sensibly and with reference to the circumstances known to him or her.[32]

The Council's submissions

  1. [40]
    In summary, the Council submits that:
  • the notices must be directed to evidence which is directly relevant to the matters in issue in the r 230 application;
  • much of the relevant background to the r 230 application is not in issue;
  • the central issue in the r 230 application is whether Dr Plumb has adequately explained his failure to take a step in his reinstatement application for over two years;
  • the five attendance notices do not seek evidence about the r 230 application because the five attendance notices concern documents and other evidence about Dr Plumb's allegations regarding the veracity of a deed of settlement entered into with the Council, and other substantive arguments about the merits of his reinstatement application, which the Commission could not sensibly determine at this preliminary stage of his reinstatement application; and
  • as a consequence, the five attendance notices should be set aside in so far as they are directed to:
  • matters which are not in issue because they are uncontested; and
  • matters which are not directly relevant to the r 230 application, as opposed to Dr Plumb's reinstatement application.[33]
  1. [41]
    Further, the Council submits that because the five attendance notices fail to adequately explain the documents sought and that given the failure to comply with an attendance notice may constitute contempt, the vagueness of the attendance notices is highly prejudicial to the five persons to whom they were directed.[34]
  1. [42]
    The Council made further submissions about why each of the five attendance notices should be set aside that went to specific issues uniquely concerned with each of the five attendance notices.[35] I will refer to those submissions later in these reasons.

The submissions of the five objecting persons 

  1. [43]
    Each of the five objecting persons made submissions in respect of their contention that the attendance notice, served on them, be set aside. There is some commonality about the basis upon which they submit that the five attendance notices should be set aside.
  1. [44]
    In summary, the common submissions are:
  • the attendance notices do not adequately identify the document or documents that the objecting person is expected to identify and produce at pain of penalty under the Rules;[36]
  • the attendance notices, as drafted, seek the production of non-specific documents, which even if they could be identified, do not prima facie appear to have any direct relevance to the matters the Commission must determine in connection with Dr Plumb's r 230 application; that is, the attendance notices lack any specific forensic purpose;[37]
  • the attendance notices are oppressive, given their lack of specificity or relevance, in that they will impact upon their already high-level workload and impact upon their ability, in their respective positions on and in the Council, to properly, faithfully and efficiently discharge their duties and obligations to the ratepayers of the Council;[38]
  • any documents that might be capable of being caught by the broad fishing net cast by the five attendance notices, are not documents that they personally have the unfettered power to immediately provide in their individual capacity, as they are documents of the Council and, as such, would require the authorisation of the Council to provide;[39]
  • the documents required for production, which are incapable of being identified in the five attendance notices, must tend to directly disprove or prove an allegation in issue, which must be viewed in the context of the r 230 application, and the attendance notices do not, on their face, satisfy that test;[40]
  • the attendance notices suffer from a lack of particularity in that they do not comply with r 59(a) of the Rules and are otherwise too wide such that:
  • it is not possible to discern either the specific document sought, the class or type of documents or the relevance of such to a determination of the r 230 application; and
  • as non-parties, they are at risk of penalties, including a finding of contempt under s 922 of the IR Act for non-compliance and, therefore, it is not fair that they should be required for any of the reasons, as set out above, to comply with the attendance notices;[41] and
  • the documents sought, which are not discernible are, if capable of being discerned, documents that are in the possession, custody and control of the Council and any notices for production of documents should have been addressed to the Council.[42]
  1. [45]
    In respect of the issues referred to in the last dot point immediately above:
  • the Mayor, Mr Pardon and Mr Cheesman submitted that they did not have an unfettered personal and enforceable right to access and deliver up the documents to another person without a resolution of the Council;[43] and
  • Mr Kofod and Mr Pegrem submitted that they did not have an enforceable right to access and deliver the documents to another person.[44]
  1. [46]
    Each of the five persons to whom the five notices were directed submitted that in respect to any evidence they may give about Dr Plumb's termination of employment, it is not evidence that is relevant to an assessment of the application of r 230 of the Rules, and in respect of the issue of relevance, they adopted the written submissions made by the Council on that issue.[45]
  1. [47]
    In respect of the attendance notice directed to him, Mr Pegrem submitted that the Deed referred to in that notice is already available to Dr Plumb and to the Commission, as are the minutes of the meeting of the Council that authorised the delegated authority levels to the Chief Executive Officer, as they were produced in his affidavit filed on 16 September 2024 in respect of Dr Plumb's r 230 application.[46] The Mayor, Mr Pardon, Mr Cheesman and Mr Kofod made the same point in their submissions.[47]
  1. [48]
    In fact, Mr Cheesman submitted that he did not execute the Deed as alleged by Dr Plumb and was only a witness to its execution.[48]
  1. [49]
    Each of the five objecting persons submitted that the attendance notices should be set aside.[49]

Dr Plumb's submissions

  1. [50]
    Dr Plumb submitted that as there are no valid grounds for the five objecting persons to be excused from being compelled to attend and produce the documents sought at the upcoming hearing, the attendance notices should remain in effect.[50]
  1. [51]
    In support of that outcome, Dr Plumb made a number of submissions.

Paragraphs 1 to 12 of Dr Plumb's submissions

  1. [52]
    Dr Plumb submits that at the substantive hearing of his r 230 application, he intends to demonstrate that r 230 of the Rules does not apply to his reinstatement application. This is said to be so because, between late 2021 and early 2024, he has taken '…numerous actions…in relation to this application'[51] being action he has described in his affidavit filed on 12 June 2025.[52] Dr Plumb particularises those actions, namely:
  • actions and interactions he has had with officers of the Crime and Corruption Commission ('the CCC action'), and with officers and elected representatives of the Council ('the Council action') between late 2021 and late 2023 regarding a public interest disclosure complaint made in relation to his '…alleged Unfair Dismissal on 5 October 2021';
  • documents he received in 2023 in respect of right to information requests regarding a public interest disclosure complaint he made in respect of his '…alleged Unfair Dismissal on 5 October 2021' ('the right to information action'); and
  • a 2023 public interest disclosure complaint made to the Department of '…local government' and a 2024 public interest disclosure complaint made to the Queensland Ombudsman in relation to his '…alleged Unfair Dismissal on 5 October 2021' ('the Departmental and Ombudsman actions').[53]
  1. [53]
    After referring to the above matters, Dr Plumb then submits:.
  1. It is implicit in the wording of Rule 230 that it contemplates that there are potentially very real reasons why steps may not be taken in an application due to the undertaking or completion of other related actions that may then enable recommencement of actions in the application and I will present at the upcoming hearing a very real example of how this has occurred.
  1. Your Honour, the objections received from the Respondent and the named recipients of notices to attend and produce ("named recipients") are truly extraordinary given the flimsiness of the arguments they have posed and I will not attempt to sink the depths of all the ambit claims they have made, but will instead focus on what is expected of officers and elected representatives (all employees) of a unit of public administration, in this instance a local government in line with their obligations under their own policies, procedures and prevailing legislation.

…

  1. Furthermore, each of the named recipients had or are alleged, often by the statements of their own colleagues, to have had direct involvement in key events that have contributed to the delays associated with progressing this matter or have had direct involvement in the numerous actions I have taken in relation to this application between late 2021 and early 2024, and as such it is entirely appropriate they attend and produce as per the notices issued to them.
  1. The actions taken, including by omission, by the named recipients are in some instances highly consistent with contraventions of provisions within the Industrial Relations Act 2016 and other relevant legislation including provisions for civil and potentially criminal offences and it is therefore appropriate given the purpose of the IR Act as prescribed in sections 3 and 4, that they attend and produce as compelled to do so.
  1. Some of the actions taken including by omission, by the named recipients have directly or indirectly concealed knowledge of a cause of action that I could have used, if I had been aware, to exercise my workplace rights or take steps in the application (TD/2021/97) based on the very cause of action that was concealed by one or more of the individuals for the Respondent and it is therefore appropriate that they attend and produce as compelled to do so.

…

  1. To date though, despite the efforts of their legal representatives, the full facts and circumstances of the lawfulness of the actions, including omissions taken by the named recipients to conceal knowledge of possible causes of action, have yet to be revealed, so it is entirely appropriate, if not obligatory, for the individual named recipients to provide the necessary evidence that confirms the lawfulness (or otherwise) of their conduct.
  1. [54]
    As a consequence of the above, as best as I understand Dr Plumb's submissions, he contends that compliance by the five objecting persons with the five attendance notices will produce evidence relevant to his r 230 application because:
  • each of them have had some direct or indirect involvement, or have taken no action, in respect of:
  • the actions he has taken with the CCC, the Council, the Queensland department that administers local government and the Queensland Ombudsman; and
  • his right to information requests; and
  • each of them have directly or indirectly concealed (to him) causes of action he could have taken or workplace rights (which are not identified) he could have exercised in relation to his reinstatement application.
  1. [55]
    Further, as I best understand Dr Plumb's submissions, such evidence is relevant to the application of r 230(3) of the Rules because the CCC action, the Council action, the right to information action, and the Departmental and the Ombudsman actions:
  • are actions he has taken since 22 December 2021 (the date of the conciliation conference) and, as such, are actions for the purposes of r 230(1)(b) of the Rules; and
  • are actions in respect of which he has not been able to fully exploit in respect of his reinstatement application because of the alleged acts and omissions of the five objecting persons.

Paragraphs 13 to 16 of Dr Plumb's submissions

  1. [56]
    In these paragraphs, Dr Plumb submits that the conduct he alleges was engaged in by the five objecting persons is inconsistent with the Council's Fraud and Corruption Control Policy, the Council's Code of Conduct and certain provisions of the Crime and Corruption Act 2001.

Paragraphs 17 to 27 of Dr Plumb's submissions

  1. [57]
    In these paragraphs, Dr Plumb makes submissions in respect of why he should not be required to pay conduct money to the five objecting persons.

Paragraphs 28 to 31 of Dr Plumb's submissions

  1. [58]
    In these paragraphs, Dr Plumb makes submissions in respect of why it is not oppressive for the five objecting persons to produce the documents sought.

Paragraphs 33 to 39 of Dr Plumb's submissions

  1. [59]
    In these paragraphs, Dr Plumb makes various concluding submissions as to why the five objecting persons should comply with the notices.

Is the evidence to be produced by the five attendance notices directly relevant to Dr Plumb's r 230 application?

  1. [60]
    The substantive matter that I have to determine, in respect of Dr Plumb's reinstatement application, is whether, pursuant to r 230 of the Rules, I should allow Dr Plumb to take further action on his application for reinstatement.
  1. [61]
    Rule 230 of the Rules provides:
  1. 230
    Lapse of proceeding after at least 1 year's delay
  1. (1)
    This rule applies if–
  1. (a)
    an application starting a proceeding has been filed; and
  1. (b)
    no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken in the application.
  1. (2)
    A party may only take further action on the application with an order of the court, commission or registrar.
  1. (3)
    An application for an order under subrule (2) must be in the approved form and state the following–
  1. (a)
    the steps taken in the proceeding;
  1. (b)
    an explanation for the circumstances of the delay;
  1. (c)
    the steps (including a timetable) proposed to be taken to progress the proceeding;
  1. (d)
    any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
  1. (e)
    the merits of the proceeding;
  1. (f)
    why the court, commission or registrar should make the order despite the delay.
  1. [62]
    Having regard to the submissions made by the five objecting persons, the Council and Dr Plumb, the principal matter I have to decide in determining whether or not to set aside the five attendance notices is whether the evidence to be produced by them is directly relevant to Dr Plumb's r 230 application.
  1. [63]
    In deciding this matter, the two questions are:
  • what is meant by the phrase '…no action has been taken by the applicant in relation to the application' in r 230(1)(b) of the Rules? and
  • what is the purpose of the evidence sought to be produced by the five attendance notices?

What is meant by the phrase '…no action has been taken by the applicant in relation to the application' in r 230(1)(b) of the Rules?

  1. [64]
    The purpose of the Rules, as a whole, is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.[54]  Rule 230 only permits a party to take further action on an application by order of the Commission where no action has been taken after one year. Clearly, the purpose of this rule is to ensure parties take timely steps for the expeditious determination of applications made to the Commission.[55]
  1. [65]
    I have previously considered the construction of r 230 of the Rules. In State of Queensland (Queensland Health) v Workers' Compensation Regulator,[56] I relevantly stated (citations omitted):
  1. [14]
    A number of matters about the application of r 230 are not controversial and were not in dispute between the parties.
  1. [15]
    First, assuming that the elements in r 230(1) of the Rules are made out, it is for a party who wishes to take further action on the application which started a proceeding which has been filed, to show there is good reason for excepting the proceedings from the general prohibition imposed by r 230(1) of the Rules.
  1. [16]
    Secondly, the type of action contemplated in r 230(1)(b) and r 230(2) is action taken in moving the matter towards judgment or the relief sought, or an act or activity that has the characteristic of carrying the cause or action forward.
  1. [17]
    Thirdly, in determining an application under r 230(2) of the Rules, the factors to which regard should be had are those referred to in r 230(3).

…

  1. [35]
    An action, therefore, within the meaning of r 230(1)(b) of the Rules, need not be a step taken or act done in the Commission or the Industrial Registry. Further, it does not need to be something required by the Rules. In Artahs Pty Ltd v Gall Standfield & Smith (A Firm) Margaret McMurdo P relevantly stated in respect of r 389 of the UCPR:
  1. [3]
    The expression "step" is not defined in the UCPR.  Its ordinary meaning in this context is: "a move or proceeding, as towards some end or in the general course of action: the first step towards peace".  Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case.  It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word's ordinary meaning, progress the action towards a conclusion.  I agree with Peter Lyons J that it is not necessary the step be something required by the UCPR.  For example, the filing and service of a reply or a subsequent pleading would usually amount to a step in the action. 
  1. [66]
    As referred to earlier, r 230(3) of the Rules sets out the matters to which the Commission, to the extent they are relevant, must have regard in determining whether or not to make an order to allow a party to take further action on the application pursuant to r 230(2) of the Rules. Rule 230(3)(c) refers to '…the merits of the proceeding.' In respect of Dr Plumb's r 230 application, '…the proceeding' is Dr Plumb's reinstatement application. For the reasons I give later, a question arises as to whether the evidence sought to be produced by the service of the five attendance notices goes to the merits of Dr Plumb's reinstatement application, and if it does, the extent such evidence should be considered in respect of an application for an order for a party to take further action pursuant to r 230(2) of the Rules.
  1. [67]
    It has been accepted that in respect of proceedings involving the application of civil procedure rules of the kind contained in r 230 of the Rules, such hearings are not to be used as an opportunity for a premature trial of the substantive matters in issue.[57] In Cooper v Hopgood and Ganim, McPherson JA referred to the relevant consideration being that of '…the apparent prospects of success or otherwise at a trial of the action.'[58]
  1. [68]
    In Barnes v Q-Comp & Hatch Pty Ltd,[59] Deputy President O'Connor (as his Honour then was) relevantly stated (citations omitted):
  1. Merits of the proceeding
  1. [58]
    In applications such as this it is not always easy to determine prospects of success.
  1. [59]
    As discussed elsewhere, this is both a show cause matter and an application for leave to proceed. Accordingly, a consideration of the prospects of success is a relevant matter in determining whether or not a discretion ought to be exercised in favour of the appellant.
  1. [60]
    In Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt), Chief Industrial Commissioner Hall (as his Honour then was) in dealing with an application under s 295(2)(b) of the Industrial Relations Act 1990 stated:
  1. "I continue to adhere to my observation in Breust (at 779) that the strengths and weaknesses of the applicant's substantive case will not always emerge, and add that in my view it would be inappropriate to permit the hearing of an application for extension of time to develop into a preview of the trial in order that a view might be formed of the Applicant's prospects of success.  In my view, in the ordinary case, an application for extension of time should be a short matter dealt with expeditiously.  A conclusion that an applicant could not in any event succeed will usually flow from formation of a view that there is an obstacle which no amount of evidence will overcome, eg. a conclusion that the respondent was not the employer or that the applicant was not an employee."
  1. [69]
    Furthermore, in Sharples v Workers' Compensation Regulator,[60] I relevantly stated (citations omitted):
  1. [60]
    It is not always easy to determine the prospects of success in applications of the present kind unless the outcome of the proceeding is fairly clear, for example where an applicant's (or appellant's) case appears doomed to fail.
  1. [70]
    In some particular cases, depending on the history of the proceedings or the relationship of the proceedings with other proceedings,[61] it may be possible to draw a firm view about the merits of the substantive proceeding. However, where that is not possible,  civil procedure rules, such as r 230 of the Rules, do not permit the substantive agitation of the principal issues in dispute in the substantive application. That is to say, such a proceeding is not one in which it is usually necessary or appropriate to give detailed consideration to an applicant's prospects of success in the substantive application; however, such considerations may assume greater significance where the outcome of the proceeding is fairly clear, for example, an applicant's case appears doomed to fail.[62]
  1. [71]
    As set out above, Dr Plumb, by his present submissions, contends that the CCC action, the Council action, the right to information action and the Departmental and the Ombudsman actions are actions he has taken within the meaning of r 230(1)(b) of the Rules, such that r 230 does not presently apply to his reinstatement application. Whether all or any of these actions amount to '…action' for the purposes of r 230(1)(b) of the Rules is not a matter that I am required to presently determine.
  1. [72]
    I have had regard to the written submissions filed on 6 June 2024 and on 4 July 2024 by Dr Plumb in support of his r 230 application as referred to in the first footnote of these reasons. By those submissions, Dr Plumb accepts that r 230 of the Rules applies to his application for reinstatement; meaning Dr Plumb accepts that no action was taken by him in relation to his application for reinstatement for at least one year since he took the last action and that, as a consequence, he must persuade the Commission, pursuant to r 230(2) of the Rules, to make an order that he can take further action on his application for reinstatement. That is to say, Dr Plumb, in the submissions he has filed and served in observance of the Directions Orders made by the Commission for the hearing and determination of his r 230 application, has made submissions that appear to be inconsistent with the present submissions he makes in support of the five attendance notices not being set aside.
  1. [73]
    Despite the above, given that Dr Plumb may argue that the CCC action, the Council action, the right to information action and the Departmental and the Ombudsman actions are actions he has taken within the meaning of r 230(1)(b) of the Rules (such that an order from the Commission pursuant to r 230(2) of the Rules is unnecessary) then that is relevant in determining whether the evidence sought to be adduced, by virtue of his service of the five attendance notices, is directly relevant to a matter in issue in his r 230 application.

What is purpose of the evidence sought to be produced by the five attendance notices?

The Mayor's attendance notice

  1. [74]
    The Mayor's attendance notice states:

In correspondence from the Crime and Corruption Commission dated 21 January 2022, received in response to my request for an update on my complaint lodged with them on 6 October 2021 (CO-21-2798) I was advised by them that, "We are informed that Mr Cheesman has oversight of your matter, in liaison with the Mayor, and that it is nearing conclusion."

On 24 January 2022 as a follow-up to the abovementioned email, in an email to Ross Cheesman and Cr Tony Williams I stated amongst other things, "Note that I am particularly concerned if the investigation is nearing completion as neither you nor anyone else from RRC has contacted me about the complaint or the investigation. It therefore remains to be seen how an investigation could even have been scoped let alone undertaken without obtaining detailed additional information from me which had not been provided to the CCC. I keenly await the completion of this "investigation" to see how Council's relevant policies and procedures have been followed closely."

On 15 February 2022, following a meeting with Travis Pegrem in City Hall, I emailed Travis Pegrem and Cr Tony Williams a copy of the full complaint I made to the Crime and Corruption Commission on 6 October 2021, so that it could be included as evidence in the investigation being conducted by Ross Cheesman in liaison with Cr Tony Williams.

Please provide copies of the documents that outline your involvement and any actions you took in the investigation you were involved with at the request of the Crime and Corruption Commission into my termination by Rockhampton Regional Council including documents associated with the statement "As the nominated officer under Council policy for dealing with complaints against the Chief Executive Officer, I managed this investigation and liaised with the Mayor. The Mayor has reviewed the investigation report and has concurred with the findings." made in the letter from Ross Cheesman to Jason Plumb dated 23 September 2022.

In particular, please provide copies of documents that demonstrate how you ensured that the investigation was conducted in a manner that was compliance [sic] with relevant policies, procedures and legislation and how any contraventions of relevant policies, procedures and legislation were identified and actioned accordingly pursuant to your legislative obligations as Mayor of Rockhampton Regional Council.

  1. [75]
    The Council submits that none of the documents sought to be produced as identified in the Mayor's attendance notice, regarding the Mayor's involvement in managing Dr Plumb's complaint to the CCC are directly relevant to a matter in issue in Dr Plumb's r 230 application.[63] I accept these submissions.
  1. [76]
    In my view, none of the documents sought to be produced by the Mayor's attendance notice are directly relevant to Dr Plumb's r 230 application. That is, none of the documents would tend to prove or disprove an allegation in issue in Dr Plumb's r 230 application. This is for two reasons.
  1. [77]
    First, if it is the case that Dr Plumb wants to argue that the CCC action is action he has taken within the meaning of r 230(1)(b) of the Rules, then that is evidence Dr Plumb can lead himself. That is to say, any documents that could be produced by the Mayor in relation to the Mayor's involvement in any investigation of Dr Plumb's complaint to the CCC are simply not directly relevant to proving the point that Dr Plumb may wish to ultimately make, namely, that the CCC action Dr Plumb may have taken is '…action' for the purposes of r 230(1)(b) of the Rules. The inquiry contained in r 230(1)(b) of the Rules is about whether or not relevant action has been taken by '…the applicant'. The inquiry is not about action taken by a respondent.
  1. [78]
    Secondly, in respect of the documents described in the last two paragraphs in the Mayor's attendance notice, those documents, at best, go to the substantive merits of whether or not Dr Plumb's dismissal was harsh, unjust or unreasonable. As referred to earlier, an application under r 230 of the Rules, for an order to take further action in respect of a substantive application, is not an opportunity for a premature trial of the substantive application.

Mr Pardon's attendance notice

  1. [79]
    Mr Pardon's attendance notice states:

Please provide copies of the specific Queensland legislation or public policy that provided you with the lawful power or authority to execute a Deed of Settlement on behalf of Rockhampton Regional Council on or around 5 October 2021 despite you not complying with the mandatory requirements of section 283 of the Local Government Regulation 2012 and the mandatory requirements of condition 4.3 in the RRC Certified Agreement 2018 – Internal Employees.

As indicated previously to you I will be seeking to obtain evidence from Evan Pardon to confirm what he understood as to the content and purpose of the Deed of Settlement and any facts and circumstances associated with any legislative delegation or authorisation he possessed at the time he signed the Deed of Settlement.

  1. [80]
    The Council submits that the documents sought to be produced by Mr Pardon's attendance notice are not directly relevant to any matter in issue in Dr Plumb's r 230 application.[64] I accept this submission.
  1. [81]
    In my view, none of the documents sought to be produced by Mr Pardon's attendance notice are directly relevant to Dr Plumb's r 230 application. That is, none of the documents would tend to prove or disprove an allegation in issue in Dr Plumb's r 230 application.
  1. [82]
    The lawful power or authority of Mr Pardon to enter into a Deed of Settlement with Dr Plumb, on behalf of the Council, is not in any way directly relevant to any of the matters that must be considered in respect of r 230(3) of the Rules.
  1. [83]
    Put another way, the matters referred to in r 230(3)(a) to (f) of the Rules marshal the relevant considerations in respect of whether or not there is good reason for excepting Dr Plumb's reinstatement application from the general prohibition imposed by r 230(1) of the Rules. Mr Pardon's lawful power or authority, on behalf of the Council, to enter into a Deed of Settlement with Dr Plumb after Dr Plumb's dismissal, is not material to those relevant considerations.

Mr Cheesman's attendance notice

  1. [84]
    Mr Cheesman's attendance notice states:

Please provide copies of the specific Queensland legislation or public policy that provided you with the lawful power or authority to sign a Deed of Settlement on behalf of Rockhampton Regional Council on or around 5 October 2021 despite Rockhampton Regional Council not complying with the mandatory requirements of section 283 of the Local Government Regulation 2012 and the mandatory requirements of condition 4.3 in the RRC Certified Agreement 2018 – Internal Employees.

Please provide copies of the documents that outline how your involvement, lawful or otherwise, in the execution of the above-mentioned Deed of Settlement was included as part of the investigation you undertook at the request of the Crime and Corruption Commission into my termination by Rockhampton Regional Council and the circumstances associated with it as referenced by your words "As the nominated officer under Council policy for dealing with complaints against the Chief Executive Officer, I managed this investigation and liaised with the Mayor. The Mayor has reviewed the investigation report and has concurred with the findings." made in the letter from Ross Cheesman to Jason Plumb dated 23 September 2022.

As indicated previously to you, I will be seeking to obtain evidence from Ross Cheesman to confirm what he understood as to the content and purpose of the Deed of Settlement and any facts and circumstances associated with any legislative delegation or authorisation he possessed at the time he signed the Deed of Settlement.

  1. [85]
    The Council submits that the lawful power or authority of Mr Cheesman to execute a Deed of Settlement on behalf of the Council is not directly relevant to any matter in issue in Dr Plumb's r 230 application.[65] I agree.
  1. [86]
    For the same reasons I have given above in paragraphs [82] and [83] in respect of Mr Pardon's attendance notice, the documents sought to be produced by way of Mr  Cheesman's attendance notice are not directly relevant to any matter in issue in         Dr Plumb's r 230 application. Further, Mr Cheesman's involvement in any investigation at the request of the CCC about Dr Plumb's dismissal is, at best, only relevant to the merits of whether or not Dr Plumb's dismissal was harsh, unjust or unreasonable.           Dr Plumb's application under r 230 of the Rules is not an opportunity for a premature trial of Dr Plumb's reinstatement application.

Mr Kofod's attendance notice

  1. [87]
    Mr Kofod's attendance notice states:

Please provide copies of any documents that specifically describe or support the statement "The General Manager recommended the termination." made in the Rockhampton Regional Council Employer Response TD/2021/97 sent by Travis Pegrem to the QIRC on 25 November 2021, including associated metadata.

On the assumption that the above statement attributed to you (Peter Kofod) might be correct, please provide copies of any correspondence that demonstrates that you had or shared about any concerns about my work performance or employment status with me (Jason Plumb) prior to 5 October 2021, that are consistent with you recommending my termination as described above.

As previously indicated to you, I will be seeking to obtain evidence from Peter Kofod to confirm the above allegation and any facts and circumstances that relate to the recommendation he made and how this relates to his role of acting as Benefit to me as outlined in the Deed of Settlement.

  1. [88]
    The Council submits that while the documents sought to be produced by Mr Kofod's attendance notice might be relevant to a matter in issue in Dr Plumb's reinstatement application, they are not relevant to a matter in issue in respect of his r 230 application. Specifically, the Council submits that while 'merit' is a factor in the application of r 230 of the Rules, that '…is not a licence for Dr Plumb to litigate his TD Application during the Rule 230 application hearing'.[66] I accept these submissions as correct.
  1. [89]
    The documents sought to be produced as referred to in the first two paragraphs of Mr Kofod's attendance notice go to the substantive merits of Dr Plumb's reinstatement application. On the authorities to which I have referred to earlier in these reasons, a detailed consideration of the substantive merits of Dr Plumb's reinstatement application is not necessary or appropriate in respect of his r 230 application. For that reason, the documents sought to be produced are not directly relevant to Dr Plumb's r 230 application.

Mr Pegrem's attendance notice

  1. [90]
    Mr Pegrem's attendance notice states:

Please provide copies of the specific Queensland legislation or public policy that provided you with the lawful power or authority to sign a Deed of Settlement on behalf of Rockhampton Regional Council on or around 5 October 2021 despite Rockhampton Regional Council not complying with the mandatory requirements of section 283 of the Local Government Regulation 2012 and the mandatory requirements of condition 4.3 in the RRC Certified Agreement 2018 – Internal Employees.

Please provide copies of any documents that specifically describe or support the statement "The General Manager recommended the termination." made in the Rockhampton Regional Council Employer Response TD/2021/97 sent by Travis Pegrem to the QIRC on 25 November 2021, including associated metadata.

Please provide copies of the specific Queensland legislation or public policy that provided you with the lawful power or authority to take action by omission, pursuant to section 279 of the Industrial Relations Act 2016, when you deliberated [sic] omitted any reference to Rockhampton Regional Council not complying with the mandatory requirements of section 283 of the Local Government Regulation 2012 and the mandatory requirements of condition 4.3 in the RRC Certified Agreement 2018 – Internal Employees, despite you being aware (or reasonbly [sic] ought to have been aware) that these mandatory requirements were not followed by Rockhampton Regional Council, when you prepared and submitted the Employer Response dated 25 November 2021 to the QIRC matter no. TD/2021/97.

As previously indicated to you, I will be seeking to obtain evidence from Travis Pegrem to confirm what he understood as to the content and purpose of the Deed of Settlement and any facts and circumstances associated with any legislative delegation or authorisation he possessed at the time he signed the Deed of Settlement and the Employer Response and the relationship between the content of these two documents.

  1. [91]
    The Council submits:
  1. The Notice to Mr Pegrem seeks copies of 'Queensland legislation or public policy that provided you with the lawful power or authority to sign a (Deed) on behalf of (Council) ... despite (Council) not complying with' procedural fairness obligations. That is the same as paragraph 34(a) above, and so Council repeats paragraph 35[67] in responding to this aspect of the Notice.
  2. The Notice seeks documents about whether Mr Kofod recommended Dr Plumb be dismissed. That is the same as paragraph 29(a) above, and so Council repeats paragraph 30[68] above.
  1. The Notice seeks copies of 'Queensland legislation or public policy' that allowed Council to not refer to particular legislation referred to by Dr Plumb, when Council filed its employer response. That is not a category of documents; it is an allegation by Dr Plumb. Council was free to respond to Dr Plumb's TD Application in the manner it saw fit. Whether Dr Plumb was unfairly dismissed would be a matter for a substantive hearing of the TD Application, which has lapsed. That aspect of the Notice is not directly relevant to the Rule 230 Application, nor the substantive TD Application. Further, 'Queensland legislation or public policy' are public documents and are therefore already accessible by Dr Plumb.
  2. The Notice seeks evidence about the 'content and purpose' of the Deed, and Mr Pegrem's authorisation to sign the Deed and employer response, and 'the relationship between the content of those two documents'. That paragraph of the Notice is a confused combination of Dr Plumb's allegations. That is not directly relevant to any matter in issue in the Rule 230 Application, nor the TD Application. The Deed in particular is addressed at paragraph 21 above.
  1. [92]
    I accept the Council's submissions.
  1. [93]
    The documents sought to be produced by the first three paragraphs of Mr Pegrem's notice to produce are not directly relevant to Dr Plumb's r 230 application. The documents sought to be produced, in my view, may be relevant to the merits of his substantive application, namely his reinstatement application. However, in coming to that conclusion, I note that the documents sought in respect of the issues referred to in the first three paragraphs of Mr Pegrem's affidavit are not the same as the grounds upon which he alleges his dismissal was harsh, unjust or unreasonable, as referred to by Dr Plumb in his application for reinstatement and as set out in paragraph [11] of these reasons.
  1. [94]
    For the same reasons given in respect of the documents sought to be produced by Mr Pardon's attendance notice regarding the Deed of Settlement, such similar documents sought to be produced by Mr Pegrem are not directly relevant to Dr Plumb's r 230 application. 

Other grounds pressed by the Council and the five objecting persons

  1. [95]
    Given my conclusions that the documents sought to be produced by the attendance notices served on the five objecting persons are not directly relevant to Dr Plumb's r 230 application, it is not necessary for me to consider the further submissions made by the Council, the five objecting persons and Dr Plumb about the other grounds pressed to set aside the five attendance notices.

Conclusion

  1. [96]
    For the reasons I have given, pursuant to r 61 of the Rules, I will set aside the five attendance notices.
  1. [97]
    I will separately issue a notice of listing for the hearing of Dr Plumb's r 230 application.

Orders

  1. [98]
    I make the following orders:
  1. Pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the attendance notice for production and to give evidence issued served on Cr Tony Williams, Mayor, Rockhampton Regional Council in Matter No. TD/2021/97,  is set aside.
  1. Pursuant to r 61 of the Rules, the attendance notice for production and to give evidence served on Mr Evan Pardon, Chief Executive Officer, Rockhampton Regional Council in Matter No. TD/2021/97, is set aside.
  1. Pursuant to r 61 of the Rules, the attendance notice for production and to give evidence served on Mr Ross Cheesman, Deputy Chief Executive Officer, Rockhampton Regional Council in Matter No. TD/2021/97, is set aside.
  1. Pursuant to r 61 of the Rules, the attendance notice for production and to give evidence served on Mr Peter Kofod, General Manager, Regional Services, Rockhampton Regional Council in Matter No. TD/2021/97, is set aside.
  1. Pursuant to r 61 of the Rules, the attendance notice for production and to give evidence served on Mr Travis Pegrem, Coordinator People and Capability, Rockhampton Regional Council in Matter No. TD/2021/97, is set aside.

Footnotes

[1] Dr Plumb filed and served:

  1. •
    an outline of argument on 6 June 2024 and written submissions in reply on 4 July 2024;
  1. •
    the following affidavits:
  1. –
    affidavits of himself affirmed on 6 June 2024 and on 19 August 2024;
  2. –an affidavit of Ms Melinda White affirmed on 28 August 2024;
  3. –affidavits of Ms Tracy Sweeney affirmed on 29 August 2024 and on 28 May 2025;
  1. •
    outlines of evidence of:
  1. –
    Ms Lisa Kibblewhite dated 19 August 2024;
  2. –Ms Melinda White dated 19 August 2024;
  3. –Ms Tracy Sweeney dated 19 August 2024
  4. –Mr Evan Pardon dated 19 August 2024;
  5. –Mr Ross Cheesman dated 19 August 2024;
  6. –Mr Peter Kofod dated 19 August 2024; and
  7. –Mr Travis Pegrem dated 19 August 2024.

[2] The Council filed and served:

  1. •
    written submissions on 2 July 2024; and
  1. •
    affidavits of Mr Travis Pegrem sworn on 2 July 2024 and on 16 September 2024.

[3] [2025] QIRC 150.

[4] [2025] QIRC 176. This application by Dr Plumb was given Matter No. GP/2024/38.

[5] The Application for reinstatement filed by Jason Joel Plumb on 11 November 2021 ('Dr Plumb's reinstatement application'), section 7, para. 2.

[6] Dr Plumb's reinstatement application, section 7, para. 3.

[7] Dr Plumb's reinstatement application, section 9, para. 1.

[8] Dr Plumb's reinstatement application, section 9, para. 2.

[9] Dr Plumb's reinstatement application, section 9, para. 5.

[10] Dr Plumb's application for reinstatement, section 9, para. 6.

[11] Dr Plumb's application for reinstatement, section 9, para. 7.

[12] The Employer response to application for reinstatement filed by the Rockhampton Regional Council on 25 November 2021 ('the Council's response'), section 4.

[13] The Council's response, section 5.1, para. 1.

[14] The Council's response, section 5.1, para. 2.

[15] The Council's response, section 5.1, para. 3.

[16] If Dr Plumb's r 230 application is successful, whether or not the Commission, pursuant to s 317(2)(b) of the Industrial Relations Act 2016 in the exercise of its discretion, would allow Dr Plumb a further period to make his reinstatement application is an issue that will need to be heard and determined despite the Council not formally raising that issue as a jurisdictional issue.

[17] See e.g. McEwan v Rains [2023] QCA 135; (2023) 15 QR 251, [46](e)(i), (f) and (i) (Bond JA, McMurdo JA at [1] and Callaghan J at [53] agreeing).

[18] As has been the practice, see DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010, [14] (Martin J, President).

[19] The submissions of the Rockhampton Regional Council filed on 5 June 2025 ('the Council's submissions'), para. 8.

[20] The Council's submissions, para. 9.

[21] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J).

[22] Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323 [45] (McMurdo J) and Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025, [42] (Davis J, President) and Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors [2023] QSC 282, [18] (Burns J).

[23] Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors [2023] QSC 282, [18] (Burns J).

[24] Marsden v Amalgamated Television Services Pty Limited [1999]  NSWSC 619, [424] (Levine J).

[25] Westsand Pty Ltd v Johnson [1999] QSC 337, [17] (Wilson J).

[26] Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573 (Jordan CJ, Davidson and Owen JJ at 582 agreeing).

[27] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710, 720‑721 ('Southern Pacific') (Clarke J).

[28] St Francis Xavier Cabrini Hospital Governing Board Inc v Micallef [2000] VSC 19, [8] (Beach J).

[29] Southern Pacific (n 27), 720 (Clarke J).

[30] Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 570 ('Lucas') (Smithers J, Bowen CJ at 557 and Nimmo J at 577 agreeing).

[31] McColl v Lehmann [1987] VR 503, 513 (Kaye J).

[32] Lucas (n 30), 571 (Smithers J, Bowen CJ at 557 and Nimmo J at 577 agreeing).

[33] The Council's submissions, para. 47.

[34] The Council's submissions, para. 48.

[35] The Council's submissions, paras. 22-46.

[36] The written submissions of Cr Tony Williams filed on 6 June 2025 ('the Mayor's submissions'), para. 1(b), the written submissions of Mr Evan Pardon filed on 6 June 2025 ('Mr Pardon's submissions'), the second para. 1(a), the written submissions of Mr Ross Cheesman filed on 6 June 2025 ('Mr Cheesman's submissions'), para. 1(b), the written submissions of Mr Peter Kofod ('Mr Kofod's submissions'), para. 1(b) and the written submissions of Mr Travis Pegrem ('Mr Pegrem's submissions'), the second para. 1(a).

[37] The Mayor's submissions, para. 1(c), Mr Pardon's submissions, para. 1(b), Mr Cheesman's submissions, para. 1(c), Mr Kofod's submissions, para. 1(c) and Mr Pegrem's submissions, para. 1(b).

[38] The Mayor's submissions, para. 1(d), Mr Pardon's submissions, para. 1(c), Mr Cheesman's submissions, para. 1(d), Mr Kofod's submissions, para. 1(d) and Mr Pegrem's submissions, para. 1(c).

[39] The Mayor's submissions, para. 1(f), Mr Pardon's submissions, para. 1(e), Mr Cheesman's submissions, para. 1(g), Mr Kofod's submissions, para. 1(f) and Mr Pegrem's submissions, para. 1(e).

[40] The Mayor's submissions, para. 2, Mr Pardon's submissions, para. 2, Mr Cheesman's submissions, para. 2, Mr Kofod's submissions, para. 2 and Mr Pegrem's submissions, para. 2.

[41] The Mayor's submissions, paras. 4-6, Mr Pardon's submissions, paras. 4-6, Mr Cheesman's submissions, paras. 4-6, Mr Kofod's submissions, paras. 4-6, and Mr Pegrem's submissions, paras. 4-6.

[42] The Mayor's submissions, para. 8, Mr Pardon's submissions, para. 8, Mr Cheesman's submissions, para. 8, Mr Kofod's submissions, para. 8 and Mr Pegrem's submissions, para. 8.

[43] The Mayor's submissions, para. 8, Mr Pardon's submissions, para. 8 and Mr Cheesman's submissions, para. 8.

[44] Mr Pegrem's submissions, para. 8.

[45] The Mayor's submissions, para. 9, Mr Pardon's submissions, para. 9, Mr Cheesman's submissions, para. 9, Mr Kofod's submissions, para. 9 and Mr Pegrem's submissions, para. 9.

[46] Mr Pegrem's submissions, para. 1(d).

[47] The Mayor's submissions, para. 1(e), Mr Pardon's submissions, para. 1(d), Mr Cheesman's submissions, para. 1(f), and Mr Kofod's submissions, para. 1(e).

[48] Mr Cheesman's submissions, para. 1(d).

[49] The Mayor's submissions, para. 10, Mr Pardon's submissions, para. 10, Mr Cheesman's submissions, para. 10, Mr Kofod's submissions, para. 10 and Mr Pegrem's submissions, para. 10.

[50] The written submissions of Dr Jason Joel Plumb filed on 19 June 2025 ('Dr Plumb's submissions'), para. 40.

[51] By which Dr Plumb means his reinstatement application.

[52] Dr Plumb submissions, paras. 1-3.

[53] The affidavit of Dr Jason Joel Plumb filed on 12 June 2025 ('Dr Plumb's June 2025 affidavit '), paras. 3-7.

[54] Industrial Relations (Tribunals) Rules 2011, r 6.

[55] Sharples v Workers' Compensation Regulator [2020] ICQ 020 ('Sharples') [28] (Deputy President Merrell).

[56] [2024] QIRC 010. See also Sharples (n 55), [29] (Deputy President Merrell).

[57] Kieoskie v Workers' Compensation Board of Queensland (Queensland Court of Appeal, McPherson JA, 15 September 1992) page 3 (in respect of the equivalent rule to r 389 of the Uniform Civil Procedure Rules 1999, namely O. 90, r 9 of the former Rules of the Supreme Court) and Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025, [60] (Deputy President O'Connor).

[58] [1998] QCA 114; [1998] 2 Qd R 113, 124.

[59] [2017] QIRC 025.

[60] Sharples (n 55).

[61] See e.g. Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025, [61]-[65] (Deputy President O'Connor).

[62] Artahs Pty Ltd v Gall Stanfield & Smith (A Firm) [2011] QSC 273, [24] (Applegarth J).

[63] The Council's submissions, paras 23-24.

[64] The Council's submissions, paras. 21, 42 and 44-45.

[65] The Council's submissions, paras. 34-37.

[66] The Council's submissions, para. 30.

[67] At paragraph 35, the Council submitted:

  1. 35
    Paragraph 34(a) above is predicated on matters which are not admitted by Council. It is also an invitation to answer questions about how Council had 'lawful power or authority' to enter the Deed, rather than being limited to identifying a document or category of documents. Per paragraph 21 above, that matter is not relevant to the matters at issue in the Rule 230 Application. Even if that were directly relevant to the substantive TD Application, which is denied, that matter has lapsed. Further, that aspect of the Notice does not adequately describe the documents Mr Cheesman must produce. Insofar as it identifies any documents, they are public and therefore already accessible by Dr Plumb, namely 'Queensland legislation or public policy'.

[68] At paragraph 30, the Council submitted:

  1. 30
    Paragraphs 29(a) and 29(b) above might be relevant to a matter at issue in Dr Plumb's substantive TD Application. But, his TD Application is not currently on foot. The Notices can only seek evidence which is directly relevant to the Rule 230 Application. Per paragraphs 19 to 20 above, while 'merit' is a factor for rule 230, that is not a licence for Dr Plumb to litigate his TD Application during the Rule 230 Application hearing. It is readily apparent from the material already filed that there are factual disputes between the parties which go to the merits of Dr Plumb's TD Application. Those are issues for a substantive hearing of the TD Application, not for the Rule 230 Application. Council should not be required to put on its evidentiary case twice, and that is what Council may need to do if Dr Plumb is permitted to essentially run his evidentiary case in the Rule 230 Application.
Close

Editorial Notes

  • Published Case Name:

    Plumb v Rockhampton Regional Council (No. 3)

  • Shortened Case Name:

    Plumb v Rockhampton Regional Council (No. 3)

  • MNC:

    [2025] QIRC 189

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    24 Jul 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
Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2011] QSC 273
2 citations
Jump To
Cite 1 - [2011] QSC 273
Cite 2 - [2011] QSC 273
Barnes v Q-Comp [2017] QIRC 25
4 citations
Jump To
Cite 1 - [2017] QIRC 25
Cite 2 - [2017] QIRC 25
Cite 3 - [2017] QIRC 25
Cite 4 - [2017] QIRC 25
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1998] QCA 114
Cite 2 - [1998] QCA 114
DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10
2 citations
Jump To
Cite 1 - [2014] ICQ 10
Cite 2 - [2014] ICQ 10
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
2 citations
Jump To
Cite 1 - (1978) 18 ALR 555
Cite 2 - (1978) 18 ALR 555
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619
2 citations
Jump To
Cite 1 - [1999] NSWSC 619
Cite 2 - [1999] NSWSC 619
McColl v Lehmann [1987] VR 503
2 citations
Jump To
Cite 1 - [1987] VR 503
Cite 2 - [1987] VR 503
McEwan v Rains(2023) 15 QR 251; [2023] QCA 135
4 citations
Jump To
Cite 1 - [2023] QCA 135
Cite 2 - [2023] QCA 135
Cite 3 - (2023) 15 QR 251
Cite 4 - (2023) 15 QR 251
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
2 citations
Jump To
Cite 1 - [1986] HCA 40
Cite 2 - [1986] HCA 40
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Niceforo v Berkshire Hathaway Specialty Insurance Company [2023] QSC 282
3 citations
Jump To
Cite 1 - [2023] QSC 282
Cite 2 - [2023] QSC 282
Cite 3 - [2023] QSC 282
Plumb v Rockhampton Regional Council [2025] QIRC 176
2 citations
Jump To
Cite 1 - [2025] QIRC 176
Cite 2 - [2025] QIRC 176
Plumb v Rockhampton Regional Council (No. 2) [2025] QIRC 150
2 citations
Jump To
Cite 1 - [2025] QIRC 150
Cite 2 - [2025] QIRC 150
Sharples v Workers' Compensation Regulator [2020] ICQ 20
2 citations
Jump To
Cite 1 - [2020] ICQ 20
Cite 2 - [2020] ICQ 20
Southern Pacific Hotel Services Inc. v Southern Pacific Hotel Corp Ltd (1984) 1 NSWLR 710
2 citations
Jump To
Cite 1 - (1984) 1 NSWLR 710
Cite 2 - (1984) 1 NSWLR 710
St Francis Xavier Cabrini Hospital Governing Board Inc v Micallef [2000] VSC 19
2 citations
Jump To
Cite 1 - [2000] VSC 19
Cite 2 - [2000] VSC 19
State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10
2 citations
Jump To
Cite 1 - [2024] QIRC 10
Cite 2 - [2024] QIRC 10
The Commissioner for Railways v Small (1938) 38 S.R. N.S.W 564
2 citations
Jump To
Cite 1 - (1938) 38 S.R. N.S.W 564
Cite 2 - (1938) 38 S.R. N.S.W 564
Westsand Pty Ltd v Trevor William Johnson [1999] QSC 337
2 citations
Jump To
Cite 1 - [1999] QSC 337
Cite 2 - [1999] QSC 337
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2025] QIRC 2032 citations
1

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