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CITE

Unreported Judgment

Graafland v State of Queensland (Department of the Premier and Cabinet) (No. 2)[2025] QIRC 34Merrell DP
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Graafland v State of Queensland (Department of the Premier and Cabinet) (No. 2)[2025] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Graafland v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2) [2025] QIRC 034
PARTIES:	Graafland, Bree (Complainant) v State of Queensland (Department of the Premier and Cabinet) (First Respondent) and Spinks, Denise (Second Respondent) and Murphy, Jim (Third Respondent) and Hunter, Rachel (Fourth Respondent)
CASE NO.:	AD/2024/54
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	6 February 2025
DATES OF WRITTEN SUBMISSIONS:	The Respondents' submissions filed on 22November 2024 The Complainant's submissions filed on 9 December 2024
MEMBER:	Merrell DP
HEARD AT:	On the papers
ORDER:	Pursuant to s 539(b)(iv) of the *Industrial Relations Act* **2016, the Second, Third and Fourth Respondents are struck out as parties in Case No. AD/2024/54**.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – Complainant performed work for the First Respondent as an Advisor – Complainant made complaint to the Queensland Human Rights Commission alleging she had been the subject of unlawful sex discrimination and victimisation in contravention of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – complaint as referred made against the First Respondent and also against the Second, Third and Fourth Respondents who are individuals – where application in existing proceedings made by the Respondents for an order, pursuant to s 539(b)(iv) of the Industrial Relations Act 2016, striking out the Second, Third and Fourth Respondents as parties – application made by the Respondents for reasons including that, pursuant to s 269 of the Public Sector Act 2022, any civil liability of the Second, Third and Fourth Respondents attaches to the First Respondent – whether Second, Third and Fourth Respondents should be struck out as parties for that reason – Second, Third and Fourth Respondents should not be parties to the proceeding because they cannot be civilly liable for any contravention of the Anti‑Discrimination Act 1991 – application granted
LEGISLATION:	Anti-Discrimination Act 1991, s 129, s 136, s 174B, s 174C and s 209 Federal Court Rules 2011, r 9.08 Human Rights Act 2019, s 15 Industrial Relations Act 2016, s 3, s 4, s 531 and s 539 Police Service Administration Act 1990, s 10.5 Public Sector Act 2022, s 266, s 267, s 268 and s 269 Uniform Civil Procedure Rules 1999, r 69
CASES:	Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 Fagan v Minister for Corrective Services [2024] WASCA 167 Hayes v Lend Lease Darling Park One Pty Ltd [2017] NSWSC 1376 McEwan v Director of Public Prosecutions (Qld) and Anor [2022] QCA 231; (2022) 304 A Crim R 126 McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors [2022] QSC 81 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Qasim v Bird & Ors [2022] NSWSC 258
APPEARANCES:	The Complainant represented herself The Respondents were represented by Ashurst Australia

Reasons for Decision

Introduction

[1]
Ms Bree Graafland ('the Complainant') was employed by the State of Queensland as an Advisor in the Department of the Premier and Cabinet ('the Department').

[2]
On 13 July 2023, the Complainant made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging that she was the subject of unlawful sex discrimination by the Respondents in the work area, and further, that she was the subject of victimisation in contravention of the Anti-Discrimination Act 1991 ('the complaint').

[3]
Having regard to Ms Graafland's complaint to the QHRC and the first attachment to it, she alleges that the unlawful conduct engaged in by the Respondents, contrary to the Anti-Discrimination Act 1991, occurred between March 2018 and 10 January 2022.

[4]
Over that period of time:

the Second Respondent was the Deputy Chief of Staff in the Office of the Premier;

the Third Respondent was the Chief of Staff in the Office of the Premier; and

the Fourth Respondent was the Director-General of the Department.

[5]
On 29 July 2024, the QHRC referred the complaint to this Commission. The QHRC characterised the complaint as being one of unlawful direct and indirect discrimination in the work area on the basis of the Complainant's sex, and of victimisation. The QHRC also identified, within the complaint, allegations of limitations of the Complainant's human right to recognition and equality before the law within the meaning of s 15 of the Human Rights Act 2019.

[6]
In broad terms, by the complaint accepted by the QHRC as referred to this Commission, the Complainant alleges that:

she was the subject of unlawful sex discrimination in the work area because:

–she was paid less than three male colleagues, who were employed at the same time as her and in circumstances where she performed the same work as her male colleagues; and

–she was later offered an increase to the classification of her position, but which was at a level less than her male colleagues; and

she was victimised contrary to s 129 of the Anti-Discrimination Act 1991.

[7]
The complaint has been allocated to me for conciliation.

[8]
By an application in existing proceedings filed on 22 November 2024, the Respondents applied for an order that, pursuant to s 539(b)(iv) of the Industrial Relations Act 2016 ('the IR Act'), the Second, Third and Fourth Respondents be struck out as parties to the proceeding ('the Respondents' application'). I directed the parties to file written submissions in relation to the Respondents' application and further directed that I would determine the Respondents' application on the papers.

[9]
For the reasons that follow, I will grant the Respondents' application.

Relevant background

[10]
I originally scheduled a conciliation conference for the complaint to take place on 10 October 2024.

[11]
On 7 August 2024, the Complainant filed an application in existing proceedings by which she sought an order that three further individuals be joined as respondents to the complaint ('the Complainant's application').^[1] I mentioned the Complainant's application on 13 August 2024. I was informed that the Complainant had not served a copy of that application on those other individuals. I then issued directions for the Complainant to serve the Complainant's application on those individuals she proposed to join. I also vacated the scheduled conference for 10 October 2024.

[12]
On 31 October 2024, I then made further directions, as jointly proposed by the parties:

for the Respondents to file and serve written submissions in relation to the Complainant's application;

for the Respondents to file and serve its present application (for the Second, Third and Fourth Respondents to be removed as parties to the complaint) and for the Complainant to file and serve written submissions in response to that application; and

for all applications to be determined on the papers.

[13]
By email forwarded to the Industrial Registry on 6 December 2024, the Complainant withdrew her application to join the three other individuals as parties to her complaint.

[14]
For these reasons, I have not, at this point:

directed the parties to file and serve statements of facts and contentions and to complete discovery; and

then attempted to assist the parties resolve the complaint by conciliation.

The power of the Commission to strike out a party to a proceeding

[15]
The Respondents assert that the power of the Commission, to strike out the Second, Third and Fourth Respondents as parties to the proceeding, is found in s 539(b)(iv) of the IR Act.

[16]
The Commission is a tribunal for the purposes of ch 7 of the Anti-Discrimination Act 1991. Section 174B(a)(iv) of the Anti-Discrimination Act 1991 provides that the Commission has the function, in relation to complaints about contraventions of the Anti-Discrimination Act 1991 that are referred to it under that Act, of hearing and deciding the complaints.

[17]
Section 174C of the Anti-Discrimination Act 1991 provides:

174C Powers of tribunal under relevant tribunal Act

If this Act confers jurisdiction on the tribunal in relation to a complaint or other matter, the tribunal may exercise the powers conferred on it under this Act or the relevant tribunal Act.

Nothing in this Act limits the industrial relations commission's powers under the IR Act, section 539.

[18]
Section 539 of the IR Act relevantly provides:

539 Powers incidental to exercise of jurisdiction

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

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

direct, for proceedings–

who the parties to the proceedings are; and

by whom the parties may be represented; and

persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and

parties to be joined or struck out; and

who may be heard and on what conditions …

[19]
Having regard to ch 7, pt 2, div 1, sub-div 1 of the Anti-Discrimination Act 1991, which confers certain powers on the Commission as part of the pre-hearing process, but which does not contain an express power for the Commission to strike out a party from a proceeding, then the power of the Commission to strike out a party from a proceeding under the Anti-Discrimination Act 1991 may be derived from s 539(b)(iv) of the IR Act.

[20]
Unlike the power given to courts under civil procedure rules to remove a party from a proceeding,^[2] the discretion conferred on the Commission pursuant to s 539(b)(iv) of the IR Act, to strike out a party, does not expressly identify matters that are to be considered. Where a statutory provision, under which a decision is to be made, does not expressly identify matters that are to be considered by the decision maker, the relevant matters that must be taken into account will be determined by the proper construction of the statutory provision in question, having regard to the Act's subject matter, scope and purpose.^[3]

[21]
One of the main purposes of the IR Act, being '… to provide for a framework for cooperative industrial relations that … supports the delivery of high quality services, economic prosperity and social justice for Queenslanders'^[4] is achieved by '… preventing and eliminating sexual harassment, sex or gender-based harassment, discrimination, bullying and other unfair treatment in employment.'^[5]

[22]
Section 531(3) of the IR Act provides that in proceedings, the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole. In the present case, the statutory context of this provision is in respect of the function of the Commission, under s 174B(a)(iv) of the Anti-Discrimination Act 1991, to hear and decide complaints of unlawful discrimination referred to it by the QHRC. Having regard to s 531(3) of the IR Act, it seems to me that the Commission, in exercising its discretion under s 539(b)(iv) of the IR Act, should not depart from established principles of the general law.^[6]

[23]
In Agar v Hyde,^[7] Gaudron, McHugh, Gummow and Hayne JJ relevantly stated (citation omitted):

It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

[24]
This approach has been applied in determining whether a respondent should be removed as a party to a proceeding.^[8]

The Respondents' submissions

[25]
The Respondents submit:

at the time of the alleged unlawful discrimination, the Second, Third and Fourth Respondents were employees of the State of Queensland;

each of the Second, Third and Fourth Respondents were a 'prescribed person' for the purposes of s 268(1) of the Public Sector Act 2022 ('the PS Act');

the Complainant's allegations against the Second, Third and Fourth Respondents arise in their capacity as employees of the State of Queensland;

while each of the Second, Third and Fourth Respondents are no longer employed by the State of Queensland, by virtue of s 268(2) of the PS Act, they cannot incur any civil liability, having regard to the provisions of s 269 of the PS Act, in respect of conduct in which they engaged in an official capacity as employees of the State of Queensland;

in circumstances where the Complainant is no longer employed by the State of Queensland, and having regard to the position formerly held by the Complainant, and because the Second, Third and Fourth Respondents are no longer employed by the State of Queensland, the only relief that the Commission may order in respect of the Complainant's allegations (pursuant to s 209 of the Anti-Discrimination Act 1991) is to make an order for compensation;^[9] and

accordingly:

it is not necessary for the Second, Third and Fourth Respondents to be respondents to the proceeding in that any compensation awarded (should the Complainant be successful in the proceeding) would be ordered by the Commission to be paid by the State of Queensland; and

there is a lack of utility in having the Second, Third and Fourth Respondents joined to the proceedings because the relief against them would have no practical effect.^[10]

[26]
The Respondents further contend that:

the issues in dispute can be heard and fully determined without the Second, Third and Fourth Respondents being joined as respondents to the proceedings because:

–the First Respondent has a sufficient interest or concern in the relief being claimed by the Complainant because the (potential) liability attaches to the First Respondent;

–the First Respondent possesses all the necessary documentary evidence in order to respond to the Complaint, and to the extent it may require the assistance of the Second, Third and Fourth Respondents in order to defend the complaint, it reserves the right to call them as witnesses.^[11]

[27]
As to the Fourth Respondent, the Respondents submit:

the basis upon which the Complaint was accepted by the QHRC against the Fourth Respondent is unknown to them;

having regard to the documents filed by the Complainant with her Complaint to the QHRC, they do not, having regard to s 136(b) of the Anti-Discrimination Act 1991, set out reasonably sufficient details to indicate the alleged contravention of the Anti-Discrimination Act 1991 by the Fourth Respondent;

there is no allegation that the Fourth Respondent had any role in the decisions as to what level of pay would be afforded to the Complainant over the period of the Complaint;

the Fourth Respondent was merely the recipient of a complaint by the Complainant about such matters and caused the complaint to be investigated; and

for the above reasons, there is no basis to join the Fourth Respondent as a party to the proceedings and she ought to be struck out from the proceedings.^[12]

The Complainant's submissions

[28]
The Complainant submits:

the Respondents' application cannot be considered or accepted without the First Respondent clearly accepting liability for the conduct of the Second, Third and Fourth Respondents as employees under s 269 of the PS Act;

if the First Respondent seeks to remove the Second, Third and Fourth Respondents from the proceeding '…to allow it to lodge a defence' that they were not acting in good faith or with gross negligence, then that needs to be disclosed;

the Commission's time should not be wasted on this application, or any future consideration of whether to strike out respondents, without the First Respondent complying with its model litigant responsibilities and indicating whether striking out the Second, Third and Fourth Respondents is to avoid liability for their conduct;

that the Second, Third and Fourth Respondents are no longer employed by the First Respondent is not relevant as to whether they were involved in the alleged unlawful discrimination against her;

if the First Respondent has had difficulty in seeking information from the Second, Third and Fourth Respondents, because they are no longer employed by the First Respondent, that supports them remaining as parties to the matter;

s 269 of the PS Act deals with the State of Queensland indemnifying relevant individuals and '… does not appear to deal with whether these individuals can still be a party to a proceeding'; and

if the Second, Third and Fourth Respondents were not parties to her complaint, their evidence would not be heard by the Commission in a hearing, and their evidence would be important as part of the conciliation process.^[13]

[29]
The Complainant further alleges that confidential agreements have been executed between the Second, Third and Fourth Respondents and the First Respondent for the First Respondent to provide them with legal representation in exchange for their cooperation.^[14] No evidence was filed in support of this allegation. While the Complainant submitted that this alleged agreement would require the Second, Third and Fourth Respondents to comply with the Code of Conduct for the Queensland Public Service,^[15] no submission was made as to why this assertion is relevant to the Complainant's resistance to the Respondents' application.

Should the Second, Third and Fourth Respondents be struck out of the proceeding?

[30]
Chapter 7, pt 1 of the PS Act deals with protection from civil liability. Section 266 provides:

266 Main purpose of part

The main purpose of this part is to give public service employees protection from civil liability for engaging in conduct in an official capacity.

This part also gives particular persons other than public service employees protection from civil liability for engaging in conduct in an official capacity.

[31]
Section 269 of the PS Act relevantly provides:

269 Civil liability of prescribed person for engaging in conduct in official capacity

A prescribed person does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity.

If subsection (1) prevents liability attaching to a prescribed person, the liability attaches instead as follows–

if paragraph (b) does not apply–to the State;

if, at the time the prescribed person engaged in the conduct, the person did so as a member of a body corporate or the governing body of a body corporate, or as a person who was employed or appointed by, or a delegate of, a body corporate–the body corporate.

…

In this section–

civil liability, of a prescribed person for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the prescribed person because of—

a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased's dependants or estate; or

a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or

an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the prescribed person.

Examples of types of liability–

a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cwlth) requiring payment of an amount to a complainant, however described, under the Act

a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper

conduct means an act or an omission to perform an act.

engage in conduct in an official capacity means engage in conduct as part of, or otherwise in connection with, a person's role as a prescribed person, including, for example, engage in conduct under or purportedly under an Act.

Example of a prescribed person engaging in conduct in an official capacity–

a prescribed person making a decision in relation to an application for a licence

[32]
The combined effect of s 267 and s 268(1) of the PS Act defines who is a 'prescribed person'. They include '… a public service employee'^[16] and '… a person employed as a ministerial staff member under the Ministerial and Other Office Holder Staff Act 2010.'^[17] The combined effect of s 267 and s 268(2) of the PS Act is that ch 7, pt 1 of the PS Act also applies to a person, who is also defined as a '… prescribed person', who was a person of a type mentioned in s 268(1) at the time the person engaged in conduct in an official capacity.

[33]
The Respondents contend that at the time of the alleged unlawful conduct of the Second, Third and Fourth Respondents:

the Second and Third Respondents were persons employed as ministerial staff members under the Ministerial and Other Office Holder Staff Act 2010;

the Fourth Respondent was a public service employee; and

the Second, Third and Fourth Respondents engaged in the alleged unlawful conduct in an official capacity.^[18]

[34]
The Complainant, in her submissions, does not dispute these assertions. That is, the Complainant does not dispute that the Second, Third and Fourth Respondents:

were prescribed persons, within the meaning of the combined effect of s 267, s 268(1)(a) and (c) and s 268(2) of the PS Act, at the time of their alleged conduct that she claims was contrary to the Anti-Discrimination Act 1991; and

engaged in that alleged conduct in an official capacity within the meaning of s 269(6) of the PS Act.

[35]
The substance of the Respondents' primary submission is that the Second, Third and Fourth Respondents should be struck out from the proceeding because, even if they engaged in the conduct alleged by the Complainant, no civil liability can attach to them.

[36]
There is force in this contention.

[37]
In McEwan v The Commissioner of Taxation of the Australian Taxation Office and Ors ('McEwan'),^[19] certain criminal charges were pursued against the plaintiff until a nolle prosequi was entered in May 2021. The plaintiff then commenced civil proceedings against a number of defendants including the State of Queensland and a police officer employed in the Queensland Police Service. Against the police officer, it was alleged he took part in the investigation of the plaintiff, was the charging officer^[20] and that, along with the State of Queensland, he engaged in conduct that amounted to a malicious prosecution.^[21] The police officer was employed under the Police Service Administration Act 1990.

[38]
Amongst a number of applications made by the defendants, one application sought an order, pursuant to r 69 of the Uniform Civil Procedure Rules 1999, that the police officer be removed as a party to the proceeding.^[22] In granting that application, Martin SJA stated:

[56]
Section 10.5 of the Police Service Administration Act 1990 relevantly provides:

"10.5 Civil liability of police officers and others for engaging in conduct in official capacity

This section applies to each of the following–

an officer;

a staff member;

a recruit;

a volunteer;

a person who, at the time the person engaged in conduct in an official capacity, was a person mentioned in any of paragraphs (a) to (d).

A person to whom this section applies does not incur civil liability for engaging, or the result of engaging, in conduct in an official capacity.

If subsection (2) prevents liability attaching to a person, the liability attaches instead to the Crown.

…

In this section–

civil liability, of a person to whom this section applies for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the person because of–

a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased's dependants or estate; or

a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or

an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the person.

Examples of types of liability–

• a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cwlth) requiring payment of an amount to a complainant (however described) under the Act

• a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to publish an apology in a newspaper

conduct means an act or an omission to perform an act.

engage in conduct in an official capacity, by a person to whom this section applies, means engage in conduct as part of, or otherwise in connection with, the person's role as an officer, a staff member, a recruit or a volunteer (as is applicable), including, for example, engaging in conduct under or purportedly under an Act.

volunteer means a person appointed by the commissioner to perform duties for the service on an unpaid voluntary basis on conditions decided by the commissioner."

[57]
Mr Holt comes within the protection of that provision. If he were to be found liable, then the liability attaches to the State of Queensland, which is already a party. There is no need for Mr Holt to be a party, and he should be removed under r 69 of the UCPR.^[23]

[39]
From a comparison of the statutory texts, it is obvious that s 269 of the PS Act has the same purpose or policy objective, but in respect of different persons, as s 10.5 of the Police Service Administration Act 1990; namely, that the identified person is protected from civil liability for engaging in conduct in an official capacity and that any civil liability instead attaches to the State of Queensland.

[40]
For the reasons I have given earlier, s 539(b)(iv) of the IR Act confers an unfettered discretion on the Commission to strike out a party to a proceeding. That is, unlike r 69 of the Uniform Civil Procedure Rules 1999, the exercise of the discretion is not dependent on the Commission finding that the party was improperly or unnecessarily included as a party.

[41]
However, in my view, for the same reasons given by Martin SJA in McEwan, it is highly certain that if the Second, Third or Fourth Respondents are found to be liable under the Anti-Discrimination Act 1991 in respect of the allegations made against them by the Complainant, no civil liability would attach to them. The civil liability would attach to the First Respondent.

[42]
For this reason, I am of the view that the Second, Third and Fourth Respondents should be struck out as parties to the proceeding in this Commission. This is because no civil liability can attach to them.

[43]
The Complainant's submissions do not persuade me otherwise.

[44]
First, s 269 of the PS Act operates independently of any acceptance of liability, by the First Respondent, for the conduct of the Second, Third or Fourth Respondents.

[45]
Secondly, the issues of good faith and gross negligence, referred to by the Complainant in her submissions, only concern the circumstance where, pursuant to s 269 of the PS Act, civil liability does attach to the First Respondent and where the First Respondent then seeks to recover a contribution from the Second, Third or Fourth Respondents.^[24]

[46]
Thirdly, it is undisputed that the Second, Third and Fourth Respondents are no longer employed in the positions relevant to the allegations made against them by the Complainant. However, those facts have no effect on the operation of s 269 of the PS Act. This is because s 268(2) of the PS Act provides that ch 7, pt 1 of the PS Act applies to a person at the time the person engaged in the conduct in an official capacity.

[47]
Fourthly, even assuming the fact suggested by the Complainant, namely, that the First Respondent has had difficulty seeking information from the Second, Third and Fourth Respondents because they are no longer employed by the First Respondent, that assumption on its own cannot be a reason, in light of the operation of ch 7, pt 1 of the PS Act, not to strike out the Second, Third and Fourth Respondents as parties to the proceeding.

[48]
Finally, it was submitted that if the Second, Third and Fourth Respondents were not parties to the proceeding, that '… would mean the Commission does not get to hear their evidence before a hearing' and that their evidence '… would be important as part of the conciliation process.'

[49]
It would be a forensic decision to be made by the First Respondent, in light of the statements of facts and contentions to be filed by the parties, as to whether or not it called the persons, currently named as the Second, Third and Fourth Respondents, to give evidence at a trial. The facts that the Second, Third and Fourth Respondents would not be parties to the proceeding does not preclude them from giving evidence at a trial.

[50]
Further, while the presence in the conciliation conference, of the persons who are currently named as the Second, Third and Fourth Respondents, may assist that process, the actual process of conciliation does not involve the conciliator making final determinations as to facts or assessing the credit of any individual person who, as a party, participates in such a conference. Again, the presence at the conciliation conference of the persons who are currently named as the Second, Third and Fourth Respondents is a matter for the First Respondent to take into account in respect of its participation in that process, having regard to the statements of facts and contentions to be filed by the parties.

[51]
For the reasons given above, it is unnecessary to consider the Respondents' other arguments.

Conclusion

[52]
For the reasons I have given, the Second, Third and Fourth Respondents should be struck out as parties to the proceeding.

[53]
I will separately issue Directions Orders for the Complainant and the First Respondent to file and serve statements of facts and contentions, for them to complete discovery, and for the listing of a conciliation conference.

Order

[54]
I make the following order:

Pursuant to s 539(b)(iv) of the Industrial Relations Act 2016, the Second, Third and Fourth Respondents are struck out as parties in Case No. AD/2024/54.

Footnotes

[1] This application was subsequently amended by the Complainant on 19 August 2024.

[2] See r 69(1)(a) of the Uniform Civil Procedure Rules 1999 which provides:

69 Including, substituting or removing party

(1) The court may at any stage of a proceeding order that–

(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to

be an appropriate or necessary party, be removed from the proceeding; or

See also r 9.08 of the Federal Court Rules 2011 which provides:

9.08 Removal of parties by Court order

A party may apply to the Court for an order that a party that has been improperly or unnecessarily

joined as a party, or has ceased to be a proper or necessary party, cease to be a party.

Note: The Court may make an order for the future conduct of the proceeding.

[3] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 39–40 (Mason J) and BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266, [129] (Crowley J).

[4] Industrial Relations Act 2016, s 3.

[5] Industrial Relations Act 2016, s 4.

[6] Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, 30 (Gleeson CJ and Handley JA) and Fagan v Minister for Corrective Services [2024] WASCA 167, [83]-[86] (Buss J) (Seaward J at [99] agreeing).

[7] [2000] HCA 41; (2000) 201 CLR 552.

[8] See Hayes v Lend Lease Darling Park One Pty Ltd [2017] NSWSC 1376, [18] (Bellew J) and Qasim v Bird & Ors [2022] NSWSC 258, [25]-[31] and [44]-[50] (Davies J).

[9] Anti-Discrimination Act 1991, s 209(1)(b).

[10] The Respondents' submissions filed on 22 November 2024 ('the Respondents' submissions') paras. 8-13.

[11] The Respondents' submissions, paras. 14-16.

[12] The Respondents' submissions, paras. 17-18.

[13] The Complainant's submissions filed on 9 December 2024 ('the Complainant's submissions'), paras. 1-6 and 9-10.

[14] The Complainant's submissions, para. 7.

[15] The Complainant's submissions, para. 8.

[16] Public Sector Act 2022, s 268(1)(a).

[17] Public Sector Act 2022, s 268(1)(c).

[18] The Respondents' submissions, paras. 8 and 10.

[19] [2022] QSC 81.

[20] Ibid [1], [2], [48] and [55].

[21] Ibid [3](a).

[22] Ibid [49] and [57].

[23] This order was not challenged on appeal: McEwan v Director of Public Prosecutions (Qld) and Anor [2022] QCA 231; (2022) 304 A Crim R 126.

[24] See Public Sector Act 2022, s 269(3).

Editorial Notes

Published Case Name:
Graafland v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2)
Shortened Case Name:
Graafland v State of Queensland (Department of the Premier and Cabinet) (No. 2)
MNC:
[2025] QIRC 34
Court:
QIRC
Judge(s):
Merrell DP
Date:
06 Feb 2025

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Agar v Hyde	View on:JADE(2000) 201 CLR 552	2 citations Jump To Cite 1 - (2000) 201 CLR 552 Cite 2 - (2000) 201 CLR 552
Agar v Hyde	View on:JADE[2000] HCA 41	2 citations Jump To Cite 1 - [2000] HCA 41 Cite 2 - [2000] HCA 41
BZN v Chief Executive, Department of Children, Youth Justice and Multicultural Affairs	[2023] QSC 266	2 citations Jump To Cite 1 - [2023] QSC 266 Cite 2 - [2023] QSC 266
Fagan v Minister for Corrective Services	View on:JADE[2024] WASCA 167	2 citations Jump To Cite 1 - [2024] WASCA 167 Cite 2 - [2024] WASCA 167
Hayes v Lend Lease Darling Park One Pty Ltd	View on:JADE[2017] NSWSC 1376	2 citations Jump To Cite 1 - [2017] NSWSC 1376 Cite 2 - [2017] NSWSC 1376
McEwan v Commissioner of Taxation	[2022] QSC 81	2 citations Jump To Cite 1 - [2022] QSC 81 Cite 2 - [2022] QSC 81
McEwan v Director of Public Prosecutions	[2022] QCA 231	2 citations Jump To Cite 1 - [2022] QCA 231 Cite 2 - [2022] QCA 231
Minister for Aboriginal Affairs v Peko Wallsend Ltd	View on:JADE(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	View on:JADE[1986] HCA 40	2 citations Jump To Cite 1 - [1986] HCA 40 Cite 2 - [1986] HCA 40
Qantas Airways Ltd v Gubbins	View on:NSWLR(1992) 28 NSWLR 26	2 citations Jump To Cite 1 - (1992) 28 NSWLR 26 Cite 2 - (1992) 28 NSWLR 26
Qasim v Bird & Ors	View on:JADE[2022] NSWSC 258	2 citations Jump To Cite 1 - [2022] NSWSC 258 Cite 2 - [2022] NSWSC 258

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Fletcher v State of Queensland (Queensland Police Service) & Ors	[2025] QIRC 234	2 citations

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Graafland v State of Queensland (Department of the Premier and Cabinet) (No. 2)[2025] QIRC 34