Hitchcock v State of Queensland

Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, cited

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, cited

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, followed

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, cited

Flannery v Halifax Estate Agencies Ltd [2003] 1 WLR 377, followed

Hafele Australia Pty Ltd v Maggbury Pty Ltd [2000] QCA 397, cited

Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258, related

Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4) [2024] QIRC 270, related

Mann v Cornell (1999) 201 CLR 1; [1999] HCA 66, cited

Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37, cited

Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, followed

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, followed

G R Allan for Elizabeth Hitchcock, the appellant in appeal C/2024/44 and the respondent in appeal C/2024/39

C J Murdoch KC with J Marr for the State of Queensland, the respondent in appeal C/2024/44 and the appellant in appeal C/2024/39

C Christensen, Crown Solicitor for the State of Queensland

• [1] Both parties to the proceedings in the Queensland Industrial Relations Commission (QIRC) have appealed interlocutory orders made by Deputy President Hartigan concerning disclosure. Elizabeth Hitchcock is the applicant in the proceedings in the QIRC and the State of Queensland is the respondent.

• [2] Ms Hitchcock was employed by the State in the Office of Industrial Relations (OIR). She occupied the position of Chief Adviser Engineering Services Specialised Health and Safety Services. She commenced that employment on 3 December 2018.
• [3] Ms Hitchcock's conduct came under question and an investigation report was prepared by Mr Gavin Gleeson, dated 21 March 2023. That report concerned four matters of complaint and Mr Gleeson found that all were capable of being substantiated.
• [4] Various procedures then followed. It is only necessary to refer to the following.
• [5] Based on Mr Gleeson's report, Ms Meghan Barry, who was then the Deputy Director of the OIR, issued a show cause notice to Ms Hitchcock directing her to show cause why disciplinary action should not be taken against her.
• [6] Ms Hitchcock made submissions in response to the show cause notice, but on 24 August 2023 Mr Peter McKay, who by that stage was the Deputy Director General of the OIR, issued a further show cause notice. There, he advised Ms Hitchcock, amongst other things, that he was considering terminating her employment.
• [7] On 5 October 2023 Mr McKay terminated Ms Hitchcock's employment.
• [8] On 26 October 2023 Ms Hitchcock filed an application in the QIRC seeking compensation, including for loss of superannuation entitlements.[1] That application alleged that adverse action had been taken against her contrary to part 8 of the Industrial Relations Act 2016. Ms Hitchcock's application for compensation is listed for hearing before the QIRC on 28 April 2025. The interlocutory disputes, which are the subject of the appeals, concerned disclosure of documents which were relied upon by Mr McKay in making his decisions to issue a further show cause notice and to terminate Ms Hitchcock's employment.
• [9] It is common ground that Mr McKay considered two briefing notes: one dated 11 July 2023 and one dated 16 August 2023. After considering the first briefing note, Mr McKay directed his subordinates to obtain advice from Crown Law as to the disciplinary process he ought to follow.
• [10] The State:

(a) disclosed a redacted copy of the first briefing note;

(b) disclosed a redacted copy of the second briefing note; but

(c) claimed legal professional privilege over the Crown Law advice and did not disclose it.

• [11] The redactions to the two briefing notes were said by the State to be justified by valid claims for legal professional privilege.
• [12] Ms Hitchcock made an application seeking disclosure of the Crown Law advice and unredacted copies of each of the briefing notes.
• [13] That application was heard by the Deputy President on 8 August 2024. On 7 November 2024, the QIRC ordered that unredacted copies of the two briefing notes be disclosed, but that legal professional privilege was validly claimed by the State in relation to the Crown Law advice. Ms Hitchcock's application was dismissed, as it related to that advice.[2]
• [14] The two briefing notes, duly unredacted, were disclosed. Relevantly, the first briefing note stated:

"On 8 June 2023, Crown Law advised that, in their view, having regard to the nature and seriousness of the allegations against Ms Hitchcock, it would be open to a decision-maker to determine to commence a disciplinary process in respect of them."

• [15] It can be seen that the first briefing note refers to a Crown Law advice dated 8 June 2023.
• [16] The second briefing note relevantly stated:

"You considered the response submitted by Ms Hitchcock and directed Crown Law advice be sought and provide assistance in the drafting of a Show Cause Notice - Decision on Disciplinary Finding and Proposed Disciplinary Action, proposing a disciplinary penalty of termination of employment.

During the considerations in providing advice, Crown Law sought clarifying information from the investigator into this matter while considering the responses submitted by Ms Hitchcock. You will need to consider the information that has been provided separately to Crown Law by the Investigator which they relied on in providing settled advice (Attachment 2).

On 2 August 2023, Crown Law provided advice for your considerations (Attachment 3). You should consider that advice in your decision making. In their advice, Crown Law included a recommendation that although the OIR Human Resource Delegation Manual October 2020 provided delegation for you to continue a disciplinary process toward Hitchcock, through an abundance of caution, you should consider approaching the Director-General, Department of Education to provide powers through the execution of an instrument of delegation to make disciplinary findings in relation to Ms Hitchcock which would ensure that there can be no question that you hold the necessary delegation to make the findings set out in the draft letter drafted by Crown Law."

• [17] It can be seen that a second advice from Crown Law is identified in the second briefing note. It is an advice dated 2 August 2023. Also identified is a document prepared by an investigator which was apparently provided to Crown Law.
• [18] Ms Hitchcock sought disclosure of the two Crown Law advices and the investigator's document. When that request was refused, she made an application to the QIRC to force the issue. On 19 November 2024 the QIRC ordered that:

(a) the State disclose the Crown Law advice dated 2 August 2023;

(b) Ms Hitchcock's application as it relates to the advice of 8 June 2023 be dismissed; and

(c) Ms Hitchcock's application as it relates to the investigator's document be dismissed.[3]

• [19] The State appealed the order of 7 November 2024, which compelled it to produce unredacted copies of the two briefing notes, and also appealed against the order made on 19 November 2024, that it disclose the advice of Crown Law dated 2 August 2023.
• [20] The Crown sought to discontinue its appeal, but Ms Hitchcock filed an objection to the discontinuance. On the hearing before me on 27 February 2025 it became apparent that Ms Hitchcock's only objection to the discontinuance of the State's appeal was that any discontinuance should be conditional upon the State paying her costs of that appeal. After some argument, the parties agreed that the State's appeal should be dismissed, and I should determine the question of the costs of the State's appeal.
• [21] Ms Hitchcock, through her solicitors, had filed a detailed submission seeking costs on an indemnity basis.[4] Both parties were content for the State to file written submissions in response and have me consider the question of costs on the written submissions and without further oral hearing. I shall follow that course.
• [22] On 14 March 2025, the State filed its submissions on the costs of its appeal.
• [23] Given the fact that the principal application is listed for hearing in about a month's time, I am anxious to deliver my decision on Ms Hitchcock's appeal. I will therefore dismiss the State's appeal and reserve the costs question to a later date.
• [24] Ms Hitchcock's application to appeal alleges three grounds. However, only ground 3 is pressed. Ground 3 is in these terms:

"3. By failing to give adequate reasons explaining why the principles relied on by the applicant from Hafele (at paragraphs 32 to 36 of the Applicant's Outline of Submissions filed 15 November 2024 - "Applicant's Outline" and Allen (at paragraphs 37 to 46, Applicant's Outline) were rejected or, alternatively, did not apply to the uncontradicted and unchallenged evidence adduced by the applicant, such that privilege had not been waived by the privilege holder in respect of:

(a) the 8 June 2023 legal advice;

(b) Attachment 2."

• [25] The reference in ground 3 to "Hafele" is a reference to the Court of Appeal's decision of Hafele Australia Pty Ltd v Maggbury Pty Ltd.[5] The reference to "Attachment 2" is a reference to the investigator's document.

• [26] The QIRC found that both the Crown Law advice of 8 June 2023 and the investigator's document attracted legal professional privilege. There is no complaint on appeal as to that finding. The QIRC considered that the question was whether the privilege attaching to those documents had been waived. That was, with respect, clearly the real issue before the QIRC.
• [27] It is well-established that legal professional privilege may be either expressly or impliedly waived, and that an implied waiver occurs where "the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect."[6] Ms Hitchcock's submission to the QIRC was that the disclosure of the unredacted briefing notes constituted a waiver of legal professional privilege over the advice of 8 June 2023 and the investigator's document, because the briefing notes (in their unredacted form) made reference to both documents.
• [28] The State submitted, amongst other things, that the disclosure of the unredacted briefing notes was effected in compliance with the orders of the QIRC of 7 November 2024. Therefore, it was submitted, the act of disclosure could not constitute a waiver of legal professional privilege vested in the State. Ms Hitchcock sought to meet that submission with two arguments.
• [29] The first submission of Ms Hitchcock to the QIRC was that by not appealing the order of 7 November 2024 the State had accepted the correctness of that order, and must therefore suffer any consequences of compliance. It was submitted that followed from the judgment of Diplock LJ in Fidelitas Shipping Co Ltd v V/O Exportchleb.[7]
• [30] Secondly, Ms Hitchcock submitted, in reliance upon Hafele,[8] that in some circumstances the failure of a party to take steps to ensure the documents do not come into the public domain may constitute a waiver of the legal professional privilege attaching to those documents. The two briefing notes were exhibited to affidavits filed in the QIRC and were also referred to in written submissions. It followed then, Ms Hitchcock submitted, that as the State made no attempt to prevent the filing of the affidavits and submissions, legal professional privilege had been waived (the Hafele submission).
• [31] Ms Hitchcock's only ground of appeal is that the Deputy President failed to give adequate reasons for dismissing the Hafele submission. It is true that the Deputy President does not refer to the Hafele submission and does not specifically explain why she has rejected it.
• [32] However, when the judgment is properly understood it can be seen that the Hafele submission did not arise for consideration given findings that were made by the Deputy President.
• [33] There were no submissions and indeed no evidence that the State had failed to prevent the advice of 8 June 2023 or the investigator's document entering into the public arena. Neither document was exhibited to affidavits and the contents of neither document were replicated in submissions.
• [34] What was put into the public domain were the unredacted briefing notes. The briefing notes referred to the advice of 8 June 2023 and the investigator's document. If the briefing notes, by referring to the advice and the investigator's document, did not waive legal professional privilege over those two documents then privilege was maintained no matter how the briefing notes came to be disclosed.
• [35] The Deputy President, in the judgment of 19 November 2024, referred to various legal principles and then turned to consider whether there had been waiver of the privilege in relation to the two documents now in question, being the Crown Law advice dated 8 June 2023 and the investigator's document.
• [36] In relation to the advice of 8 June 2023, the Deputy President stated:

"The reference to the advice under the heading "Key Issues" does no more than factually state that Crown Law provided an advice about the matter in the terms described on 8 June 2023. There is no evidence to support a conclusion that there has been an implied waiver of legal professional privilege with respect to the Crown Law advice dated 8 June 2023. Consequently, the applicant's application with respect to the Crown Law advice of 8 June 2023 is dismissed."[9]

• [37] In relation to the investigator's document, the Deputy President held:

"For the same reasons with respect to my determination of the matters under the heading "Key Findings", the mere reference to that material being provided and in the absence of there being any evidence that it was considered and relied on by Mr McKay, I do not consider that the privilege with respect to the documents referred to as "Attachment 2" has been waived."[10]

• [38] While, when judicial power is exercised, reasons must (subject to statutory provisions to the contrary) be given,[11] there are no (subject to statutory provisions to the contrary) set rules which prescribe the contents of the reasons.[12] The reasons, though, must be of such detail as to fulfill the function of judicial reasons[13] in light of the issues which arise for judgment in the particular case.[14]
• [39] Relevantly here, the function of reasons is to show the basis of the Deputy President's decision[15] that legal professional privilege had not been waived over the Crown Law advice and the investigator's document.
• [40] As the analysis above shows, Ms Hichcock's argument was that privilege was waived over the advice and the investigator's document not by disclosing or allowing those documents to be published but by disclosing or allowing to be published the unredacted briefing notes. Consequently, her case depended on two things being found in her favour, namely:

(a) the unredacted briefing notes, if disclosed or allowed to be published, constituted a waiver of legal professional privilege over the Crown Law advice and the investigator's document (the first issue); and

(b) the State did disclose or publish the briefing notes (the second issue).

• [41] The Hafele submission relates only to the second issue. However, if the first issue is not found in Ms Hitchcock's favour then the second issue does not arise because it becomes irrelevant whether the briefing notes were disclosed or allowed to be published.
• [42] The Deputy President has explained why she found the first issue against Ms Hitchcock.[16] The only ground of appeal which Ms Hitchcock presses does not challenge those findings. The Deputy President's order dismissing Ms Hitchcock's application as it relates to the advice of 8 June 2023 and the investigator's document is dependent upon those findings which are conclusive against her. It follows then that:

(a) the second issue did not arise;

(b) there was no reason to resolve it, let alone give reasons explaining how it had been resolved; and

(c) the basis of the Deputy President's decision is adequately explained by the reasons she gave.

• [43] The appeal must be dismissed. Orders should be made for the exchange of written submissions on the question of costs of the appeal.

1. Appeal C/2024/39 is dismissed.
2. The question of costs of appeal C/2024/39 will be determined on a later date upon the written submissions received and a without further oral hearing.
3. Appeal C/2024/44 is dismissed.
4. By 4.00 pm on 28 March 2025 the State shall file and serve:
   1. An outline of submissions on the question of costs of appeal C/2024/44.
   2. Any material in support of the submissions.
5. By 4.00 pm on 4 April 2025 Ms Hitchcock shall file and serve:
   1. An outline of submissions on the question of costs of appeal C/2024/44.
   2. Any material in support of those submissions.
6. Each party in appeal C/2024/44 shall have leave to file and serve an application for leave to make oral submission on costs by 4.00 pm on 11 April 2025.
7. In the event no application for leave is made, the question of costs of appeal C/2024/44 will be determined upon a consideration of the written submissions and without oral submissions.

[1] Industrial Relations Act 2016, s 314.

[2] Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258.

[3] Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4) [2024] QIRC 270.

[5] [2000] QCA 397.

[6] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [45]; See also, Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; and Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 497-498.

[7] [1966] 1 QB 630 at 642.

[8] [2000] QCA 397.

[9] Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4) [2024] QIRC 270 at [9].

[10] Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4) [2024] QIRC 270 at [32].

[11] Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [57] and the cases there cited.

[12] Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381-382.

[14] Makita at [59]; Wainohu v New South Wales (2011) 243 CLR 181 at [56]; followed in DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [32].

[15] Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 279.

[16] Culminating in the passages at paragraphs [36] and [37] of these reasons.