//
[2018] QIRC 115
General information, not legal advice.
Queensland Industrial Relations Commission
2018-09-05
O'Connor DP
Original judgment source is linked above.
The applicant's attempt to gain support from a former Mayor and involve the former Mayor in strategising about the case with existing councillors is plainly a matter which goes to whether the applicant can be reinstated to the position of CEO.[15]
[35] The 3rd to the 9th respondents have not directed me to any evidence to support that contention. The text messages do not in my view support the contention that the applicant has actively sought out Ms Parker in order to gain her support. Nor do I think that the text messages suggest that Ms Parker has been "...strategising about the case with existing councillors".
[36] Both Ms Parker and Mr Freeman are private citizens and as such are free, within the bounds of the law, to make comment about the respondents. They are entitled to express their personal view. Ms Parker was a onetime supporter of the 2nd respondent. She now expresses her disappointment. I do not accept that it is for the applicant to publically disavow herself of the comments of Mr Freeman and Ms Parker.
[37] Both Mr Freeman and Ms Parker are not parties to the litigation and neither have an active or current involvement with the 1st respondent. At the highest, Mr Freeman has apparently expressed a desire to run for office at the next local government election.
[38] It is not immediately clear to me how the text messages between Cr Koranski and Ms Parker, has any evidential materiality to the applicant's claim for reinstatement and the respondents' opposition to it.
[39] The 1st respondent has taken the position in its instructions to support the decision to terminate the employment of the applicant and to oppose any application to have that decision set aside. However, there is merit in the submission of the applicant that should the Commission determine that the decision was unlawful then the 1st respondent might not maintain its current position and, in those circumstances, may adopt a different stance and the issue of reinstatement may become irrelevant.
[40] In Associated Dominions Assurance Society Pty Ltd v. John Fairfax & Sons Pty Ltd, Owen J, with whose judgment the other members of the Full Court agreed:
A 'fishing expedition' in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.[16]
[41] What is requested in category 1(a), (b) and (c), is in my view, a purely speculative investigation. A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.
[42] I am of the view that the request as set out in 1(a), 1(b) and 1(c) is properly characterised as a fishing expedition. The 3rd to 9th respondents, not knowing what will be produced; not knowing whether there is anything relevant in any documents which may be produced; and not aware if it is reasonably likely to add, in any relevant way, to the evidence in the proceedings asks the Commission to allow it to "drag the pool"[17] in the hope that something of the description in 1(a),(b) or (c) may be discovered.
[43] I do not accept that the request in respect of either Mr Freeman or Ms Parker is relevant to the issue of the applicant's reinstatement. I am unconvinced that an order should be made requiring the applicant to undertake discovery in relation to either person on the off-chance that something might show up based upon some relatively weak inference.
[44] The respondents must demonstrate that the document or category of documents offer a real probability of evidential materiality in the sense that it must be a document or category of documents of which, in the ordinary way, can be expected to yield information of substantial evidential materiality to the pleaded claim and the response to it. If it cannot be demonstrated that the document or category of document is clearly connected to the issues in the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, the application concerning categories 1(a), (b) and (c) should be dismissed.
[45] The respondents contend that the applicant seeks to rely on the significant media attention to justify a claim for reinstatement and damages. The 3rd to 9th respondents argue, somewhat unconvincingly in my view, that in the event of a successful application, the extent to which the applicant has attempted to increase media attention surrounding her dismissal goes directly to the question of damages the applicant might receive based on the notoriety of her case. Moreover, it is relevant if the applicant is going to claim that as a consequence of the media attention she ought to be reinstated because she would be unable to secure a position elsewhere.
[46] With respect to the media coverage, reference is made to pages 13, 19 and 45 of the affidavit of Aaron Bradford. The first of the three articles by Ms Judith Kerr to which I was referred, has the by-line "CCC officers return to Logan council, councillors in turmoil". The second article written by Ms Kerr on 13 February 2018 is titled "Outspoken councillors fears reprisal in planning committee restructure." It makes only a passing reference to the applicant and her dismissal. The final article referred to by the 3rd to 9th respondents is headed "Dumped Logan CEO Sharon Kelsey attends Mayor's Gala Ball". The applicant is photographed with Councillors Koranski, Power and Raven and makes reference to her rubbing shoulders with the "...glitterati of Logan City - and some of those who sacked her - at the Mayor's Annual Ball." However, the main focus of the article is to acknowledge that it was a charity fundraiser for a terminally ill 18 month old.
[47] It is also contended that the text messages support the view that the applicant has been in contact with Ms Kerr. It is argued that it is relevant to the exercise of the discretion to know whether or not "she [Ms Kelsey] was the author of that misfortune".[18] I disagree. The dismissal of the applicant, the involvement of the Crime and Corruption Commission in the affairs of the 1st respondent, the subsequent standing down of the Mayor and a councillor have, of themselves been sufficient to provoke media attention.
[48] Again, the request is based on mere speculation and I am not persuaded that an order for disclosure ought to be made.
[49] The applicants contend that the documents in category 1(e) and (f) are directly relevant to matters raised in the proceedings. In paragraph [118] of the affidavit of the applicant dated 11 January 2018 it states: "I spent the next few weeks documenting my concerns."
[50] I accept that the 3rd to 9th respondents are entitled, if not already disclosed, to documents referred to in paragraph [118] of the applicant's affidavit of 11 January 2018.
[51] In reference to 1(f), the 3rd to 9th respondents seek documents which relate to meetings at which it is suggested that one or more of the 3rd to 9th respondents took action which was either adverse action or they behaved in a manner which suggested that they were unhappy with her. In particular, the 3rd to 9th respondents make reference to paragraph 14.4 of the Further Amended Application filed on 10 April 2018 and paragraphs [59] to [63] of the applicant's affidavit of 12 March 2018 to support their contention. I am of the view that the 3rd to 9th respondents are entitled to documents which describe the meetings and discussions alleged to have been witnessed or participated in by the applicant as pleaded in her Further Amended Application, or as contained in the applicant's affidavit of 12 March 2018 as filed in these proceedings.
[52] It goes without saying that it is in the interests of the proper administration of justice that all relevant information is disclosed at an early stage in proceedings to assist the parties to assess the strengths and weaknesses of their respective cases.
[53] The current approach within the Commission for discovery as expressed in Rule 46 reflects the Peruvian Guano test or "train of inquiry" approach. This test, as noted above, enables documents to be discovered that are not directly relevant but that may fairly lead the parties to a train of inquiry that would advance their own case or damage their adversary's case.
[54] In my view, the test ought to be narrowed to reflect modern practice so as to require discovery of documents that are directly relevant to the issues in dispute. The advantages are that such a test reflects the approach in the UCPR and will assist to reduce the time and cost involved in the discovery process. Importantly in this jurisdiction, it is likely to assist in focusing the parties' minds on the parameters of discovery and to narrow the issues to be determined by the Commission at the hearing.
[55] I wish to emphasis again the comments made by me at the hearing of this application concerning the desirability of having this matter progress expeditiously to hearing.
[56] In this regard, I make reference to the comments of Young J in Field v Inglis,[19] where it was observed:
It is a little unsatisfactory having to make a determination of this sort of matter on an interlocutory basis because sometimes the full facts and circumstances do not come to light until the final hearing. However, it is also in the interests of everybody to keep costs and expenses to a minimum in litigation and to get the real questions between the parties on for trial as soon as possible.
[57] I respectfully endorse the comments of his Honour Justice Young and impress upon all parties to move expeditiously to a final hearing of this matter.
[58] This case is a good example of the practical difficulty that a Court or Tribunal faces to resolve a contest as to an order sought for further disclosure based on a highly contentious factual matrix.[20]
[59] Reinstatement is one of the orders which can be made under s 314 of the Industrial Relations Act 2016. The 3rd to the 9th respondents argue that the issue of the applicant's reinstatement should her application be successful is a live issue. The issue underpins this application.
[60] The 3rd to 9th respondents have raised the issue as to whether reinstatement would be impracticable. Whilst the question of whether the applicant should or should not be reinstated is a matter for determination at a later stage it is worth remembering the reasoning of de Jersey P in Auto Logistics Pty Ltd v Kovacs, where his Honour considered the meaning of word "impracticable". He wrote:
That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible.[21]
[61] For the reasons advanced above, I am not persuaded to exercise my discretion to grant the application for discovery in respect of categories 1(a), (b), (c), or (d). In respect of categories 1(e) and (f), I am of the view that they ought to be the subject of an order for discovery. Those two categories are relevant to an allegation or allegations in issue in the pleadings.
[3] Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5, 3 Per Bechly C; QNU v Sundale Garden Village, Nambour [2004] QIRComm 2312, 6.
[4] Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.
[5] [2016] QIRC 75, [4].
[6] Murrays Australia Ltd v Training Recognition Council and Others [2002] QIC 20; (2002) 170 QGIG 11, 12.
[7] Henderson Greetings Pty Ltd AND Bernadette Andrews [1999] QIRComm 5; (1999) 160 QGIG 47, 48.
[8] Compagnie Financiere du Pacifique v. Peruvian Guano Co. (45) (1882) 11 QBD 55, 63_; Queensland Nurses'_
Union of Employees AND Sundale Garden Village, Nambour [2004] QIRComm 212; (2004) 177 QGIG 861, 864 citing Mulley v
Manifold [1959] HCA 23; (1959) 103 CLR 341, 345; Trade Practices Commission v CC (New South Wales) Pty Ltd [1995] FCA 1418; (1995) 131 ALR 581.
[9] Patrick Stevedores No. 1 Limited & Anor v MUA & Ors Print P8680.
[11] Murrays Australia Ltd, op cite, citing Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125.
[13] Affidavit of Sharon Kelsey sworn on 18 May 2018.
[14] Paragraph 28 of the Affidavit of Aaron Raymond Bradford sworn on 18 April 2018.
[16] (1952) 72 WN 250, 254.
[17] NSW Crime Commission v Hawes (1992) 74 A Crim R 199, James J (at 203).
[19] unreported, 8 February 1994, SCNSW, Equity Division.
[20] See: Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 2) [2015] QSC 124 per Jackson J.
Kelsey
Logan City Council & Ors
Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 2) [2015] QSC 124
Murrays Australia Ltd v Training Recognition Council and Others [2002] QIC 20; (2002) 170 QGIG 11
Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No) [1995] FCA 1418
Western and Parer v State of Queensland (No.4) [2016] QIRC 075
(1959) 103 CLR 341
(1995) 131 ALR 581