Harris v State of Queensland

Brett Reynolds v Workers' Compensation Regulator & Ors [2019] QIRC 140

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Watton v TAFE Queensland [2021] QIRC 268

Mr P Zielinski instructed by MinterEllison for the Respondent

[1] On 9 April 2025, Ms Robyn Harris ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[2] On 9 April 2025, the Applicant also filed an application for a stop-bullying order.

[3] On 3 June 2025, the Respondent filed an application to join proceedings for matters GP/2025/13 and B/2025/38 pursuant to r 98 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') and that the Respondent be granted leave to be legally represented in the combined proceeding pursuant to s 530(1)(e)(ii) of the IR Act

[4] On 11 June 2025, a telephone mention was held to discuss the orders sought by the Respondent with parties agreeing that both matters would be considered following a further conciliation being held for B/2025/38.

[5] A conference was held on 4 August 2025 before Industrial Commissioner O'Neill for matter B/2025/38. The matter did not settle at conference and consequently it will proceed to hearing and determination.

[6] A decision granting the Respondent leave to be legally represented in matter GP/2025/13 was released on 10 September 2025.

[7] The application to have matters GP/2025/13 and B/2025/38 ('the matters') joined was heard on 28 January 2026.

[8] Rule 98 of the IR Rules provides an express power to join proceedings:

(1) A party to a proceeding before the court of commission may apply to the court or commission for the proceeding to be joined with another proceeding.

(2) The court or commission may order 2 or more proceedings to be joined if it considers-

(a) substantially the same question is involved in the proceedings; or

(b) the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or

(a) for a written order joining the proceedings to be made; or

(4) If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding.

[9] The Respondent seeks to have the matters joined on the following grounds:

• Whilst the matters will be determined based on different legal tests, they raise substantially overlapping (and extensive) questions of fact;

• There is likely to be a significant overlap in the witnesses to be called in both matters;

• If the matters proceed separately, there is a prospect of multiple appeals being raised by the parties;

• If the matters are combined, there is likely to be a significant time saving in respect of the determination of all the issues raised by the Applicant; and

• If the matters are not combined, the State will be put to significant prejudice and costs in defending two substantive applications that raise significantly overlapping factual matters. Additionally, any witnesses in the two matters would potentially be inconvenienced by having to be called to give evidence, and being subject to cross-examination, on two separate occasions.

[10] The Applicant's objections to the joinder application are summarised as follows:

• Conflating the distinct legal tests risks confusion, potentially disadvantaging the Applicant, particularly given the burden of proof varies between the two matters;

• Joinder will increase the risk of procedural unfairness and prejudice to the Applicant;

• The task of navigating two distinct legal regimes within a single proceeding would unduly burden a self-represented Applicant, exacerbating the inherent disparity in legal resources;

• By joining the matters, the alleged perpetrators would be afforded legal representation within a process that should instead prioritise corrective measures and the protection of those affected by bullying;

• The risk of competing findings of fact and on credibility can be managed to ensure consistency of findings where appropriate;

• Potential inconvenience of witnesses does not justify compromising the integrity of the separate legal process or the parties' rights; and

• Multiple legal frameworks increase the challenges and pressures on an unrepresented applicant requiring her to respond to detailed legal arguments and overlapping legal standards without the benefit of legal expertise, where the Respondent is supported by a legal team, counsel and considerable organisational resources.

[11] Rule 98 of the IR Rules confers upon the Commission a broad discretion to join matters in circumstances where:

• substantially the same question is involved in the proceedings; or

• the decision in one proceeding is likely to determine or seriously impact the other proceedings; or

[12] In Brett Reynolds v Workers' Compensation Regulator & Ors,[1] Vice President O'Connor considered the principles applicable to an application for joinder as identified by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd, to assist in determining whether the discretion should be exercised:[2]

The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:

1. Are the proceedings broadly of a similar nature?

1. Are there issues of fact and law common to each proceeding?

1. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

1. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

1. Is there a prospect of multiple appeals with substantial delays if the proceedings are tried at the same time, compared with each proceeding being tried separately?

1. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

1. Is one proceeding further advanced in terms of preparation for trial than the others?

1. Are there parties to one or some only of the proceedings who will be inconvenienced if all the proceedings are tried at the same time?

[13] I will consider the factors above, where relevant, to the factual circumstances of the applications proposed to be joined.

[14] The General Protections matter ('GP matter'), requires the Applicant to demonstrate that the Respondent took adverse action by injuring her in her employment, altering her position to her prejudice, or discriminating against her in her employment.

[15] The Bullying matter requires the Applicant to demonstrate that an individual or group of individuals has engaged in repeated unreasonable behaviour and such behaviour creates a risk to the health and safety of the Application. Section 272 of the IR Act will not apply to circumstances involving reasonable management action carried out in a reasonable manner.

[16] The two matters involve different legal tests and Respondent in one of the matters is subject to a reverse onus. The GP matter involves a reverse onus regarding the motivation for any adverse action, however, no such reverse onus operates in the Bullying proceedings.

[17] Despite the different legal tests, I consider that the proceedings are broadly of a similar nature given that determination of both matters will require consideration of substantially similar facts to determine whether the alleged conduct occurred and if so, the motivation for the conduct.

Are there issues of fact and/or law common to each proceeding?

[18] There are common issues of fact to each proceeding, with many of the actions pleaded in the Applicant's Statement of Facts and Contentions ('SOFC') for the GP matter also pleaded in the SOFC for the Bullying matter.

Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

[19] The Respondents have outlined the witnesses that they expect to call in both proceedings, contending that if the applications are not joined, those witnesses will be required to give evidence and undergo cross-examination in two separate hearings regarding substantially similar factual matters.

[20] The Applicant submits that it is premature to consider joining the matters partly on the basis that the witness lists have not yet been filed.

[21] After considering the SOFC documents filed in each matter, it appears likely that a number of witnesses will be required to give evidence in both matters. In my view it is undesirable to place witnesses in the position of undergoing cross-examination in separate hearings with the prospect of competing findings of fact and credibility.

Is there a proposal of multiple appeals with substantial delays if the proceedings are not tried at the same time?

[22] The Respondent has indicated that if matters proceed separately there is a prospect of multiple appeals being raised by the parties.

Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

[23] On the basis that there is a significant overlap on matters of fact across the matters, I am satisfied that there will be a substantial saving of time if proceedings are not held separately.

Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

[24] The significant overlap of the factual allegations pleaded in both matters indicates that joinder will not create difficulties in terms of trial management. There is no indication that there will be any issues arising from the admissibility of evidence in a joined proceeding relating to both matters. I do note however, the Applicant's submissions relating to trial management difficulties given the differing onuses and the Respondent's access to legal representation and resources to assist in managing these issues.

Is one proceeding further advanced in terms of preparation for trial than the others?

[25] There is no material difference between the matters with respect to the preparedness for trial.

Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

[26] The same parties are involved in both proceedings and will suffer no inconvenience if the matters are tried at the same time.

Rule 98 - IR Rules

[27] In considering r 98, there is a significant overlap in terms of the factual allegations, however the different legal tests involved indicate that it is not 'substantially the same question' involved in the proceedings. I do however consider that the decision in one proceeding is likely to seriously impact the other proceeding based on the overlap in factual matters.

[28] The final consideration in r 98 is whether joining the proceedings 'is otherwise appropriate or desirable'.

[29] The difficulty with this application is that it involves one matter in which leave has been sought and granted for the Respondent to be legally represented in accordance with s 530(1)(e)(ii) (the GP matter), and one matter in which leave has not been sought or granted for a party to be legally represented (the Bullying matter).

[30] Section 530(1)(e)(ii) provides that a party may be represented by a lawyer in the Commission where all parties consent or, for a proceeding relating to a matter under a relevant provision, the Commission gives leave.

[31] Section 530(7) defines a 'relevant provision' as a proceeding before the Commission, other than the full bench, as meaning chapter 8; or s 471; or chapter 12, part 2 or 16.

[32] The relevant provisions under which the Bullying matter is brought are contained within chapter 7 of the IR Act. The Respondent submits that the Bullying matter has the character of being a proceeding relating to a matter under chapter 8[3] because of 'the sharp factual overlap' and in that regard the same factors that weighed in favour of leave to be legally represented being granted in the GP matter apply to the Bullying matter.

[33] The above submission appears to be directed at considering that legal representation for the GP matter is not an impediment to joinder on the basis that leave would also be granted for the Bullying matter. The difficulty with that submission is that this application is to address the joinder request and is not an application to grant legal representation in the Bullying matter.

[34] The Respondent refers to Watton v TAFE Queensland ('Watton'),[4] where leave to be legally represented was granted following the joinder of a Bullying and a GP matter. The decision to join the matters in Watton was made when parties had not been granted leave to be legally represented in the GP matter. In those circumstances, consideration of the implication of parties being legally represented in one matter and not the other was not necessary when determining the joinder application.

[35] In the ordinary course, standalone Bullying matters are not matters 'under a relevant provision' for the purposes of ss 530(1)(e) and 530(7) of the IR Act and would not generally be the subject of a grant of leave for legal representation. As I understand the Respondent's submission, the similar factual claims may enliven the possibility of legal representation on the basis that the Bullying matters 'relates' to a matter under a relevant provision, that is, to the GP matter under chapter 8 of the IR Act. Whilst that may be an argument with respect to legal representation for a Bullying matter, it is not one that may be determined via a joinder application.

[36] The consequence of joining the matters is that the Respondent will have legal representation for the joined proceeding in circumstances where leave has not been granted for the Respondent to be represented in the Bullying matter. Joining the matters would provide an effective grant of legal representation for the Bullying matter and in my preliminary view such an order is beyond my power given the limitations of s 530(1)(e)(ii).

[37] It is unfortunate that these matters will not be joined given the potential savings in time, cost and minimisation of inconvenience to witnesses. However, for the reasons outlined above, to make such an order would in my view be acting beyond jurisdiction given the consequential legal representation for the Bullying matter.

[38] After consideration of the relevant factors and the submissions of parties to both proceedings, I decline to exercise my discretion to join matters GP/2025/13 and B/2025/38.

1. The application that GP/2025/13 be joined with B/2025/38 is dismissed.

[1] [2019] QIRC 140, 5.

[2] [2009] FCA 699, [11].

[3] For the purposes of the Industrial Relations Act 2016 (Qld) s 530(1)(e) and s 530(7).

[4] [2021] QIRC 268.