Stewart v State of Queensland

Public Interest Disclosure Act 2010 (Qld) s 40, s 42, s 44

Bayly v Westpac Banking Corporation [2020] QCA 148

Empirnall Holdings Pty Ltd v Machon Paull Partners Ltd (1988) 14 NSWLR 523

Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451

Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307

Wong v Medical Board of Queensland [2006] QADT 41

Mr Alexander Stewart, complainant, on his own behalf

Ms April Freeman of Counsel, instructed by Minter Ellison lawyers on behalf of the respondent.

• [1] Mr Alexander Stewart was employed by the State of Queensland (Queensland Health) ('the respondent') as a lawyer within the Metro North Hospital and Health Service ('MNHHS') from in or around 2013 until his resignation in April 2019.

• [2] In or about August 2018, Mr Stewart made multiple complaints regarding certain conduct of MNHHS staff. By December 2020 the complaints numbered approximately 29 and involved 11 different personnel.[1] Notwithstanding the volumes of the material filed in these proceedings it remains difficult to identify precisely what complaints were made and when. Ultimately, the subject matter of the complaints or the precise dates they were made is not directly relevant.

• [3] What is relevant is that some of the complaints were taken to have been public interest disclosures ('PID') within the meaning of the Public Interest Disclosure Act 2010 (Qld) ('PID Act') and Mr Stewart was afforded discloser status in respect of those complaints.

• [4] Mr Stewart alleges inter alia that after he made the complaints, he has been the subject of reprisals within the meaning of s 40 of the PID Act. The details of the reprisals alleged are discussed later in these reasons.

• [5] On 16 August 2021, Mr Stewart made a complaint in respect of the alleged reprisals to the Queensland Human Rights Commission ('QHRC') pursuant to s 44 of the PID Act. Mr Stewart's complaint relevantly read:[2]

"I am writing to make a complaint of reprisal against myself as a public interest discloser by the Metro North Hospital and Health Service.

I note the conduct complained of took place between September 2018, March 2019 and is on-going. The reason for the late complaint is that Metro North Hospital and Health Service accepted the reprisal as part of an investigation, including the enclosed letter dated 15 December 2020. I had expected that the investigation of the reprisal would come with an extension to the period of availability to commence proceedings or raise complaints in respect of the reprisal conduct."

• [6] The parties participated in a conciliation conference at the QHRC on 21 April 2022, which was unsuccessful. Following the conciliation conference, Mr Stewart was required to provide the QHRC with a submission in respect of the delay in filing his complaint. In an email dated 21 April 2022, Mr Stewart relevantly wrote:[3]

1. Metro North has already conducted a Part 9 Investigation into the matter in 2018 for which I was provided a censored copy after an RTI process. Metro North has been unprepared to provide full copies of that report into reprisal conduct to me or the Commission.

2. I provided the attached letter to Metro North highlighting my concern that matters raised in complaint about conduct towards me had not been disclosed and reserving my rights to raise those matters.

3. The matter involved contain or are incidental to issues of legal professional privilege and I cannot raise the complaint without release from that privilege through the Public Interest Disclosure Act 2010 (Qld).

4. There is no prejudice to Metro North in considering the allegations at this time as they have had an active review of the matters for some time. There are no prospects of evidence being lost if, on their view, the evidence is currently before the "independent investigators".

As these delays are solely due to Metro North failing to properly investigate the complaints made and their continual requests that I delay any action until the outcome of the investigation, I submit the Commission should accept the whole of the reprisal complaint.

• [7] The QHRC accepted the complaint and on 6 July 2022, Mr Stewart's complaint was referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld) ('AD Act'). The referral was received in the Industrial Registry on 22 July 2022 and became matter AD/2022/52.

• [8] There is no dispute that Mr Stewart's complaint to the QHRC was made outside of the statutory time limit prescribed by s 138 of the AD Act. On referral to the Commission the matter was listed initially for conciliation. At that conference the respondent advised of their objection to the matter proceeding in the Commission on the basis that the complaint is out of time. Accordingly, there was no attempt to conciliate the matter.

• [9] The respondent seeks an exercise of the Commission's discretion found at s 175 of the AD Act to dismiss the complaint.

• [10] Section 175 of the AD Act relevantly provides:

(1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act .

(2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

• [11] The discretions in ss 138 and 175 of the AD Act are separate and independent discretions.[4] The Commission is not bound by the QHRC's decision to accept Mr Stewart's complaint and must exercise its own discretion pursuant to s 175(2) of the AD Act.[5]

• [12] In Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt ('Ryle'),[6] the Commission as currently constituted had the opportunity to consider the discretion vested in the Commission under s 175(2) of the AD Act:

• [100] Section 175(2) of the AD Act allows the Commission to waive the statutory time limit of 1 year imposed by s 138 if 'on the balance of fairness it would be reasonable to do so'.

• [101] The principles informing such a discretion are well traversed. While some of the authorities cited below emerge in different statutory settings, the nature of the discretion is materially the same and the reasoning of those authorities is apposite.

• [102] In Brisbane South Regional Health Authority v Taylor, the High Court noted that granting an extension of time is a discretion, and the purpose of exercising it is to ensure a fair trial on the merits of the case.

• [103] The principles guiding when the discretion should be granted were identified in Pagura-Inglis v Minister for Education, and adopted by Member Boddice SC (as he then was) in Wong v Medical Board of Queensland. When deciding whether to exercise the discretion to accept a complaint out of time under s 175 of the AD Act, it is relevant to consider:

(b) any explanation by the Complainant for the delay;

(c) any prejudice to the respondent, should the discretion be exercised in the Complainant's favour;

(d) any prejudice to the Complainant, should the discretion be exercised in the Respondent's favour; and

(e) whether there is a lack of merit to the complaint.

• [13] Accordingly, in deciding whether to exercise the discretion vested in the Commission to accept Mr Stewart's complaint out of time, the 'balance of fairness' can be arrived at having regard to these guiding principles:

1. the length of Mr Stewart's delay in making the complaint;

1. any explanation given by Mr Stewart with respect to the delay;

1. whether there will be prejudice to the Metro North Hospital and Health Service if Mr Stewart's complaint is allowed to proceed out of time;

1. whether there will be prejudice to Mr Stewart should the Commission refuse to accept his complaint out of time; and

1. whether there is a lack of merit to Mr Stewart's complaint.

• [14] Directions were issued on 5 September 2022 inviting the parties to file submissions addressing why the Commission should accept the complaint made outside the statutory limitation prescribed by the AD Act.

• [15] Mr Stewart filed submissions and an affidavit on 15 September 2022. In summary, Mr Stewart submits that:

• he is not in a position to fully understand the details of the reprisals against him as they are still the subject of ongoing investigations;

• the solicitor-client relationship and associated duties of fidelity and confidentiality between Mr Stewart and the Respondent 'change the nature of reasonable commencement of proceedings';

• the Respondent agreed that it would not object to further proceedings on the basis of limitation periods;

• the Respondent would not be prejudiced if the complaint was accepted out of time as the investigations into Mr Stewart's PIDs and the alleged reprisals are ongoing; and

• he will suffer prejudice if the complaint was not accepted out of time as he will no longer be able to pursue legal recourse in respect of the alleged reprisals.

• [16] The Respondent filed submissions in response to Mr Stewart's submissions on 14 October 2022. The Respondent submits, in summary, that:

• Mr Stewart should have made his complaint after he became 'immediately aware of various reprisals';

• Mr Stewart's obligation to make a complaint within the prescribed time limit is not abrogated by the fact that an investigation into the PIDS and alleged reprisals remains ongoing;

• Mr Stewart would not have breached any duties of confidentiality by making a complaint of reprisal;

• the Respondent has never waived or agreed to not raise a limitation period defence in respect of Mr Stewart's claims;

• any prejudice to Mr Stewart arises out of his deliberate decision to not make his complaint and instead pursue a judicial review application; and

• there is a general presumption of prejudice to the Respondent and several key witnesses are no longer employed by the Respondent, making it difficult to gather evidence and material.

• [17] Mr Stewart filed his submissions in reply to the Respondent's submissions on 21 October 2022. In summary, Mr Stewart submits that:

• while he was aware of some reprisal conduct, he was not aware of the whole of the reprisal conduct;

• the purpose of making the judicial review application was to ensure the resolution of the investigation into the PIDs and alleged reprisals;

• portions of the complaint do in fact breach prima facie duties of confidentiality but was permitted by virtue of s 36 of the PID Act; and

• the resolution of the investigation into the PIDs and alleged reprisals has a 'material and critical influence' on Mr Stewart's ability to fully understand the complaint.

• [18] Following the filing of submissions and affidavits a hearing of the matter was held on 30 March 2023. Mr Stewart relied on his affidavits filed on 15 September 2022, 7 March 2023 and 28 March 2023[7] and also gave oral evidence.

• [19] The Respondent called evidence from Mr Brett Bourke, General Manager, Workplace Relations with MNHHS. Mr Bourke's affidavits filed on 17 October 2022[8] and 24 March 2023[9] were admitted also.

• [20] Following the hearing the parties agreed to provide written submissions on the evidence. Submissions were filed by the parties between 27 April and 7 June 2023. The submissions largely reiterated earlier submissions and do not require further summarising. The salient portions of the evidence and submissions are referenced and discussed in the reasons that follow.

• [21] In the ordinary course of considering the discretion to deal with a matter filed out of time it is usually an easy enough task to identify what the alleged cause of action is and more importantly, when it arose. A complicating factor in this matter is that, despite his formal legal qualifications and an abundance of time to prepare both his original complaint and his arguments for this application, Mr Stewart often struggled to consistently articulate even the simplest of particulars with respect to certain alleged reprisals.[10] His oral evidence was equally problematic.[11]

• [22] To properly consider whether Mr Stewart's complaint ought to be allowed to proceed, it is fundamental to first identify all the alleged reprisals that are said to be the subject of the complaint. Importantly, the date of those alleged reprisals or the date upon which Mr Stewart became aware of them must be identified to make factual findings about the length of delay. For those reasons it is necessary for the Commission to also examine the more nebulous allegations that are made at various stages of the proceedings to date.

• [23] The starting point for this exercise is the description provided by Mr Stewart when he first lodged his complaint with the QHRC on 16 August 2021. In his email to the QHRC (extracted above) Mr Stewart described the complained of conduct as having occurred between 'September 2018 and March 2019'. Additionally, Mr Stewart also asserts in his complaint that the conduct complained of is 'on-going'.

• [24] As an aside it is noted that Mr Stewart's email complaint to the QHRC attached correspondence dated 15 December 2020 from Ms Lisa Todd, Director of the MNHHS Integrity Unit.[12] Attached to that attachment is a list of 29 complaints (including alleged reprisals) that were collated by Ms Todd. It appears from Mr Stewart's email to the QHRC on 16 August 2021 that he attached this correspondence to demonstrate that his reprisal complaints were the subject of an internal investigation. It does not appear it was attached for the purposes of particularising his complaint. Instead, Mr Stewart sets out the particulars of his reprisal complaint in a definitive list contained within the body of his email. [13]

• [25] By way of particulars, Mr Stewart's complaint of 16 August 2021 identifies the alleged reprisals as:[14]

1. Metro North Hospital and Health Service commencing an investigation under pt 9 of the Hospital and Health Boards Act 2011 (Qld) ('the Part 9 investigation') the goal of which (according to Mr Stewart) was to identify and subsequently intimidate the individual responsible for the PIDs;

1. the (then) Chief Executive of Metro North Hospital and Health Service, Mr Shaun Drummond, commissioning the Part 9 investigation in circumstances where Mr Drummond was allegedly the subject of the Part 9 investigation;

1. Exclusion from the premises and office where he worked;

1. After his resignation, representations made to his new employer that they should not use his services.

• [26] Whilst no dates accompany those particulars it is uncontroversial the Part 9 investigation commenced around October 2018. The fact that Mr Stewart resigned in April 2019 confines allegations (a) - (c) to the nominated period between 2018 and 2019.

• [27] The term 'on-going' presumably applies to allegation (d) though it is not possible from the content of the original complaint to exclude possible additional reprisals requiring consideration. Mr Stewart repeats his reference 'reprisal matters that are on-going' in his submissions filed on 15 September 2022 (at paragraph 1.1) again without particulars or dates. Mr Stewart subsequently gave evidence about these 'on-going' matters which is discussed later in these reasons.

• [28] There are therefore two categorises of reprisal in Mr Stewart's original complaint i.e. those within the specified dates ('the identified reprisals'), and those that are 'on-going'. For the purposes of calculating the delay in Mr Stewart bringing his compliant these two categories will be dealt with separately.

• [29] From the time of filing of his complaint in August 2021 until his opening submission at the hearing of the matter on 30 March 2023, Mr Stewart (non-exhaustively) added or varied his allegations of reprisal to also include:[15]

1. the lock or PIN code to the office being changed so that he could no longer enter;

1. his removal from 'various committees' without notice to him;

1. the sharing of images of him in 'drag' around the office; and

1. 'various' communications from employees of Metro North Hospital and Health Service to his new employer after he had resigned from Metro North Hospital and Health Service.

• [30] While there were additional allegations identified in his opening (but still no dates) the relevant time period within which these alleged reprisals occurred could still reliably be identified as not later than March 2019. The only exception was the 'various' post-employment communications.

• [31] But just when it might be thought a definitive list of alleged reprisals had been established, Mr Stewart changed them again.

• [32] In his closing written submission filed on 27 April 2023 the scope and nature of the reprisals alleged by Mr Stewart contracted to two:[16]

1. As set out in the original complaint to the Queensland Human Rights Commission, the reprisals complained of consist of:

1. The Chief Executive of the Respondent instituting a Part 9 Investigation into conduct for which that officer was the subject office of the allegations (the First Reprisal).

1. Subsequent communications from the Respondent to the new employers of the Complainant (the Second Reprisal).

• [33] Also in those submissions, Mr Stewart purports to expressly exclude any other reprisals when he submits:[17]

The Respondent refers to various other reprisals in the course of their submissions, those references are irrelevant to the matters complained of to the Queensland Human Rights Commission and which have been referred to the Industrial Relations Commission...

• [34] But then, the position shifted again. In further written submissions filed on 7 June 2023 Mr Stewart attempts to clarify his reprisal complaints. Instead of clarity, he adds more confusion when he provides a non-exhaustive list:[18]

To avoid any mischief that misinterpretation may cause, the Complainant points out all the reprisals which have been complained about are the subject of the Independent Investigation, particularly:

2.2 The initiation of the Part 9...

• [35] In circumstances where it would seem that this is as clear as Mr Stewart is ever going to be, fairness to him dictates that his disparate presentation of his complaints should not disadvantage him. Accordingly, the broad range of alleged reprisals that are identified by Mr Stewart will form the basis for the Commission's consideration.

• [36] Given Mr Stewart resigned in April 2019 it may safely be assumed that any alleged reprisals that related to events at or during his period of employment fall within the pleaded period of September 2018 to March 2019.

• [37] All of those complaints are between 17 to 23 months outside the prescribed time limit.

• [38] Throughout proceedings there was a lingering uncertainty for the Commission around Mr Stewart's use of the term 'on-going' in his original complaint. Mr Stewart attempts (but fails) to bring clarity by referring to the three alleged reprisals listed above and saying in his final written submission:[19]

Further, the reference to these being on-going is simply a result of the hyper-sensitivity of the Complainant, described while under cross-examination, as a result of being locked in this process for a period of over five (5) years without resolution.

• [39] Having regard to that submission it would appear that Mr Stewart is (now) saying that he used the term 'on-going' in his original complaint to describe the detrimental effect of the identified alleged reprisals i.e. it is the emotional or psychological detriment arising from the identified reprisals that is on-going, rather than additional acts of reprisal.

• [40] That submission is completely inconsistent with his original complaint to the QHRC. In his original complaint Mr Stewart says the complained of conduct is 'on-going'. It is also inconsistent with Mr Stewart's repeated and expanding references to 'communications' (plural) by the respondent with his new employer. In the absence of any helpful pleading or submission from Mr Stewart, caution dictates that the Commission ought to comprehensively consider the allegations Mr Stewart makes about the respondent's conduct after his resignation however vague they might be.

• [41] The first of the alleged offending communications following Mr Stewart's resignation is said to have occurred in or about May 2019 and was (with enormous difficulty) eventually specified by Mr Stewart in his evidence as one of two alleged incidents of contact by the respondent with his new employer.[20] This is the allegation identified in the original complaint as item (d).

• [42] To the extent that this was identified as one of the 'on-going' reprisals, it post-dates his employment with the respondent but pre-dates his complaint to the QHRC. It is 15 months out of time.

• [43] The second alleged offending communication with Mr Stewart's employer is particularised in his affidavit filed on 15 September 2022.[21] At paragraph 21 of that affidavit Mr Stewart describes correspondence sent from the Chief Executive of MNHHS to his (then) employer (QUT) on 10 March 2022 as:

...one part of an extensive range of smaller comments and attacks brought by officers of the Service against me.

• [44] Mr Stewart describes this correspondence from the respondent's Chief Executive as 'an attack'. He exhibits the full correspondence in his affidavit and makes adverse assertions about it. But nowhere in his filed material or his oral opening before the hearing (or after it) does Mr Stewart ever explicitly described this correspondence as a reprisal.

• [45] One might be forgiven for thinking that this meant Mr Stewart did not press the Chief Executive's correspondence as a reprisal. Yet, when giving his evidence to the Commission, Mr Stewart unambiguously makes that allegation.[22]

• [46] For all of the following reasons, the allegation of reprisal in respect of the Chief Executive's correspondence of 10 March 2022 will not be considered in this application.

• [47] It is not disputed that the Chief Executive of MNHHS wrote to Mr Stewart's employer (QUT) in March 2022 i.e. 7 months after the complaint was filed with the QHRC. The correspondence in question is exhibit 'O' to Mr Stewart's affidavit filed 15 September 2022 and is self-explanatory.

• [48] On the undisputed facts, it appears that the letter was sent as a reaction to Mr Stewart making derisive and inappropriate comments about the Chief Executive on the respondent's public Facebook and LinkedIn pages. In essence, on 8 March 2022, in response to a post from the Chief Executive celebrating International Women's Day, Mr Stewart commented publicly that the Chief Executive accepts the term 'vinegar tits' as a term of endearment.

• [49] Incredibly, Mr Stewart made this grossly inappropriate comment via his personal LinkedIn account which plainly identified him as both a legal practitioner and an employee of QUT. Mr Stewart does not dispute any of these facts. He refers to his social media post as 'a negative comment' in an apparent attempt to trivialise it.[23]

• [50] There are a number of problems with Mr Stewart's assertion that the Chief Executive's correspondence is a reprisal. Firstly, on the admitted conduct of Mr Stewart, the letter from The Chief Executive is entirely to be expected. While a conclusion as to the motives of the Chief Executive would be a matter for further evidence, it is highly improbable on these facts that such action was taken 'because' of Mr Stewart's PIDs as required by s 40 of the PID Act.

• [51] Mr Stewart seeks to support his characterisation of this conduct as a reprisal by contending the reaction of the Chief Executive was out of the ordinary.[24]

• [52] This submission demonstrates a concerning lack of insight by Mr Stewart as to the types of responses that might be expected to his grossly inappropriate conduct. Further, while his lack of insight into the inappropriateness of his social media post is concerning, it is even more troubling that he made the post from an account identifying himself as an employee of QUT and did not expect consequences.

• [53] On any objective view, the comment made by Mr Stewart was a personal attack on the character of the Chief Executive in a public forum. The fact it was puerile in nature does not diminish its seriousness. The Chief Executive's communication with QUT was not an unsolicited act. On the contrary, it was an act provoked by Mr Stewart's grossly improper conduct.

• [54] Further, the Chief Executive's letter exclusively dealt with Mr Stewart's improper conduct. It did not descend into any other matters and was neither unusual nor inappropriate given the potential for such conduct to bring QUT into disrepute. It was plainly not 'because' of the PIDs.

• [55] For completeness it ought to be observed that if Mr Stewart's LinkedIn profile also identified him as a legal practitioner, then such conduct may also have been a contravention of his professional obligations.[25]

• [56] The language of s 40 of the PID Act requires the perpetrator of a reprisal to inter alia 'cause' detriment to a discloser. If Mr Stewart suffered any detriment from the letter sent to his employer it was not 'caused' by the Chief Executive but rather, it was caused by Mr Stewart when he engaged in what was plainly misconduct as an employee of QUT.[26]

• [57] Even if it were possible to characterise the correspondence of the Chief Executive in March 2022 as a reprisal (which it is not), it post-dates Mr Stewart's complaint filed in August 2021. It was plainly not a reprisal within his contemplation as 'on-going' at the time of filing. Rather, it is (at best) a new complaint (albeit utterly unmeritorious).

• [58] Since March 2022 Mr Stewart has made no attempt to action the matter. He has not sought leave to amend his complaint to include it in his current application.[27] Further, any grant of leave to amend his complaint would depend on his complaint being accepted by the Commission. For that to occur would require a satisfactory explanation for the delay and an evaluation of the merits of the additional allegation. That is a path beset with significant barriers for Mr Stewart.

• [59] In all of the above circumstances the Commission is satisfied that, to the extent that Mr Stewart has alleged or even alluded to reprisals being 'on-going' at or after the date that he filed his complaint in the QHRC, there are no particulars provided by him and no evidence otherwise before the Commission that support such an assertion.

• [60] Consistent with his own final written submission set out above, it would appear that despite the language he used in his complaint to the QHRC and despite the evidence he gave at the hearing, Mr Stewart intended the term 'on-going' to describe only the effect of the identified reprisals were having on him personally.

• [61] The calculation of the length of the delay is therefore confined to the identified reprisals within the period September 2018 to May 2019.

• [62] Whether the length of a delay is significant is not measured solely by reference to weeks, months, or years. Proceeding to deal with a matter that was filed 15 to 23 months outside a prescribed time limit might not offend principles of fairness in the right circumstances.

• [63] But in the circumstances of this matter that are revealed in these reasons, a delay of 15 to 23 months is substantial when one considers that, as at October 2019 (substantially during the currency of the relevant time limitation period), Mr Stewart was:

• aware that reprisals were proscribed by the PID Act; and

• able to articulate particulars of at least two reprisal complaints.

• [64] In the Commission's view, a substantial delay in these circumstances could only be mitigated by either a very compelling explanation or very compelling merits (or both).

• [65] The explanations for the delay offered by Mr Stewart are, at times, unclear or inconsistent.

• [66] At the outset it should be noted that one previously offered explanation has totally vanished after his submission to the QHRC in April 2022. In that email Mr Stewart submitted:[29]

As these delays are solely due to Metro North failing to properly investigate the complaints made and their continual requests that I delay any action until the outcome of the investigation, I submit the Commission should accept the whole of the reprisal complaint.

• [67] Beyond this submission to the QHRC, no submission was ever made again to the effect that the respondent 'continually' requested Mr Stewart delay 'any action'. No evidence was ever produced to this effect either. If it were true that the respondent had 'continually requested' Mr Stewart delay making his complaint, evidence and submissions to that effect would have been produced. In the absence of such evidence, it is a most unlikely scenario. Whether the statement is a product of misleading intent or pure ineptitude is not relevant. It is beyond reckless to make such an assertion that has significant potential to mislead the QHRC. Still, one cannot help but to be perversely impressed at the temerity of such a misleading representation, by a legal practitioner, and in the context of legal proceedings no less.

• [68] In his submissions filed after the hearing of the matter on 27 April 2023 Mr Stewart offers five distinct explanations for the delay in making his complaint to the QHRC.[30] But in written submissions filed before the hearing and also while giving evidence at the hearing, Mr Stewart included two more explanations for his delay: namely, a promise by Mr Brett Bourke, Senior Director, Workplace Relations that induced Mr Stewart to refrain from acting, and an alleged agreement with the respondent to waive time limits on the reprisal action.[31]

• [69] Notwithstanding Mr Stewart offers a total of seven separate explanations, three of them involve awaiting the conclusion of the Part 9 investigation. Accordingly, those three explanations can be dealt with as a single category.

• [70] In simple terms Mr Stewart says he was prevented from making or delayed making his reprisal complaint because:

1. For various reasons, he was awaiting the conclusion of or other disclosure from the investigation;

1. he had obligations of legal professional privilege (LPP) and confidentiality;

1. he was relying on or was induced by 'a promise' by Mr Brett Bourke; and

1. he had an agreement with the respondent effectively waiving any time limitation.

• [71] Each of these explanations will be considered in turn. Before doing so, the Commission's consideration must be prefaced by noting that the facts plainly demonstrate that Mr Stewart was aware of his rights with respect to suspected reprisals from as early as 17 October 2019 where, in correspondent to Ms Jackie Hanson, Acting Chief Executive of the respondent, he expressly 'reserved his rights' in relation to 'Chapter 4' and 'section 42' of the Public Interest Disclosure Act 2010 (Qld) ('the PID Act').[32]

• [72] The full text of the correspondence to Ms Hanson reveals, without doubt, that Mr Stewart is well and truly aware of his rights with respect to reprisals. Importantly the correspondence concludes with a clear reference to Mr Stewart's contemplation of timing for making such complaint whereby he foreshadows 'delay'.

• [73] Additionally, in a meeting with Mr Bourke in late October 2019 Mr Stewart again demonstrates a clear awareness of the PID Act and describes some of the alleged reprisals against him as 'easy to prove'.[33]

• [74] Having already identified the cause of action almost two full years before he filed his complaint, Mr Stewart now offers four explanations for his subsequent inaction.

• [75] Mr Stewart has asserted in these proceedings that he could not lodge his complaint within the prescribed time limit because, for various reasons, he was awaiting the outcome of the investigation.[34] He has variously asserted that this was because:

• he was 'constrained' from doing so 'until the complete provision of materials, including the complete report and outcome of the investigation';[35] or

• the reprisals were the subject of the investigation;[36] or

• the respondent may be conflicted in responding to the Complaint (until conclusion of the investigation);[37]

• [76] For the reasons that follow, none of these purported explanations are satisfactory, especially in the context of the evidence of the clear understanding of his rights that Mr Stewart demonstrated by October 2019.

• [77] There are multiple references in the evidence demonstrating that Mr Stewart was, at least by October 2019, of the view he had viable reprisal complaints and sufficient evidence to support them.[38] In a transcript of an interview with Mr Brett Bourke on 25 October 2019 at the point where reprisal action is being discussed, the following exchange occurs:[39]

Mr Stewart: Okay. What...is your understanding of the consequences of reprisal under the Public Interest Disclosure Act?

Mr Bourke: Well it's really very significant, and there is potential for jail time...at the worst end of the spectrum.

Mr Stewart: yep. So two years, 167 penalty units.

• [78] In that interview Mr Stewart complains of inaction of the respondent in investigating his reprisal complaints and, in describing the consequences to Mr Bourke for not dealing with them, he says 'I'm ready to do this publicly' and 'if you don't do anything at the end of the day, I'll do it.'[40] Later in that same interview, Mr Stewart describes certain identified reprisal allegations as 'easy to prove'.[41]

• [79] As an important aside: Two important observations relevant to other explanations discussed later in these reasons can be made from the evidence of this interview provided by Mr Stewart.

• [80] Firstly, at no point in this interview with Mr Bourke does Mr Stewart describe being constrained from making his reprisal complaint or raise any other impediments related to LPP or at all.

• [81] Secondly, at the time of the meeting with Mr Bourke on 25 October 2019, Mr Bourke had not yet made his 'promise' of an independent investigation.[42] Indeed, that was apparently part of Mr Stewart's objective in meeting with Mr Bourke i.e. to have them included in an investigation. So, at that time, apart from his personal decision to delay, nothing was impeding Mr Stewart from commencing proceedings at that time, at least in relation to the allegations he said were 'easy to prove'.

• [82] Even if he was hesitant about filing his complaint or felt he was constrained (albeit for no valid reason) Mr Stewart, as a legal practitioner, would or should have been aware of the importance and the effect of statutory time limits. The plain facts reveal that the delay to await conclusion of the investigation or await a full copy of the report, for whatever reason, was exclusively a matter of Mr Stewart's own choice.

• [83] More specifically, by reference to the matters listed in [75] above:

• Mr Stewart might have preferred to have the full investigation report before proceeding but, given he had clearly identified alleged reprisals (that were 'easy to prove') by late October 2019 it cannot be contended he was constrained from filing a complaint without the report. Whatever Mr Stewart thought he needed from the content of the investigation report, it could only have been ancillary to the claims he had already identified.

• The fact that Mr Stewart's reprisal complaints were included as part of the investigation did not prevent or excuse him from filing those complaints in the QHRC. Plainly Mr Stewart made a strategic decision. As the complainant, Mr Stewart was obliged to observe the time limit. While he may have felt genuine concern that a complaint to the QHRC might adversely impact on the investigation, that did not relieve him of his obligation to observe the time limit.

• Any conflict experienced by the respondent arising from having to continue to conduct the investigation and to also deal with reprisal complaints in the QHRC was a matter for them to address. It is not open for Mr Stewart to rely on his own unilateral, pre-emptive assertion of conflict that might be experienced by the respondent or its witnesses and subject officers. Speculative musings about these matters by Mr Stewart cannot, in any way, serve to prevent or excuse him from complying with his statutory obligation to adhere to the prescribed time limit.

• [84] There was no law, duty or other barrier that prevented Mr Stewart from filing his complaint regarding the alleged reprisals that he was plainly aware of by October 2019. It was his responsibility to act within the prescribed time limit and any hesitation due to the ongoing investigation or otherwise was entirely Mr Stewart's choice. He may have genuinely believed he was constrained until the outcome of the investigation, but he was very wrong about that.

• [85] For completeness, to the extent that Mr Stewart also says he had not been provided with sufficient information or documentation from the investigation (or at all), those are matters that could easily have been addressed through disclosure and amendment in the usual course of proceedings.

• [86] A lack of information or documentation from the investigation should not have presented as a barrier to Mr Stewart. An experienced legal practitioner would be expected to know that it is not a respondent's duty to pre-emptively arm a litigant with evidence to assist them to build or strengthen their unfiled proceedings. While pre-disclosure can occur in the context of structured discussions between consenting prospective litigants, it is more commonly the case that a party not possessed of certain documents or other evidence will start litigation with incomplete pleadings that are expressed as being subject to further disclosure, or to amend proceedings when information comes to light.

• [87] In offering these explanations Mr Stewart appears to do so on the basis that these factors somehow independently prevented him from filing his complaint. The reality is that Mr Stewart grossly misinformed himself on these matters and then he made a deliberate choice to delay starting proceedings until the investigation was complete.[43]

• [88] The explanations for delay associated with awaiting the outcome of the investigation or provision of documentation are unsatisfactory.

• [89] Mr Stewart did not refer to LPP as an explanation for his delay when he first filed his complaint with the QHRC in August 2021. This is so notwithstanding the email accompanying the complaint expressly acknowledges delay and includes an explanation.[44] Mr Stewart first raised LPP as an explanation in April 2022 when required by the QHRC to make a submission about his complaint being considered outside the statutory time limit.[45]

• [90] Despite ample opportunity to do so, Mr Stewart has never provided any clear particulars as to what facts material to his reprisal complaints are the subject of LPP or other confidentiality obligations. Further, it appears uncontroversial that whatever concerns Mr Stewart held about LPP, he never made any attempt to raise those matters with the respondent as a barrier to his desire to commence reprisal proceedings.

• [91] Mr Stewart says that he was unable to commence proceedings for reprisals within the stipulated time limit because the matter 'contained or was incidental to issues of LPP'. Mr Stewart has subsequently added 'confidentiality obligations' arising from his 'special' relationship with the respondents. Such an obviously flawed submission must fail.

• [92] The flaws in this submission are obvious because firstly, the nature of the reprisal complaints in this matter could not conceivably compel the disclosure of matters that would be the subject of LPP as between Mr Stewart and his employer. The elements of reprisal within the meaning of the PID Act are relatively simple and, on examination, demonstrate the obvious folly of Mr Stewart's assertion.

• [93] Section 40 of the PID Act relevantly provides:

(1) A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that -

(a) the other person or someone else has made, or intends to make, a public interest disclosure; or

(b) the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.

• [94] In simple terms, a complaint regarding reprisal only requires Mr Stewart to prove:

• that someone caused or attempted to cause detriment to him; and

• the someone in question caused or attempted to cause detriment to him because or in the belief he had inter alia made a PID.

• [95] The fact that Mr Stewart made the PID's was never in dispute, so the first element is established. The subject matter of the PID and any possible LPP content would not be relevant.

• [96] Mr Stewart alleges the reprisals took the form of inter alia his security code for a room being changed, photos of him in 'drag' being displayed, the commencement of the Part 9 investigation, or being excluded from 'various' committees. The facts relied on by Mr Stewart that give rise to these alleged reprisals would appear to be entirely or mostly disconnected from any professional conduct or activity of Mr Stewart that would attract LPP. Ultimately the Commission can only speculate, as Mr Stewart has never assisted with a more fulsome explanation about the precise nature of the asserted LPP, and how it prevented him from acting.

• [97] But even if there were some scenarios that required the evidence at proceedings to touch on matters subject to LPP or confidential information, they could not legitimately be a barrier to commencing the reprisal proceedings. Any moderately experienced legal practitioner like Mr Stewart would be aware that LPP is routinely waived, quarantined, or otherwise dealt with by litigants in proceedings, either by agreement or by order of the relevant court or tribunal where necessary. LPP should not have presented as a barrier to Mr Stewart.

• [98] Further, there is no evidence Mr Stewart ever attempted to discuss his concerns about LPP with the respondent to facilitate the commencement of his complaint. There is no explanation from Mr Stewart as to why he could not have filed his complaint with e.g. incomplete pleadings expressed in a manner that foreshadowed the sensitivity of the content and the need for agreement or a ruling on LPP matters.

• [99] Mr Stewart cannot simply declare that his unilateral concerns about LPP justified, compelled, or permitted him to disregard a statutory time limit. There were any number of legitimate ways for him to address whatever LPP concerns he held, and there is no evidence that he pursued any of them.

• [100] Additionally, Mr Stewart entirely overlooks the glaring inconsistency in his LPP submission. He argues that he was unable to commence these proceedings because he was constrained by LPP. But somehow, by August 2021, he was able to pursue his complaints unburdened by those restraints. He makes this submission without any attempt to explain the inconsistency.

• [101] Even if one speculates that Mr Stewart might have felt less constrained after his resignation in April 2019, he still fails to explain why he did not file his complaint immediately but instead, waited another 28 months.

• [102] Finally, as discussed above, from October 2019 Mr Stewart was overtly referring to reprisal complaints in his communications with the respondent.[46] He even relied on a threat to take action in his ultimatum to Mr Bourke.[47] There was no mention of LPP at that time. And even at the time of filing his complaint with the QHRC in August 2021, he made no mention of LPP.

• [103] Having regard to the contemporaneous language used by Mr Stewart at the time he filed his complaint and for over 2 years before that, there is not a single reference to the alleged LPP constraints he now says prevented him from commencing within time.

• [104] In all those circumstances it is reasonable to conclude that the LPP explanation is, in all likelihood, a reconstruction or an afterthought by Mr Stewart. While he might contend for it as an explanation now, there is no evidence it influenced his reasoning at the relevant time. When considering an explanation for a delay in such matters, the Commission should not concern itself with explanations constructed many months after the fact, and which played no actual part in the timing of a decision to file or not file a complaint.

• [105] Even if LPP did influence Mr Stewart's decision, he has again seriously misinformed himself about it being a barrier to the commencement of his reprisal complaint within the stipulated time limit. Regardless of whether Mr Stewart genuinely believed he had these professional obligations or not, he has not demonstrated how he was allegedly constrained. He was not constrained as he alleges or at all.

• [106] It follows then that the Commission considers that the explanation that he was prevented from making his complaint because of LPP or any other professional obligations is not acceptable.

(iii) and (iv) The promise of Mr Bourke or agreement with the respondent

• [107] In addition to the explanations he particularised in his 27 April 2023 submissions Mr Stewart also asserted at various times, and in various ways, that the respondent had somehow induced his delay or agreed to waive the time limit for the commencement of a reprisal complaint. Having Mr Stewart explain precisely how this was said to have occurred was far more difficult that it should have been.[48]

• [108] What eventually emerged from Mr Stewart's evidence were two separate scenarios which he contended gave him either tacit justification or express permission to delay commencement of his reprisal proceedings.

• [109] Before turning to the precise details of these scenarios it is necessary to briefly divert consideration to an assertion by Mr Stewart that he made 'repeated requests' to the respondent seeking confirmation that no objections would be raised in respect of delay in commencing proceedings relating to the alleged reprisals.[49] Caution dictates consideration of this assertion from Mr Stewart because, while not overtly stated, the submission appears (on some level) to be intended as an antecedent fact to support the suggestion that he somehow later secured agreement to file proceedings outside the prescribed time limit.

• [110] Mr Stewart contends that he made 'repeated requests' for confirmation that the respondent 'would not raise' time limits but that the respondent never responded.

• [111] The tone of the submission suggests that the respondent was somehow obliged to respond to the alleged 'repeated requests' and that their failure to do so somehow misled Mr Stewart or otherwise negated their right to subsequently rely on the statutory time limit.

• [112] It is trite to observe that even if it were true that Mr Stewart made repeated requests (which it is not), the obligation of Mr Stewart to observe the statutory time limit in his own proceedings was not displaced. If anything, the respondent's alleged silence ought to have been interpreted by a prudent litigant (let alone a legally qualified one) as an indication there would be no consent to waive time limits.

• [113] In any event, when pressed about his assertion of 'repeated requests' Mr Stewart produced no compelling evidence. The evidence that was produced at hearing reveals only two relevant communications where Mr Stewart has pointedly raised time limitations on reprisal claims, namely:

1. correspondence from Mr Stewart to Ms Jackie Hanson dated 17 October 2019;[50] and

1. an email from Mr Stewart to solicitors for the respondent dated 23 July 2021.[51]

• [114] In his letter to Ms Hanson on 17 October 2019, after having outlined inter alia alleged reprisals, Mr Stewart concludes:

...I will take this opportunity to again reserve my rights pursuant to Chapter 4 of the Public Interest Disclosure Act 2010 (Qld), including section 42. As you will appreciate, I am constrained from commencing in relation to those actions until complete provision of materials, including the complete report and outcomes of the investigations that arose from same. Unless I hear differently from the Service, I assume your consent to such delay.

• [115] The first notable aspect of this passage is that it purports to procure an agreement with the respondent to waive the statutory limitation merely through their silence. It is trite to observe that, except in factually unique circumstances, silence cannot equate to consent.[52] No such unique circumstances exist in this matter.

• [116] Further, to purport that such language could have that effect fundamentally misunderstands the way that both s 138 and s 175 of the AD Act operate. Section 138 of the AD Act relevantly provides:

(1) Subject to subsection (2) , a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act .

(2) If a complaint is made more than 1 year after the alleged contravention of the Act , the commissioner must decide -

(a) to accept the complaint, but only if the commissioner is satisfied the complainant has shown good cause; or

• [117] The language of s 138(1) of the AD Act expressly excludes any right to bring a complaint made more than one year after the contravention. That is to say, subject to the discretion of the Human Rights Commissioner (or their delegate) at s 138(2) of the AD Act, any complaint outside the prescribed time limit is barred. Section 138(1) is a statutorily prescribed limit that prima faci cannot be subverted by private agreement between litigants.

• [118] A waiver or otherwise of the limit prescribed by s 138(2) of the AD Act is exclusively at the discretion of the Human Rights Commissioner and is only exercisable on the condition they are 'satisfied a complainant has shown good cause'.

• [119] While an agreement between parties to waive the prescribed time limit might be a matter the Human Rights Commissioner would take into account in considering whether to accept a complaint contrary to s 138(1) of the AD Act, the agreement of the parties cannot usurp the exclusive discretion of the Human Rights Commissioner.

• [120] The language of s 175 of the AD Act (see above) is different to s 138, but the manner of its operation is largely the same. Section 175(1) of the AD Act compels the Commission to accept a complaint referred from the QHRC unless the complaint was made more than one year after the alleged contravention. In that circumstance, it is the Commission alone that has the discretion to waive the prescribed time limit where the 'balance of fairness between the parties' requires it. While an agreement between litigants to extend or waive a time limit might inform the Commission's discretion, it cannot displace it.

• [121] Finally, even if Mr Stewart's attempt to surreptitiously procure consent to filing proceedings outside the prescribed time limit was legitimate (which it was not), the language he has used fails to achieve that outcome. The final paragraph of Mr Stewart's correspondence on 17 October 2019 simply alludes to reasons for a delay in commencing proceedings. It makes no reference to the prescribed time limit or how that limit might be impacted by the foreshadowed delay.

• [122] To the extent any alleged lack of response from the respondent might be argued to have produced any agreement to a 'delay', it cannot be said it was an agreement to waive the time limit prescribed in the AD Act. To the extent it is necessary to reach a conclusion, it follows that the correspondence of 17 October 2019 has no effect with respect to any purported waiver of the statutory time limit.[53]

• [123] The only other evidence before the Commission of Mr Stewart's alleged 'repeated requests' for consent from the respondent to waive the time limit is found in his email dated 23 July 2021. In that email Mr Stewart wrote to solicitors for the respondent and inter alia sought confirmation the respondent 'waives any argument on limitations in respect of reprisal actions given the on-going investigations.'[54]

• [124] On 16 August 2021 (at 1:30pm) solicitors for the respondent replied to Mr Stewart categorically stating that the respondent would not waive any limitation argument on causes of action arising from the alleged reprisals.[55] Mr Stewart filed his complaint to the QHRC 44 minutes later.

• [125] In all of those circumstances, to the extent Mr Stewart ever directly raised the statutory time limit pertaining to his reprisal complaint with the respondent, it was not done so repeatedly and when it was, he either received no response, or he was unambiguously advised they would not agree to waive the limitation period.

• [126] Turning now to the alleged promise of Mr Bourke and whether it was capable of granting or inducing the delay: A difficulty arises for Mr Stewart in that, despite pointedly declaring the 'promise' was a reason he did not commence proceedings, when directly asked during cross examination to describe the 'promise', he struggled to do so.[56]

• [127] As to 'what' the promise was, in cross examination Mr Stewart (somewhat belatedly) asserted that assurances were given during 'telephone calls' with Mr Bourke.[57] Despite ample opportunity to particularise these apparently vital facts in his numerous affidavits or written submissions, Mr Stewart asserted them (for the first time) under cross examination. Exactly when those conversations took place and what precisely was said has still never been particularised by Mr Stewart.

• [128] When pressed to clearly explain the 'promise' Mr Stewart (eventually) says:[58]

Ms Freeman: Okay, so where's your evidence about this conversation with Mr Bourke?

Ms Freeman: Yes, but you just said you had a conversation where you said you threatened to sue Metro North?

Ms Freeman: Okay. But where have you put that in your affidavit material?

Ms Freeman: Okay. Well, that's nice. You need to tell us what the details are of that so we can understand what you're talking about. So what was the promise? That he was going to refer it to ESU?

Mr Stewart: The assurance was that there would be an independent investigation outside Metro North.

• [129] As to the 'when' the promise was made Mr Stewart points to the language contained in an email from Mr Bourke dated 29 November 2019.[59] The email in question relevantly reads as follows: [60]

I received formal advice yesterday that the ESU have accepted all matters that have been referred to them. I would expect you will hear from them in due course.

• [130] When asked how this statement from Mr Bourke induced Mr Stewart to delay commencing his reprisal complaint in late 2019 Mr Stewart contended that it was made in a context where he had provided Mr Bourke with an ultimatum i.e. that if an independent investigation into the reprisals was not initiated, he would commence proceedings against the respondent (or words to that effect).[61] Mr Stewart contends he gave this ultimatum to Mr Bourke at the meeting they had in late October 2019.

• [131] A transcript of that meeting is annexed to Mr Stewart's affidavit filed 7 March 2023 ('the transcript').[62] The transcript reveals that on 25 October 2019 Mr Stewart met with Mr Bourke for informal discussions about his various complaints. At that time Mr Bourke was relatively new to his role and seeking to familiarise himself with the matters, in particular the reprisal complaints.[63] Having regard to the transcript as a whole, there are plainly references to reprisal complaints, including the references by Mr Stewart that he considers two of them are 'simple to prove'.[64]

• [132] Insofar as any ultimatum from Mr Stewart being recorded in the transcript, there is an exchange between him and Mr Bourke where the timing of further steps in relation to all of the complaints are discussed.[65] After a sincere but wholly ambiguous assurance from Mr Bourke about his intention to 'thoroughly pursue' the matters, the following exchange occurs:[66]

Mr Stewart: ...all I'm saying is Metro North, do your work, that's all fine. If you don't do anything at the end of the day, I'll do it.

• [133] This exchange is the only exchange in the transcript bearing any resemblance to an ultimatum. There is no promise in that interview by Mr Bourke to refer the complaints to ESU or otherwise commission an independent investigation. However, taking into account Mr Stewart's evidence about 'telephone conversations' with Mr Bourke, it is possible those features crystalized after the meeting on 25 October 2019. The email chain attached to Mr Stewart's affidavit is titled 'Phone Conversation Today' and the emails do allude to earlier conversations.[67] Exactly when those conversations took place and what precisely was said has never been particularised by either Mr Stewart or Mr Bourke.

• [134] What can be deduced from the email chain is that Mr Stewart asserts 'timing' is very urgent. He makes reference to filing proceedings against Metro North 'the following week', and then sends further emails pursuing certainty of a decision by the respondent (one way or the other) of referral of his complaints to the Ethical Standards Unit ('ESU'). The email chain culminates with Mr Bourke conveying to Mr Stewart a decision to refer the matters to the respondent's ESU.

• [135] So it would seem (after a rather torturous journey through this evidence) it may be concluded that it was this email that Mr Stewart relies on as 'the promise' made by Mr Bourke. It was this promise that allegedly induced him to delay commencement of his reprisal proceedings.

• [136] What is clear from the representations of Mr Bourke in this evidence is that they plainly do not contemplate (either expressly or impliedly) an agreement to waive any statutory time limits with respect to reprisal complaints. In those circumstances, any decision to delay commencing his reprisal proceedings because of this representation was entirely unilateral on Mr Stewart's part and was not induced or otherwise encouraged by Mr Bourke.

• [137] A further difficulty arising for Mr Stewart is that, while he alleges Mr Bourke's promise of an independent investigation induced him to delay commencing proceedings, he then fails to explain his inaction from 24 January 2020 when, as he alleges, Mr Bourke broke his promise.[68]

• [138] Whatever delay occurred between October 2019 and August 2021 in these circumstances was plainly a delay entirely of Mr Stewart's choosing. To the extent the 'promise' of Mr Bourke is relied on as an explanation for the delay, it is unsatisfactory.

• [139] In addition to the 'promise' of Mr Bourke, Mr Stewart also asserts something akin to a general waiver of time limits was allegedly agreed to by the respondent.[69]

• [140] In or about May 2021 Mr Stewart commenced a Judicial Review application in the Supreme Court of Queensland ('the JR application') ostensibly in relation to one of his PIDs. In his submissions filed on 15 September 2022 (at paragraph 7.8) Mr Stewart expressly states he did this to 'hurry resolution of the investigation'.[70]

• [141] According to Mr Stewart, on 9 July 2021 the JR application was discontinued on without prejudice terms, including inter alia:[71]

"1. The investigation continues as it was. I do not see any reason the investigation should have been affected by this application. 2. There be no bar raised on future applications to the Court for review for the Maynard PID."

• [142] But in his evidence about the circumstances of the discontinuance of the JR proceedings Mr Stewart gave evidence that:[72]

During the judicial review matter they waived future bars to litigation

• [143] Following this rather unlikely assertion Mr Stewart was questioned and again struggled to articulate with sufficient particularity what agreement was reached with the respondent to that effect.[73] After a short adjournment during which Mr Stewart had to be directed by the Commission to produce evidence of this alleged general waiver, it was eventually established that the JR proceedings were discontinued inter alia on the following proviso:

There be no bar raised on future applications to the court for review of the Maynard PID.

• [144] Following this revelation the following exchange occurred:[74]

MS FREEMAN: Paragraph 19 of Mr Stewart's first affidavit. He sets out there this issue, and we can see, in the second last line of that paragraph, what he said in his email to Queensland Health at the time was:

There'd be no bar raised on future applications to the court for review of the Maynard PID.

That's what he proposed and as I understand it the offer was accepted, and orders were made by the court to - that the judicial review wouldn't proceed any further. So that's the extent of it, in my submission, that it was no bar to future applications by Mr Stewart for review, as in judicial review of the Maynard PID. And as Mr Stewart explained in his evidence before, that was to do with issuing letters under the PID Act.

COMMISSIONER: And this email was in the context of resolving a judicial review application?

MS FREEMAN: Correct. About a specific aspect of ---

COMMISSIONER: Is that all correct, Mr Stewart? --- Yes.

COMMISSIONER: Do you say, Mr Stewart, let's just - it's not a complex proposition, so let me just put it to you again, do you say that at some point in time, somebody either from the department or representing the department gave you a clear and unambiguous impression that you could start reprisal proceedings under the Anti-Discrimination Act at any time you liked regardless of time frames?---No.

COMMISSIONER: No. So we're not dealing with that. There was never any representation that you could start these proceedings out of time?---No.

• [145] Despite his fervent adherence to the narrative that he had somehow been granted consent from the respondents to file his reprisal proceedings outside the prescribed time limit, Mr Stewart was unable to identify any evidence of such an arrangement. There was no evidence of any express permission to file outside the time limit, nor any circumstances where Mr Stewart might reasonably have implied it.

• [146] Even if the PID that was the subject of the JR application included reprisal allegations, the agreed waiver was only in respect of further applications, to the Supreme Court of Queensland, in respect of the subject PID.

• [147] It follows that the explanation for delay that relies on the alleged agreement with the respondent is not supported on the evidence. There was no agreement to that effect or at all.

• [148] The explanations of a 'promise' by Mr Bourke or other agreement are utterly without substance and wholly unacceptable.

• [149] Before he was called upon by the QHRC and (later) by this Commission to explain the delay in commencing his reprisal proceedings, Mr Stewart twice committed certain comments to writing in a context more contemporaneous to the filing of the complaint. In the Commission's view those comments provide additional insight into another possible explanation for the delay not acknowledged or relied on by Mr Stewart. Those contemporaneous comments are before the Commission via Mr Stewart's own filed material.[75]

• [150] The first of these two comments are contained in an email between Mr Stewart and lawyers for the respondent. Exhibit 1 in these proceedings is the affidavit of Mr Stewart, filed 15 September 2022. Attached to that affidavit is 'Exhibit N' which is an email exchange between Mr Stewart and Ms Victoria Hepburn, solicitor for the respondent. The email from Mr Stewart dated 23 July 2021 ('the July 2021 email') reads as follows:

As a side note, an issue came up during the directions hearing which is becoming pertinent. As I previously raised in correspondence with A/CE, I believe I will be entitled to claim in relation to the reprisals alleged against Metro North. You will appreciate those reprisals are a matter in the investigation. I have not brought a claim to date on the understanding that it would alter the nature of the investigation (again, raised with the A/CE). However, we are approaching the three (3) year mark since those reprisals took place and limitations are becoming a concern (See section 11(1) of the Limitation of Actions Act 1974 (Qld)).

In the circumstances, I would ask that you seek your client's instructions to confirm it waives any argument on limitations in respect of reprisal actions given the on-going investigation.

• [151] This email, in Mr Stewart's own words, and tendered in his own evidence, unambiguously records Mr Stewart's understanding of the time limits applying to his reprisal complaint as at July 2021. The email relevantly records that Mr Stewart believed:

• He was entitled to make a claim in relation to reprisals;

• He had not brought a claim at that stage because he 'understood' it would 'alter the nature' of the investigation;

• He believed he had three years within which to commence proceedings;

• He required a waiver of the time limits from the respondent at that time.

• [152] The unambiguous terminology of the July 2021 email permits the Commission to reach conclusions about Mr Stewart's state of mind at that time. It is clear from that email that Mr Stewart had considered his rights regarding the reprisal claims and had turned his mind to the issue of statutory time limits, albeit seemingly incorrectly.

• [153] Further, in very stark contrast to his more recent claims about Mr Bourke's alleged promise and the alleged agreement of the respondent to permit an extension of time, Mr Stewart plainly did not consider he had consent to file outside the prescribed time limit at that time, hence his attempt to seek confirmation of the waiver in the July email.

• [154] It appears that, up until July 2021, Mr Stewart was labouring under a serious misunderstanding that the time limitation for a reprisal complaint was solely determined by s 11 of the Limitation of Actions Act 1974 (Qld) ('LOA Act').

• [155] Section 11 of the LOA Act provides a 3 year time limit for actions involving damages for personal injuries. Section 11 of the LOA Act would arguably prescribe the time limit for a complaint made pursuant to s 42 of the PID Act (in tort), but not for a complaint made pursuant to s 44 of the PID Act.[76]

• [156] When cross examined about this apparent oversight, Mr Stewart in essence said (erroneously) that 'there is a tort of reprisal on top of the AD Act approach'.[77] Plainly, even at the time of the hearing of this matter, Mr Stewart had still not properly informed himself of the alternative procedures for making a reprisal complaint and the relevant statutory limitation periods for each procedure.

• [157] The relevant sections of the PID Act provide:

(1) A reprisal is a tort and a person who takes a reprisal is liable in damages to any person who suffers detriment as a result.

(2) Any appropriate remedy that may be granted by a court for a tort, including exemplary damages, may be granted by a court for the taking of a reprisal.

(3) If the claim for damages goes to trial in the Supreme Court or the District Court, it must be decided by a judge sitting without a jury.

(4) The right of a person to bring proceedings for damages under this section does not affect any other right or remedy available to the person arising from the reprisal.

(5) Proceedings for damages may be brought under this section even if a prosecution in relation to the reprisal has not been brought, or can not be brought, under section 41 .

(6) The Workers' Compensation and Rehabilitation Act 2003 does not apply to proceedings for damages brought under this section.

44 Complaint under the Anti-Discrimination Act 1991

(1) A person may make a complaint under the Anti-Discrimination Act 1991 about a reprisal.

(2) The complaint may be dealt with under the Anti-Discrimination Act 1991 , chapters 6 and 7 as if the complaint were about an alleged contravention of the Anti-Discrimination Act 1991.

(a) if a person commences proceedings in a court under section 42 in relation to a reprisal, the person cannot subsequently make a complaint under the Anti-Discrimination Act 1991 about the reprisal; and

(b) if the person makes a complaint under the Anti-Discrimination Act 1991 about a reprisal and the complaint is accepted under that Act, the person cannot subsequently commence proceedings under section 42 in relation to the reprisal.

(4) A complaint under the Anti-Discrimination Act 1991 about a reprisal may be made even if a prosecution in relation to the reprisal has not been brought, or cannot be brought, under section 41.

• [158] Contrary to the view expressed by Mr Stewart when giving his evidence, the PID Act does not provide for two causes of action for reprisals. There is not a tortious action 'on top' of the action available under the AD Act. The PID Act provides for alternative causes of action.

• [159] Further, the alternative causes of action require a complainant to make an irrevocable election as to which one is pursued. To the extent that s 42(4) of the PID Act leaves open other remedies, it must be read down in the context of the unambiguous limiting language that appears after it in s 44(3) of the PID Act.

• [160] On 16 August 2021 the solicitors for the respondent replied to the July 2021 email and categorically declined to waive any time limits.[78] Within less than one hour of receiving that email, Mr Stewart filed his complaint with the QHRC pursuant to the AD Act.

• [161] If Mr Stewart genuinely believed he had two causes of action (as he now asserts) it is more than a little curious that he did not attempt to pursue both actions at that time. It is even more peculiar that he elected to pursue the action that was already statute barred while apparently abandoning the tortious action that was still entirely within time.

• [162] By commencing proceedings in the QHRC pursuant to Chapters 6 and 7 of the AD Act Mr Stewart's complaint was then subject to the 1 year limitation for making a complaint.[79] By then, Mr Stewart was the better part of two years outside the time limit.

• [163] The second relevant contemporaneous comment made by Mr Stewart is found in the email accompanying his complaint.[80] Whatever misunderstanding Mr Stewart might have been labouring under in July 2021, it would seem he was at least conscious of the time limit prescribed for complaints pursuant to the AD Act by 16 August 2021. This is evident from the statement he makes in his email to the QHRC initiating his reprisal complaint:

The reason for the late complaint is that Metro North Hospital and Health Service accepted the reprisal as part of an investigation, including the enclosed letter dated 15 December 2020. I had expected that the investigation of the reprisal would come with an extension to the period of availability to commence proceedings or raise complaints in respect of the reprisal conduct.

• [164] Again, this contemporaneous record presents clear insight into Mr Stewart's state of mind regarding the time limitation at the very moment he filed his complaint with the QHRC. Curiously, in contrast to his robust but erroneous declaration of a 'three year limit' only one month earlier in the July email, by August Mr Stewart appears to appreciate that he is late in filing with the QHRC, hence the overt offer of an explanation.

• [165] In his email to the QHRC Mr Stewart reveals yet another erroneous belief to the effect that he 'thought the investigation of the reprisal complaints would come with an extension'. When cross examined about this email, he gave no coherent explanation for the basis of his belief.[81] Further, there is no evidence that he had any reasonable basis to hold such an expectation. In his email to the QHRC on 16 August 2021 Mr Stewart is, without acknowledging it directly, admitting he has made a mistake.

• [166] It is difficult to reconcile the contrasting views about time limits that are expressed by Mr Stewart in the very short period between the July 2021 email and the email to the QHRC. Regrettably the cross examination did not produce an explanation. Notwithstanding that, on the evidence that is before the Commission, the following conclusions can be made:

1. In July-August 2021 (and even at the time of hearing in 2023) Mr Stewart was labouring under a significant misunderstanding as to the availability of two separate causes of action for the same reprisals and, in all probability, the applicable limitation period for the QHRC complaint; and

1. The July email and the email to the QHRC contain no reference to LPP, the alleged promise of Mr Bourke, or the alleged agreement with the respondent. Such matters would have been well within Mr Stewart's knowledge by that time and therefore, had they been genuine factors causing the delay (as he now asserts), in all probability he would have mentioned at least one of them in his communications with the respondent's lawyers or the QHRC in that period immediately before or when he filed his complaint.[82]

• [167] In all of those circumstances there is sufficient evidence to conclude that a mistake about time limits and procedure contributed, at least partially, to Mr Stewart's failure to file within the prescribed time limitation period. This conclusion is open to the Commission regardless of whether Mr Stewart concedes or relies on his own errors as an explanation for the delay.

• [168] However, to be clear, identifying Mr Stewart's apparent mistake about procedure or limitation periods is not a task undertaken as part of the Commission's consideration of whether the 'balance of fairness' within the meaning of s 175(2) of the AD Act favours him now. It is irrelevant for that purpose because Mr Stewart has never acknowledged or relied on this apparent error as an explanation for his delay.

• [169] But in the Commission's view, the objective evidence of this error revealed by Mr Stewart's own contemporaneous communications and subsequent testimony are relevant ancillary factors for consideration of the veracity of the explanations that he does rely on.

• [170] It appears to the Commission that, rather than embrace his obvious error as an explanation for the delay, Mr Stewart has instead embarked on an elaborate reconstruction of the reasoning for his inaction between October 2019 and August 2021 and then presented it to the Commission in an attempt to establish that there were compelling reasons why he did not (or even could not) commence the proceedings within the prescribed time limit.

• [171] For all of the reasons outlined earlier, none of the explanations offered by Mr Stewart survive even the lightest objective scrutiny. They are, collectively and individually, illogical, erroneous, or unsupported by evidence. That is the Commission's conclusion even disregarding speculation that the unacknowledged errors made by Mr Stewart about procedure and time limits played a role in the delay.

• [172] The earliest written record of Mr Stewart being conscious of his rights with respect to the alleged reprisals is October 2019. Even at that point the reprisal said to have occurred in September 2018 was out of time. Between October 2019 and August 2021 Mr Stewart repeatedly referred to the reprisals and alluded to taking action. And yet, almost two full years elapsed before he finally did.

• [173] These circumstances are quite distinct from those where e.g., a lay person mistakes the time limit or inadvertently starts the wrong type of proceeding in the wrong court within time but is then out of time when they realise their error. They are also very much distinguishable from the facts in Ryle where the applicant in that matter (also a lawyer) was genuinely unaware of facts material to her reprisal complaint during the relevant limitation period.[83]

• [174] In this matter Mr Stewart, a legal practitioner, was pointedly reserving his rights to commence proceedings in respect of reprisals in correspondence as far back as 19 October 2019. He was confidently asserting those rights when he gave what he himself describes as an ultimatum to Mr Bourke on 25 October 2019.

• [175] In all those circumstances, if any waiver of the statutory time limit were to be allowed, fairness to the respondent demands that the explanations for delay be something very compelling. It ought to be more than apparent by this stage of these reasons that the Commission does not consider the explanations offered by Mr Stewart compelling.

• [176] At their highest, if one accepts that Mr Stewart genuinely believed the explanations that he now relies on prevented him from starting his proceedings, that does not alter the fact that the explanations are (separately and collectively) exclusively the product of his own very poor judgment. Importantly, there is no objective evidence that Mr Stewart's judgment was a product of having been misled by the respondent or duped into delay.

• [177] It is not the role of the Commission to penalise self-represented litigants who make simple mistakes. But tolerance for error does have limits. Were it the case that Mr Stewart's explanations revealed a single error, or errors that were a product of more than just his own poor judgment, a more sympathetic approach might have been warranted. But given the discretion to be exercised is informed by the balance of fairness 'as between the parties', fairness demands cogent explanations for such a substantial delay. None of the explanations relied on by Mr Stewart rise to that standard.

• [178] It is uncontroversial that a refusal by the Commission to deal with Mr Stewart's complaint will cause him to suffer prejudice. He will be denied an opportunity to pursue a complaint addressing (what he regards) as a serious wrong perpetrated on him by the respondent. The denial of a right to access damages or other remedies will inevitably adversely impact Mr Stewart.

• [179] But statutory time limits should not be regarded as arbitrary. They are set by the legislature to serve an important purpose to inter alia give certainty to persons or entities whose interests are affected. It is inevitable that a statutory limitation will, from time to time, defeat an otherwise meritorious cause of action.[84]

• [180] The respondent is entitled to certainty. This is particularly so when they have, for many years, been confronted by Mr Stewart's assertions about his rights to pursue the alleged reprisals. Moreover, Mr Stewart has not just blithely alluded to those rights. In correspondence and conversations, he has expressly referred to the PID Act provisions, to applicable penalties (including imprisonment), and gone so far as to use his alleged rights as leverage in his self-described 'ultimatum' to Mr Bourke.[85]

• [181] Allowing this complaint to be dealt with outside the statutory time limit will plainly have a number of adverse impacts on the respondent, not least of which will be the inevitable deterioration of quality of recall of witnesses regarding events occurring as far back as 2018. Further, in the intervening years, five material witnesses have left employment of the respondent.[86] This will create additional logistical problems with access and communication with those witnesses. Relevant documents may also prove difficult to retrieve.

• [182] All of these adverse impacts will, at the very least, add to the time and effort required to defend against Mr Stewart's complaint. That time and effort will be reflected in additional cost. But there is also some risk that those adverse impacts will contribute to the respondent being unable to present the fullest or best defence they might otherwise have had available if Mr Stewart had acted within the specified time limit.

• [183] The adverse impacts are compounded by the fact of Mr Stewart's legal qualifications. The respondent employed Mr Stewart as a lawyer and was fully aware that he was a legal practitioner. This would undoubtedly induce a greater expectation that Mr Stewart would follow through with his threats to exercise his rights if left unsatisfied. But equally, the respondent would be reasonably entitled to expect that a legal practitioner who made such overt threats of legal action was not going to do so once the statutory time limit had expired. And the longer that situation prevailed, the more reasonable that expectation would be.

• [184] Ultimately it is not necessary for the Commission's consideration of the discretion in this matter to calculate comparative prejudice to a party. It is enough to conclude that each party faces substantial prejudice.

• [185] The Commission is not fully informed, either through pleadings or evidence, of the full details of Mr Stewart's reprisal complaints. To some extent this is due to the fact that the proceedings have not yet reached a stage where Mr Stewart was required to file a Statement of Facts and Contentions. But additionally Mr Stewart's presentation of his complaint, at least in the context of these proceedings, has been unusually adumbral.

• [186] However, there are a number of facts before the Commission from which a reliable preliminary impression of the merit of Mr Stewart's complaint can be gleaned. Having regard to the original complaint filed with the QHRC on 16 August 2021 the first of four reprisals is identified as follows:[87]

Commencing an internal investigation aimed at discovery of the discloser and intimidation of them.

• [187] The immediate and significant difficulty with this reprisal allegation is that it completely ignores the elements of reprisal contained in s 40 of the PID Act. Those elements are set out above but warrant repeating. In order to succeed in his complaint, Mr Stewart needs to prove that:

• that someone caused or attempted to cause detriment to him; and

• the someone in question caused or attempted to cause detriment to him because or in the belief he (or someone else) had inter alia made a PID.

• [188] Having regard to those elements, as previously noted, there is no controversy that Mr Stewart made the PIDs and therefore, the first element is satisfied.

• [189] Mr Stewart has consistently pleaded that the commencement of the Part 9 investigation was an act of reprisal.[88] While never overtly pleaded, it can only be presumed that Mr Stewart contends that the investigation was a detriment to him. The nature of the detriment appears to be his exposure as the discloser and subsequent intimidation.

• [190] There is no particulars before the Commission at this time as to whether the investigation did ultimately expose Mr Stewart's identity as the discloser and, if it did, whether he was then subject to intimidation because of that exposure. Beyond this, there are multiple other problems with this allegation.

• [191] Firstly, Mr Stewart's own submissions contradict his complaint in that they expressly contend he was identified by certain named individuals after discussing his PIDs with them.[89] Mr Stewart nominates the relevant date of those discussions as between January and August 2018. The Part 9 Investigation was announced on or about 19 October 2018.[90]

• [192] On Mr Stewart's own evidence, it is difficult to see how the Part 9 investigation was commenced with the intention of identifying him when (according to him) he had already been identified.

• [193] But alternatively, even if that is incorrect and he had not been identified before the commencement of the Part 9 Investigation, Mr Stewart's complaint suffers a further critical flaw.

• [194] While the complaint has become more nuanced over time, in its original form it includes the particular that the investigation was aimed at 'discovery of the discloser'. After all the opportunities Mr Stewart has had to provide even a summary of details to accompany this allegation, the Commission is little better informed than the state of the pleaded complaint in August 2021. Notwithstanding this, reasonable speculation about the case open to be argued by Mr Stewart reveals significant gaps in the logic of the complaint.

• [195] Having regard to the language of s 40 of the PID Act, the elements require the contravening party to know or believe that the 'the other person or someone else' has inter alia made a PID. In the absence of particulars accompanying Mr Stewart's complaint, it is not unreasonable to speculate as to which of the limited options he might press.

• [196] It may be that his complaint will be that the contravening party knew he was the discloser. But that pleading would directly contradict the assertion that the investigation was instigated to identify him. It may be that Mr Stewart will allege that the contravening party believed he had made the PID. That complaint might suffer the same contradiction.

• [197] A complaint made in either of those terms presents a significant technical flaw i.e. how can it be that the investigation was a reprisal, commenced 'because' or in the 'belief that' Mr Stewart had made a PID if, as Mr Stewart asserts, the alleged reprisal was to discover who had made the PID.

• [198] Section 40(1)(a) of the PID Act also contemplates an indirect reprisal i.e., where 'someone else' is known or is believed to have made a PID, and reprisal action is directed at the complainant. This scenario has never been a feature of the narrative promoted by Mr Stewart, but the absence of even the most basic pleadings demands that no possibility be discounted.

• [199] The first possibility in respect of a possible pleading of an indirect reprisal would require the introduction of significant new material facts. Until this point, the inference underpinning Mr Stewart's complaints is that they were direct reprisals arising from the PIDs that he had made. There has been no suggestion by Mr Stewart, at any time since 2019, that the alleged reprisals related to a PID made by 'someone else'. If that were the case, there is an absence of evidence about that person and that PID.

• [200] Similarly, there is no suggestion that Mr Stewart contends that the chief executive acted on the belief that 'someone else' made or intended to make a PID.

• [201] But more importantly, any claim of an indirect reprisal would (almost ironically) be immediately defeated by the one morsel of detail Mr Stewart has included in his complaint i.e., that the investigation was initiated to discover the identity of the discloser. That detail included in Mr Stewart's complaint has always carried the inference that he was the discloser being revealed. If that is correct then that must confine his allegation to one of direct reprisal i.e., in response to his PID.

• [202] On the plain language of the section, a prerequisite to satisfying the elements of a direct reprisal in s 40 of the PID Act is that the perpetrator's actions are 'because, or in the belief that' the 'other person' has made a PID. Section 40 of the PID Act unambiguously requires the alleged contravener to know the identity of the 'other person'. Without that information, the contravener could not know or believe the 'other person' made a PID as required by the section.

• [203] Therefore, even if Mr Stewart is correct that the Part 9 Investigation was commenced to discover his identity as the discloser, commencing the investigation for those purposes (which is his complaint) could never be a reprisal within the meaning of s 40 of the PID Act.

• [204] Further, there is no evidence, particulars, or explanation of 'intimidation' arising from the investigation or who perpetrated it. There is no submission or evidence from Mr Stewart about how the alleged intimidation was linked to apparent knowledge of Mr Stewart having made a PID.

• [205] While Mr Stewart is not required to have filed full pleadings at this stage in proceedings one would expect that he, as a legal practitioner, would have been acutely aware of the matters the Commission was going to consider in this preliminary hearing, and that he would have attempted to present a compelling precis of the allegations and the facts supporting them, at least sufficient to demonstrate merit. If his offerings in these proceedings were an attempt to do this, they have failed.

• [206] Even if one speculates that the alleged intimidation is e.g., the alleged exclusion from committees or changing of security codes or displaying the photographs of him in 'drag',

there is no pleading or particulars presented by Mr Stewart identifying who was responsible for those alleged actions and how the actions are linked by the requisite knowledge or belief that Mr Stewart (or someone else) had made a PID. It is not enough (even for these superficial considerations) to simply say that he made a PID, that those things occurred, and to then invite a conclusion that they are causally linked. Mr Stewart must prove the causal nexus between those facts in order to meet all elements of s 40 of the PID Act.

• [207] Again, while he was not yet required to file pleadings to support his complaint, one would expect that given his multiple opportunities to do so, Mr Stewart would have at least presented a compelling precis of those allegations, including the names of the perpetrators and how their actions were causally linked to his PIDs.

• [208] For completeness it is noted that Mr Stewart has (at various times) included a reprisal complaint to the effect that the chief executive of the MNHHS initiated the Part 9 Investigation when he was the subject of one of the PIDs covered in the investigation. Despite his many opportunities to do so, Mr Stewart has provided no more detail than this. The Commission is unable to appreciate how this allegation, on its face, amounts to a reprisal within the meaning of s 40 of the PID Act. There is insufficient information available to even begin to evaluate the merit of this allegation.

• [209] The other nominated reprisal relates to the allegation that an officer of the respondent contacted Mr Stewart's new employer in May 2019, after he had resigned. The suggestion is that the officer in question made disparaging comments about Mr Stewart, apparently as an act of reprisal within the meaning of s 40 of the PID Act.

• [210] This allegation was discussed earlier in these reasons. It has never been properly particularised. Mr Stewart's evidence in cross examination, in which he was invited to provide basic particulars, was an unmitigated shambles.[91] The allegation (as best as it could be appreciated) appears to be based on multiple layers of hearsay.[92] Moreover, Mr Stewart was utterly unable to be clear about dates and, more importantly, what was allegedly said.

• [211] The evidence of Mr Stewart in respect of this alleged reprisal left the Commission entirely unable to properly understand the allegation, let alone evaluate its merit.

• [212] It is again appropriate to note that Mr Stewart is a legal practitioner. He has held that qualification for well over a decade. The principles relevant to the exercise of a discretion to waive a statutory time limit should be well understood by even the most junior legal practitioner. The Commission's consideration of merit (albeit superficially) was presumably anticipated by Mr Stewart. And yet Mr Stewart has presented no more than a confused collection of speculative and scandalous allegations that are unsupported by any cogent particulars or evidence.

• [213] Having regard to these observations there are clear grounds to, at least provisionally, conclude that there is a palpable lack of merit to Mr Stewart's reprisal complaints.

• [214] For completeness, even if one concedes that Mr Stewart might not have had an opportunity yet to overcome the serious multiple deficiencies in his claim by e.g. a comprehensive Statement of Facts and Contentions or effective cross examine of relevant personnel of the respondent, there are aspects of Mr Stewart's conduct of this preliminary proceeding that do not augur well for him convincing the Commission that his complaint is meritorious.

• [215] There are numerous references in the preceding reasons illustrating the unreliable nature of Mr Stewart's evidence. Mr Stewart's propensity to make assertions that were patently incorrect was demonstrated by his original submissions to the QHRC i.e., that the delay was caused by the respondent 'repeatedly' asking him to delay. It was demonstrated again when he unambiguously said, in solemnly affirmed testimony, that the respondent had 'waived future bars to litigation'.

• [216] Further, Mr Stewart's oral evidence was consistently unclear to the point of appearing evasive. The Commission was twice required to stand down when Mr Stewart was unable or unwilling to answer questions about material facts or produce evidence to support a controversial assertion.[93]

• [217] Throughout these proceedings the Commission was consistently left with the impression that Mr Stewart was prone to making dramatic and fanciful allegations but, when questioned, was thoroughly unable to provide plausible (or any) particulars in support.

• [218] Given the consistently nebulous nature of his evidence in these proceedings, it is not unreasonable to hold serious doubts that Mr Stewart will overcome the numerous difficulties outlined above. Mr Stewart has failed to demonstrate (even superficially) that his claims are of sufficient merit to warrant an extension of the statutory time limit.

• [219] Section 175(2) of the AD Act grants a discretion to the Commission to deal with a statute barred complaint if 'on the balance of fairness between the parties it would be reasonable to do so'. In the absence of any other provision prescribing matters to inform the discretion, this terminology ought to have its ordinary meaning.

• [220] Importantly, in circumstances where the issue in question is whether the Commission should deal with a statute barred complaint or not, the exercise of balancing fairness to each party does not mean that some middle ground must be achieved. When the outcome is binary, one party will prevail, while the other will inevitably contend the outcome is 'not fair'. A 'balance of fairness between the parties' within the meaning of s 175(2) of the AD Act requires the Commission to have regard to all of the relevant circumstances of each party, but arrive at a conclusion that is objectively fair notwithstanding that one party may suffer significant disadvantage.

• [221] There have been multiple references throughout these reasons to Mr Stewart's status as a legal practitioner. This fact forms an important context for the Commission's consideration of his explanations for the delay and presentation of merit. The balance of fairness requires that Mr Stewart's qualifications should set a higher bar for expectations as to his competence to inform himself of relevant time limits and processes. It is also an important antecedent for the evaluation of the plausibility of his explanations for delay.

• [222] All of the written communications in evidence that were authored by Mr Stewart since at least October 2019 are (unsurprisingly) in the style of legal correspondence. While Mr Stewart is perfectly entitled to enjoy the advantage of his professional skills when acting on his own behalf, he cannot then expect that consideration by the Commission of his relevant conduct in respect of the reprisal complaints will be measured against the same standard of a non-legally qualified individual. His explanations should be measured against a presumed enhanced knowledge of time limits and procedure.

• [223] An extraordinary feature of his explanations is that Mr Stewart appears to disregard what should be (for a legal practitioner) the well understood function and effect of statutory time limits. Once a potential litigant has identified even the possibility of a cause of action, they cannot simply unilaterally decide not to adhere to a prescribed limit because they consider they are somehow constrained.

• [224] However putative a cause of action might be, if it is within the contemplation of a litigant, and if they anticipated difficulty complying with a statutory time limit, they would be expected to alert a respondent to the supposed cause of action and, if possible, secure consent to an extension or waiver of the applicable time limit. In the absence of a clear agreement to an extension or waiver, the proceedings must be commenced (in whatever form possible) to protect the litigant's interests. It is difficult to accept that Mr Stewart, as a legal practitioner, would not have possessed the professional instincts to understand this.

• [225] But even where Mr Stewart has genuinely but mistakenly considered his complaint would adversely impact the investigation, or that LPP took precedence to his obligation to adhere to the statutory time limit, his mistake about these things is not the only basis for finding those explanations unsatisfactory. It is also the fact that Mr Stewart did not raise any of these alleged constraints with the respondent (in any coherent way) by a direct inquiry with the respondents about extending or waiving the applicable statutory time limit as soon as he apprehended barriers to compliance.

• [226] Mr Stewart's July 2021 email clearly demonstrates he understood he could (and should) do this. But the fact he failed to do so between October 2019 and August 2021 critically undermines the merit of his explanations which are, in the circumstances, ultimately no more than an insight into Mr Stewart's privately held views and what has now been revealed as the fundamentally incorrect reasoning that informed them.

• [227] The remaining explanations offered by Mr Stewart alleging consent in one form or another to an extension are equally extraordinary given Mr Stewart, as a legal practitioner, ought to be expected to hold certain basic skills of communication and language construction. It defies belief that a legal practitioner, objectively considering the available evidence, would have arrived at the conclusions that Mr Stewart did about the alleged promise of Mr Bourke or the alleged agreement to extend more broadly. Mr Stewart was plainly not being objective, and that conclusion of itself is a compelling reminder of the folly of a legal practitioner acting on their own behalf.

• [228] For completeness, even if Mr Stewart was not a legal practitioner, the explanations he has offered would have been unsatisfactory. But given the Commission is reasonably entitled to assume a greater degree of insight and skill from him, the explanations offered, and the poor merits overall enhance the abject weakness of Mr Stewart's arguments even more so.

• [229] No single one of the guiding principles set out above is of greater weight than the other. The application of the guiding principles when considering the discretion in s 175(2) of the AD Act requires the Commission to take an holistic approach in which each of the guiding principles is considered in conjunction with the other.

• [230] In this matter there has necessarily been a lengthy consideration on the explanations for delay offered by Mr Stewart. That is due to the unusual circumstances of Mr Stewart relying on a multitude of explanations, some of which were multilayered and complex. The extensive consideration of Mr Stewart's explanations for delay ought not to be regarded as the Commission affording that guiding principle greater weight.

• [231] Having applied the guiding principles set out above, it is not controversial that Mr Stewart's reprisal claim is out of time. While it is folly to evaluate the significance of a delay purely by reference to its length, in all the circumstances of this matter the (almost) two-year delay is substantial.

• [232] The evidence surrounding the explanations for delay reveals that Mr Stewart has repeatedly erred in his decision making. While the Commission is prepared to accept that he genuinely believed that he was constrained from commencing proceedings, he was absolutely wrong about that. None of the alleged constraints he perceived had the effect of abrogating his obligation to observe the statutory time limit.

• [233] Additionally, despite objective evidence of Mr Stewart being mistaken as to the applicable statutory time limit or the process for electing a jurisdiction in which to make his complaint (or both), he has never sought to rely on that error as an explanation. The material before the Commission supports a conclusion that, in all probability, Mr Stewart was mistaken as to the applicable time limit or, at the very least, he mistakenly believed that he could pursue both avenues of reprisal complaint prescribed by the PID Act.

• [234] While that error does not form part of the Commission's consideration as to the explanations for delay, the evidence of it in the broader factual matrix of this matter serves as insight into the veracity of the explanations offered by Mr Stewart more generally i.e., his vigorous promotion of an array explanations that are patently wrong or incapable of substantiation, while eschewing facts that point to a very plausible but personally embarrassing explanation, tends to undermine his overall credibility.

• [235] It is important to note at this juncture that the Commission does not consider that Mr Stewart has been deliberately dishonest about his explanations for delay. On the contrary, in respect of even the most dubious of contentions from Mr Stewart, it has been the impression of the Commission that he has genuinely held those views. Out of fairness to Mr Stewart it is important to be clear that the conclusions set out in these reasons are not to be read as a conclusion that Mr Stewart has been deliberately dishonest. While it is not the role of the Commission to delve into such matters without evidence, it has been the consistent observation of the Commission when dealing with Mr Stewart that factors related to his mental health are more likely the source of his ardent ambition to have the Commission believe the unbelievable.

• [236] In balancing the guiding principles there will be instances where, despite a paucity of acceptable explanations for delay, the prejudice to a party or the objective merits will be so appreciably strong that fairness would demand the complaint be dealt with. This is not the case with Mr Stewart's complaint.

• [237] The prejudice to each party is evenly balanced. The merits of Mr Stewart's reprisal complaints are more than a little difficult to see. The reprisal complaints (in their various forms) are beset with both legal and factual challenges. In some instances, the complaints are not even clearly made out. This is so despite the time that has passed, and the opportunities Mr Stewart has had to make those merits plainly seen.

• [238] The prejudice to the respondents if the complaint is dealt with after all this time is extensively discussed earlier in these reasons. There is no necessity to repeat those observations now. Suffice to say it would be an extraordinarily unfair outcome if such consequences were visited upon the respondent in circumstances where Mr Stewart has been the sole architect of the unfortunate situation that he now finds himself in. This is especially so when one considers that Mr Stewart was, at all relevant times, more than adequately possessed of the skills and information necessary to have avoided it.

• [239] Having given equal consideration to the guiding principles, for all of preceding reasons, it is the conclusion of the Commission that on the balance of fairness between the parties, it would not be reasonable to deal further with Mr Stewart's complaint.

1. Pursuant to s 175 of the Anti-Discrimination Act 1991 (Qld) Matter number AD/2022/52 is dismissed;

1. Any application for costs must be made within 28 days of the date of this decision.

[1] Exhibit L to the affidavit of Mr Stewart filed 15 September 2022.

[2] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[3] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 5).

[4] Noble v Whitelock & Ors [2020] QIRC 069, [9].

[6] [2021] QIRC 307, [100] - [103]. Citations omitted.

[7] Each affidavit of Mr Stewart was assigned an exhibit number however each attachment to each affidavit was identified by Mr Stewart as an 'exhibit'. To avoid confusion between references to exhibits in these reasons, the full description of Mr Stewart's affidavits (by reference to filing date) will be referenced when discussed.

[10] Compare attachment 1 to the Form 85 - Referral of a matter filed 22 July 2022 with paragraph 7 of Mr Stewart's submissions filed 15 September 2022, and then with paragraphs 2 and 3 of Mr Stewart's submissions filed 27 April 2023.

[12] The correspondence in question is also annexed to the affidavit of Mr Stewart filed 15 September 2022 as Exhibit L.

[13] This conclusion is further supported by Mr Stewart's own submissions filed 27 April 2023, at paragraphs 2 and 3.

[14] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[15] T 1-3, ll 40-43; See also submissions of Mr Stewart filed 15 September 2022 at paragraph 7.2.

[16] Mr Stewart's closing submissions filed 27 April 2023 at paragraph 2.

[17] Mr Stewart's closing submissions filed 27 April 2023 at paragraph 3.

[18] Mr Stewart's response to the Respondent's closing submissions filed 7 June 2023 at paragraph 2.

[19] Submissions of Mr Stewart filed 7 June 2023 at paragraph 2.

[21] Exhibit 'O' to the affidavit of Mr Stewart filed 15 September 2022.

[22] T 4-12, ll 1-10 to T 4-14, ll 1-10.

[23] T 4-14, ll 15-40; See also Exhibit 'O' to the affidavit of Mr Stewart filed 15 September 2022.

[24] Affidavit of Mr Stewart filed 15 September 2022 at paragraph 21.

[25] See Queensland Law Society, Australian Solicitors Conduct Rules 2012 (at 1 June 2012) r 5.1.2.

[26] See Fair Work Regulations 2009 (Cth) r 1.07(2)(b)(ii).

[27] See Anti-Discrimination Act 1991 (Qld) s 178 ('AD Act').

[28] The term 'legal practitioner' used in these reasons is not a reference to the strict definitions found in the Legal Profession Act 2007 (Qld). The precise status of Mr Stewart in that regard is not relevant. While it is understood that Mr Stewart has been admitted to practice, the term legal practitioner in these reasons is used generically to incorporate all forms of legally qualified individuals including those who may or may not hold a practicing certificate.

[29] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 5).

[30] Mr Stewart's closing submissions filed 27 April 2023 at paragraph 7.

[31] Mr Stewart's submissions filed 15 September 2022 at paragraphs 1.2.3 - 1.2.6, 7.8-7.9, and 13-14; TN 4-30, ll 30-45. While these explanations were not referenced in his final written submissions, Mr Stewart did not resile from them either. Consequently, they must be considered in these reasons.

[32] Exhibit 'H' to the affidavit of Mr Stewart filed 15 September 2022; T 4-29 to 4-30.

[33] Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A (pages 4 and 20).

[34] Mr Stewart's submissions filed 15 September 2022 at paragraph 1.2.

[35] Affidavit of Mr Stewart filed 15 September 2022 at Exhibit H (last paragraph).

[36] Mr Stewart's submissions filed 27 April 2023 at paragraph 7(a).

[37] Mr Stewart's submissions filed 27 April 2023 at paragraph 7(b).

[38] Affidavit of Mr Stewart filed 15 September 2022 at Exhibit H (last paragraph).

[39] Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A (page 4).

[40] Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A (page 18-19).

[41] Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A (page 20).

[42] Affidavit of Mr Stewart filed 28 March 2023 at Exhibit 'AS3-B'.

[43] Wong v Medical Board of Queensland [2006] QADT 41 at [40].

[44] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[45] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 5). At the same time, he made the submission that the respondent repeatedly asked him to delay.

[46]Affidavit of Mr Stewart filed 15 September 2022 at Exhibit H (last paragraph); Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A, page 4.

[47] Affidavit of Mr Stewart filed 7 March 2023 at Exhibit A, page 19 (264).

[49] Mr Stewart's submissions filed 15 September 2022 at paragraph 7.9.

[50] Exhibit 'H' to the affidavit of Mr Stewart filed 15 September 2022

[51] Exhibit 'N' to the affidavit of Mr Stewart filed 15 September 2022.

[52] See Bayly v Westpac Banking Corporation [2020] QCA 148, [38]; Empirnall Holdings Pty Ltd v Machon Paull Partners Ltd (1988) 14 NSWLR 523, 527-528, 534-535; Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 45, [40].

[53] There was no evidence that Mr Stewart ever received a reply to that correspondence, though it is noted that Mr Bourke appears (coincidentally) to have begun his role in dealing with the matter on or about 25 October 2019.

[54] Exhibit 'N' to the affidavit of Mr Stewart filed 15 September 2022. As an aside, the fact that Mr Stewart was seeking assurances about what he considered was the impending time limitation expiration in July 2021 speaks volumes as to his state of mind with respect to his belief or otherwise in any earlier waiver by the respondent.

[55] Exhibit 'N' to the affidavit of Mr Stewart affirmed 12 September 2022.

[60] Exhibit 'AS3-B' to the affidavit of Mr Stewart affirmed 28 March 2023.

[62] Exhibit 'A' to the affidavit of Mr Stewart filed 7 March 2023; T 4-3, ll 45-48.

[63] Page 1, Exhibit 'A' to the affidavit of Mr Stewart filed 7 March 2023.

[64] Page 20, Exhibit 'A' to the affidavit of Mr Stewart filed 7 March 2023.

[65] Page 19-20, Exhibit 'A' to the affidavit of Mr Stewart affirmed 7 March 2023.

[66] Page 20 (at 264-265), Exhibit 'A' to the affidavit of Mr Stewart affirmed 7 March 2023.

[67] Exhibit 'AS3-B' to the affidavit of Mr Stewart filed 28 March 2023.

[68] On 24 January 2020, law firm Ashurst (who had been appointed to undertake the independent investigation) issued correspondence to Mr Stewart. Relevantly, the correspondence indicated that Ashurst 'act for' Metro North Hospital and Health Service. Mr Stewart was apparently deeply aggrieved by this language because he considered it revealed something other than the 'independent' investigation Mr Bourke had 'promised'.

[70] Mr Stewart (perhaps unwittingly) admits to an abuse of process in doing this when he says he did it to 'hurry' the investigation process. See s 3.1 and s 21.1.4 of the Australian Solicitors Conduct Rules 2012.

[71] Affidavit of Mr Stewart filed 15 September 2022 at paragraph 19.

[75] See affidavit of Mr Stewart filed 15 September 2022 (Exhibit 'N') and Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[76] Section 44(2) of the PID Act provides that a reprisal complaint pursuant to that section is dealt with 'as if the complaint is about an alleged contravention' of the AD Act.

[78] See Exhibit 'N' to the affidavit of Mr Stewart filed 15 September 2022.

[79] Public Interest Disclosure Act 2010 (Qld) s 44(2); AD Act s 138.

[80] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[82] The first mention of LPP by Mr Stewart comes in his 'out of time' submission to the QHRC on 21 April 2022, 8 months after filing.

[83] As an aside, it is relevant to note that the complaint in Ryle was also dismissed because, having acquired those material facts and legal representation, the complainant failed to take immediate steps to commence her proceedings.

[84] See Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159.

[85] Affidavit of Mr Stewart affirmed 7 March 2023 at Exhibit 'A' (Pages 4, 19).

[86] Affidavit of Brett Bourke filed 17 October 2022.

[87] Form 85 - Referral of a matter filed 22 July 2022 (Attachment 1).

[88] Mr Stewart alternatively uses the term 'instituting' in his written submissions filed 27 April 2023.

[89] Mr Stewart's submissions filed 15 September 2022 at paragraph 7.1.

[90]Affidavit of Mr Stewart filed 15 September 2022 at paragraph 12.

[92] T 4-15, ll 5-35 and T 4-19, ll 10-49 to T 4-20, ll 1-43.

[93] See T 4-15 to T 4-16 and T 4-36 to T 4-39.