[2023] ICQ 25
General information, not legal advice.
Industrial Court of Queensland
2023-11-01
Davis J
Original judgment source is linked above.
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - where the appellant made claims against her employer and other employees of discrimination - where the complaints were referred to the Queensland Industrial Relations Commission (QIRC) - where the appellant sought disclosure against Telstra - where the appellant sought disclosure against the employer - where some disclosure was given by the QIRC - where some disclosure was refused - where the appellant appealed against the refusal - whether documents were relevant to the appellant's claims - whether disclosure should otherwise be given
Industrial (Tribunals) Rules 2011, r 46, r 58, r 64B
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited
Application by Brenda Atkinson to search and take copies of documents [2001] ICQ 30; (2001) 167 QGIG 182, cited
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17, cited
Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees [1999] QIC 20; 161 QGIG 108, cited
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, followed
Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185, related
NQEA Australia Pty Ltd v Dare (No 2); NQEA Australia Pty Ltd v Dare (No 3) [2003] ICQ 61; (2004) 175 QGIG 17, cited
Turay v Workers' Compensation Regulator [2023] ICQ 013, cited
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, followed
"The Non-Party Disclosure notice regarding Telstra is set aside, except for the following phone records which Ms Mohr-Edgar is to have disclosed to her: records of phone calls made by Ms Hawkings‑Guy to Ms Dean on 9 May 2018 between 8.30am and 10.00am."
"With regard to the Attendance Notice directed at Legal Aid Queensland, the following are to be provided to the[4] Ms Mohr-Edgar with the remainder of the items struck out:
The 2016 emails regarding the ICL[5] file must be provided to the extent that they exist and are able to be located. If they cannot be located, a document demonstrating that a search took place must be provided to the Applicant.
For the client Ms Dean and Ms Hawkings-Guy recalled discussing when providing information to the external investigator, the client file/client advice up to and including 9 May 2018 to be provided to the Applicant.
Internal LAQ emails regarding the Applicant's RTI and IP access applications and the OIC external reviews for the period prior to Victimisation Complaint 5 being made.
To the extent that information requested to establish past economic loss exists, it must be provided. If no such information is available, Ms Mohr-Edgar should be provided with correspondence to this effect."
"1. That pursuant to Section 558(1)(c) of the Industrial Relations Act 2016, the Court allow the appeal in relation to the learned Commissioner's decision to set aside the Form 29 Notice of Non-Party Disclosure issued against Telstra and amend the decision to allow disclosure to the appellant of the following phone records:
"2. That pursuant to Section 558(1)(c) of the Industrial Relations Act 2016, the Court allow the appeal in relation to the learned Commissioner's decision to strike out the Form 32B Attendance Notice issued against Legal Aid Queensland and amend or substitute the decision to allow production of and/or require disclosure pursuant to Rule 46 of the Industrial Relations Tribunal Rules 2016 of the following documents:
The Notice requiring Non-Party Production against Telstra
"Victimisation Complaint One - 8-9 May 2018 (Threatened transfer):
"Victimisation Complaint Three - September - October 2018 (Collusion between witnesses):
Categories a. and b.; the complaint of Ms Rhonda Sheehy
"l. The assessment in August 2020 by Queensland State Archives (QSA) of LAQ's purported disposal of public records without proper authorisation or destruction of evidence required for legal proceedings (the complaint response) as a 'level one suspected corrupt conduct' Public Interest Disclosure (PID) and referral by the Crime and Corruption Commission (CCC) of this PID to LAQ to deal with subject to Public Interest Review by the CCC[12]."
"[52] Construing the 2016 IR Act as a whole, and giving meaning to all provisions,[16] s 567 provides that when the Court is hearing grounds of appeal limited to errors of law or jurisdiction,[17] the Court receives the record below and any further evidence by leave. Receipt of the evidence is for the purpose of discerning error of law or jurisdiction, not for determining whether factual findings were soundly made, and not for determining whether inferences which were drawn were open." (emphasis added)
Document c. - Legal Aid's submissions in review ER 314484
"[69] The Respondent says that this category of documents aims to prove that the conversation on 9 May 2018 was not about the client file but about something else, namely a threat to move her. However, proving what the conversation was not about, does not prove that it was in fact in relation to what she claims it was about."
Document d. - preliminary assessment of the OIR in ER 314609
"105. I lodged an external review request with the OIC in relation to the RTI Officer Ms Brandt's decision to find my RTI application non-compliant. On 27 September 2019 the OIC sent me a letter in relation to this external review. This letter from the OIC stated 'As advised, OIC had recently received a response from Legal Aid Queensland (LAQ). LAQ have today confirmed that it accepts my preliminary view that your access application dated 23 April 2019 is compliant with the requirements of section 24(2)(b) of the Right to Information Act 2009 (QLD) (RTI Act) and is therefore prepared to deal with the access application."
"82. Of course, a mere reference to a document does not make it relevant to an issue in dispute. The fact of the ER 314609 Preliminary Assessment is not an issue in dispute. The appellant's focus on this document misconceives the issue which is central to Victimisation Contention Five - which is not whether the OIC reached a different preliminary view to Ms Brandt, but whether Ms Brandt's assessment of the appellant's RTI request was motivated by the appellant's discrimination complaint."
Document e. - communications between Legal Aid and the Crown Solicitor's office
"In my view it is settled that as a statutory tribunal the Industrial Court of Queensland has no inherent jurisdiction, see Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees (Queensland Branch) [1999] QIC 20; (1999) 161 QGIG 108 and WorkCover Queensland v Trever Ernest Markwell (No. 2) (2001) 165 QGIG 351. It may be acknowledged that the grant of various statutory powers to a court of statutory creation carries with it, by implication, the power to do that which is incidental to the exercise of the power, see Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612 and NCSC v Bankers Trust Australia Limited [1989] FCA 530; (1989) 91 ALR 321. However, the implication of a power to alter orders of the Queensland Industrial Relations Commission is not necessary to give efficacy to the various powers vested in the Industrial Court of Queensland."[24]
(a) perform all functions and exercise all powers given to the court under this Act or another Act; and
(b) hear and decide, and give its opinion on, a matter referred to it by the commission; and
(c) hear and decide an offence against this Act, unless this Act provides otherwise; and
(d) hear and decide appeals from an industrial magistrate's decision in proceedings for -
(i) an offence against this Act; or
(ii) recovery of damages, or other amounts, under this Act; and
(e) if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process -
(i) the commission and magistrates exercise their jurisdictions according to law; and
(ii) the commission and magistrates do not exceed their jurisdictions.
(a) make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
(b) give directions about the hearing of a matter.
(3) The court's jurisdiction is not limited, by implication, by a provision of this Act or another Act.
(4) The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise."
(a) a copy of any written submissions made by it in review ER 314484; > > (b) a copy of preliminary assessment ER 314609.
(i) Internal calls received on 8 May 2018 by Jessica Dean from Nicky Davies or any Legal Aid HR staff member. > > (ii) Calls on 9 May 2018 between Jessica Dean and Lyndi Hawkings-Guy between 8.30 am and 10.00 am. > > (iii) Calls on 8 October 2018 between Jessica Dean and Lyndi Hawkings-Guy from 12.00 pm until 8.45 am on 9 October 2018.
[1] Industrial (Tribunals) Rules 2011, r 64B, referred to in various documents as a "non-party disclosure notice".
[2] Industrial (Tribunals) Rules 2011, r 58.
[3] Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185. This was incorrectly published showing the State as the respondent when Legal Aid Queensland is a corporate entity established by s 41 of the Legal Aid Queensland Act 1997.
[4] The word 'the' was included in error.
[5] ICL is a reference to Independent Children's Lawyer.
[6] Industrial (Tribunals) Rules 2011, r 46.
[7] Victimisation complaint 4 is closely related to victimisation complaint 3.
[9] Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185 at [51].
[11] Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276 at [8] and [10].
[12] The reference to CCC is a reference to the Crime and Corruption Commission.
[16] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at [69].
[18] Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No 2) [2020] QIRC 185 at [71] and [76].
[20] Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276 at 282-3 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323 at [45].
[22] Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees [1999] QIC 20; 161 QGIG 108 and NQEA Australia Pty Ltd v Dare (No 2); NQEA Australia Pty Ltd v Dare (No 3) [2003] ICQ 61; (2004) 175 QGIG 17.
[24] And see also DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 followed in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172.
[35] CDJ v VAJ (1998) 197 CLR 172 at [111] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14].
[36] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [49].
Mohr-Edgar
Legal Aid Queensland [2023] ICQ 25
(2000) 203 CLR 172
(1998) 197 CLR 172
(2000) 203 CLR 194
(2003) 217 CLR 1
(2000) 201 CLR 226
(1987) 162 CLR 612
(1989) 91 ALR 321
(1998) 194 CLR 355