//
[2019] QIRC 146
General information, not legal advice.
Queensland Industrial Relations Commission
2019-10-11
Mr J
Original judgment source is linked above.
The applicant conceded he should have notified the Commission of the details for the delay.
[42] As referenced previously the respondents themselves failed to disclose material in line with directions orders and on 2 November 2018 when he requested disclosure of documentation the QPS advocate responded in part by stating:
While I will endeavour to seek the information I would have thought the opportunity for you to seek this information from within would have been far more expedient for you to do so especially in respect of matters under RTI.
[43] Police officers openly refused to produce documents under the direction of a senior officer and it appears that the QPS had not acted to obtain the material.
[44] The applicant submitted that the Commission had no "contempt of court" provisions however the Public Service Ethics Act 1994 (PSE Act) imposes an ethical duty on police to comply with orders of a Court, Tribunal, Commission or otherwise. A failure (or refusal) to comply with orders of a Commission undermines the integrity and impartiality of the QPS. Section 796 of the Police Powers and Responsibilities Act 2000 (PPR Act) requires police to help tribunals.
[45] The Commission would benefit from the appearances of the respondents, the Assistant Commissioner and Ethical Standards Command to explain why they have failed and refused to comply with orders of the Commission.
[46] The affidavit provided by the applicant was a statement of fact and does not include opinion, conclusions or submissions. The complaints about the affidavit were unfounded and add no weight to the claim that the matter be dismissed. If the Commission had concerns about deficiencies further directions could be made in lieu of striking out the application.
[47] The respondent referenced the "extraordinary amounts of paperwork produced" by the applicant most of which was produced without assistance from the respondents, however there were many more documents he could have requested but he had chosen to his own detriment not to seek them.
[48] In the matter of Sankey v Whitlam (Sankey)[6] the litigant sought disclosure of file notes, minutes of meetings, letters, telexes and notes which were the claim of privilege based on "Crown privilege". The High Court applied the principles in Conway v Rimmer:
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[7]
[49] Further, in Sankey the point was made by Stephen J_:_
the proper functioning of the . . . public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of . . . the public service . . .[8]
[50] In the matter before the Commission there were allegations of conduct that could be viewed as grossly improper functions of senior officers towards the applicant. The "Stop Bullying" application was necessary to prevent further injury being caused by the respondents.
[51] The Honourable Murray Gleeson, AC in "The Purpose of Litigation" wrote:
The Question is: What would society be like if we did not have the courts to enforce our rights, and require others (including governments) to honour their obligations? It requires very little imagination to identify some people or organisations who would be very unpleasant to deal with if there were no practical possibility that they could be taken to court.[9]
[52] In this case the public interest would be served by ensuring a powerful and secretive government agency could be put before the Commission to account for its conduct, particularly where the conduct causes injury to an employee.
[53] The application in existing proceedings should be dismissed because:
[54] The applicant relied upon a number of responses to the application to strike out the matter that were:
[55] The applicant had not demonstrated actions commensurate with the principle. The technical issues associated with the respondents' representation had no turpitude or illegality that would invoke the equitable principle of clean hands. The respondents complied to the best of their abilities within the legal framework in matters associated with the substantive matter.
[56] The applicant conveniently omitted details of information, documentation and requests under disclosure that occurred between the parties from 21 September 2018 and early October 2018. The applicant had been guilty of the same types of breach which he now alleges against the respondents.
[57] The initial application under B/2018/31 provided a list of allegations by the applicant against the QPS and a number of senior officers which under normal legal principles are the pleadings of the applicant and subsequently "disclosure" relates to those pleadings. All material relevant to the allegations in the application under the QPS control had been provided and there had been no actions by the respondent that would warrant the applicant seeking additional disclosure material.
[58] The respondents are located on the South Coast and that made contact with them at times problematic due to work and shift arrangements. The level of documentation sought by the applicant had required a significant amount of time and resources to source and in some instances amounted to three and four thousand pages of information that had to be reviewed. The claim by the applicant that "he has sought most of the required documents himself" was total fabrication and a further claim that the respondents "have failed to comply with every directions order for disclosure" was said to be disingenuous. In fact, he could not prepare his affidavit without the disclosure material having been made available. In a mention of the matter held on 29 May 2019 the applicant stated:
Well, I'll give you an undertaking, and I'll comply with that undertaking. That I will give you - I will provide an affidavit to my friend for the incidents where I have all the material that's been disclosed.[10]
[59] At a mention held on 31 July 2019 the applicant nominated only four matters of disclosure being sought that had not been disclosed. The applicant was also mischievous regarding the Solicitor Conduct Rules in that the advocate for the respondent was acting in the capacity of an employee of the State of Queensland and was not in the mode of being "in the course of legal practice" despite being a solicitor.
[60] The applicant had made no attempt to contact the Commission or the respondents in this matter during the period of the two weeks to advise he would be late with his affidavit.
[61] Whilst the applicant referenced the PSE Act and the PPR Act as statutes creating obligations on officers working in the QPS to comply with court orders, any obligation irrespective of an interpretation of the respective legislative provisions, would have to be tempered with the law on self-incrimination, privilege and in no small way the very character of the circumstances and the nature of the orders from the court.
[62] None of the officers had failed or refused to comply with Commission orders and in respect of the items awaiting disclosure, these were matters from the ESU which were being reviewed by the QPS Legal Unit as to privilege and relevance to the allegations of the applicant's initial application.
[63] It was noteworthy that the applicant explains his delay through personal issues but does not understand or accept legitimate delays when he expects information to be provided to him. The four items not disclosed were not detrimental to the applicant's capacity to present his affidavit outlining his case with the option to provide an amended affidavit.
[64] The nominated parties were not all police officers and as such not subject to the PPR Act.
[66] The general principles associated with an affidavit or pleadings is that it may be struck out if it is vague or too general so as to embarrass an opposing party who does not know what is alleged against them. A court may strike out a pleading that discloses no reasonable cause of action.[11]
[67] In this case the applicant's affidavit is littered with frivolous and vexatious allegations that failed to formulate a reasonable case in support of the allegations and the legislative criteria[12] that he is endeavouring to prove.
[68] In Callide Power Management Pty Ltd v Callide Coalfields, Jackson J on the court's exercise of discretion said:
Where the problem is one inadequate or inaccurate pleading which has a tendency to prejudice or delay a fair trial, or the pleading contains unnecessary or scandalous allegations or frivolous or vexatious allegations, . . . there tends to be a general discretion.[13]
[69] The applicant indicated that in examination his opinion can be sought on the matters he presents in evidence which is an issue for the respondents in that the material does not establish sufficient nexus that a "reasonable cause of action is disclosed". The applicant's opinion as to whether he was bullied will always be subjective while information contained in an affidavit must be objective to ensure that the pleadings/affidavit has legitimate value to present a reasonable cause.
[70] The applicant states that if not for amendments to the Act which came into effect in 2017, he would not have had a course of action against his employer and officers of the QPS who had allegedly bullied and harassed him to the extent that he suffered a psychological injury.
[71] It was inconceivable that an employee of the State Government could have been bullied and harassed for a considerable time and not sought assistance within the QPS through the Health Safety and Management Unit and Regional Peer Support Officers. It was further inconceivable that he had not:
[72] It was implausible that a Senior Constable who had undertaken legal qualifications, completed within the last twelve months would not have known of the avenues available to him to have the alleged bullying matters ceased.
[73] The issue that arises is that many years after the alleged events the applicant has now decided to take this action, nominating senior officers in the QPS, passing information on to the media and creating an unsettling environment within all ranks of the QPS in the Gold Coast Region.
[74] The impact of the application upon the QPS has included:
[75] The respondents had not made counter allegations against the applicant and provided material when and where they could in the timeframe required by the applicant.
[76] The criteria for establishing a matter as bullying under the Act is that the behaviour against a person needs to be repeated and unreasonable.[14] In Amie Mac v Bank of Queensland Ltd & Others[15] Hatcher VP provides examples of what unreasonable behaviour would be classed as bullying. The list is extensive and includes:
[77] The applicant had over twelve months to gather material and prepare an affidavit demonstrating the alleged bullying activity which had occurred over a five-year period and by five police officers.
[78] The allegations by the applicant in his application were specific however the documentation requested is not commensurate with the allegations and the applicant may have been on a "fishing expedition" for information that doesn't exist to assist in his case.
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.[16]
[80] The matters subject of consideration by the Commission were:
[81] The applicant as part of his process had incorporated the news media into his issues thereby extending the matter beyond the internal machinations of the QPS and into the broader community. This type of action was enticing that element within the community to respond to the allegations as if they were proven facts and had become problematic for the QPS in being able to manage and provide policing in the region.
[82] The applicant had not provided a reasonable cause of action and the evidence would suggest that the case is frivolous and irrespective of four pieces of undisclosed material yet to be provided, the majority of disclosure has occurred. The action is defective and should be dismissed. The ongoing prosecution of the matter by the applicant is against the public interest.
[83] At a hearing on 20 September 2019, the applicant in oral submissions addressed a number of points raised by the respondent in their written response that included:
[84] The applicant acknowledged that a number of affidavits already filed on his behalf in respect of the substantive application were to be relied upon by him to prosecute the application.
[85] An application was filed by the applicant with the Industrial Registry on 6 July 2018 pursuant to s 273 of the Act:
273 Application for a commission order to stop bullying
An employee who reasonably believes the employee had been bullied in the workplace may apply to the commission for an order under section 275.
[86] The application referenced 25 alleged incidents of bullying involving senior officers of the QPS which were later reduced to 12 alleged incidents. Additionally the number of individual respondents were reduced to four. Between the lodgement of the application and 30 July 2019 there had been some nine occasions when the parties appeared before the Commission for the purposes of the conference and a number of mentions.
[87] A review of transcript from the mentions reveals that on numerous occasions there were issues regarding the non-production of documents being sought by the applicant which occupied the time of the Commission, particularly as the QPS were not for various and legitimate reasons able to produce the documentation in a timely fashion, with the effect of undoubtedly prolonging the process.
[88] At a mention on 29 May 2019 the applicant gave an undertaking that he would "provide an affidavit to my friend for the incidents where I have all the material that's been disclosed". A further Directions Order was issued on 29 May 2019 that required:
. . . the Applicant supply to the Respondent, and file in the Industrial Registry a statement of evidence for each witness to be called (including the Applicant) which have not yet been provided and which are to be relied upon in the hearing, by 4.00 pm on Friday 12 July 2019.
[89] The applicant on 30 July 2019 filed a sworn affidavit with the Industrial Registry which was 18 days beyond the date stipulated in the relevant Directions Order.
[90] The respondent filed an Application in Existing Proceedings on 29 July 2019 seeking that the substantive matter B/2018/31 be struck out under s 541 of the Act:
The court or commission may, in an industrial cause do any of the following -
(a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(ii) further proceedings by the court or commission are not necessary or desirable in the public interest;
(c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
[91] The basis of the argument presented by the respondent was that the applicant's affidavit had been filed "over two weeks late" without reasonable cause and further that the applicant had failed to notify the Commission or the respondent.
[92] The respondent relied also upon Rule 45 of the Rules:
45 Failure to attend or to comply with directions order
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
[93] The applicant conceded in the first instance that the Commission and the respondent should have been advised of the delay and secondly there were a number of reasons advanced to explain the delay that included:
[94] The applicant submitted that a degree of leniency ought to have been afforded to him for the fact that he is a self-represented litigant.
[95] The delay of a little more than two weeks to provide the affidavit beyond the due date of 12 July 2019 was not necessarily excessive in circumstances where the application had been on foot for a period of time in excess of twelve months and a prospective hearing date was likely to be months away from being set.
[96] In any event the applicant provided to the Commission an explanation for not having complied with the "letter" of the Further Directions Order (dated 29 May 2019) that was in my view both credible and satisfactory. Also, I am unable to conclude that the respondent suffered a prejudice of any standing to enliven the use of the discretionary power. In Witten v Lombard Australia Ltd Walsh JA stated:
Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.[17]
[97] I do not accept that failure of the applicant to file his affidavit some two weeks beyond 12 July 2019 was sufficient in its own right to warrant the granting of the strike out application for the substantive matter and do so in acknowledgement of the commentary in Quinlan v Rothwell & Anor attributed to by Thomas JA:
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[18]
[98] Further on the reliance of the appellant that his status as a self-represented litigant afforded him a degree of leniency in the proceedings, I note the comments of O'Connor VP in Workers' Compensation Regulator v Bero:
I am also concerned that Mr Bero fails to appreciate the seriousness of his history of non‑compliance as he told me "I'm not worried about - that's not my point. I don't care because I'm not a lawyer." Mr Bero appears to be under a misunderstanding that as a self-represent litigant he is entitled to an unlimited amount of leniency from this Commission. A lack of legal representation is as the authorities have suggested a "misfortune, not a privilege".[19]
[99] The respondent adopted the position, in the alternative, that if the Commission was to refuse the striking out application based on the failure of the applicant to comply with the Further Directions Order of 29 May 2019, then consideration should be given to refusing to accept that affidavit in evidence for reasons that included:
[100] Effectively the applicant had not presented sufficient evidentiary material to demonstrate his case in that it was littered with frivolous and vexatious allegations that had failed to formulate a reasonable case in support of the allegations and the legislative criteria that had to be satisfied. In Callide Power Management Pty Ltd v Callide Coalfields the following extraction had been relief upon by the respondent:
Where the problem is one inadequate or inaccurate pleading which has a tendency to prejudice or delay a fair trial, or the pleading contains unnecessary or scandalous allegations or frivolous or vexatious allegations, . . . there tends to be a general discretion.[20]
[101] The applicant rejected the complaints levelled against his affidavit suggesting they were unfounded and stated that his affidavit was a statement of fact that did not include opinion, conclusions or submissions. If the Commission had concerns that the affidavit was deficient then further directions could be made rather than striking out the application.
[102] In consideration of whether the appellant's affidavit ought to be struck out, I am conscious that the application subject of this decision had been made to strike out the substantive matter B/2018/31 and had not been amended for the purposes of striking out a single affidavit that forms part of the proceedings.
[103] In this case the relevance of the applicant's affidavit is whether prima facie it sufficiently establishes that the allegations of bullying behaviour made against senior officers of the QPS have some prospects of a positive finding in the substantive proceedings.
[104] The Commission had the opportunity to examine the affidavit of the applicant not in isolation, but in circumstances where the applicant provided pleadings as part of the substantive application on 6 July 2018, comprising 33 pages, not all of which are still relevant but nevertheless some did remain relevant. Additionally, there were ten affidavits from police officers, former police officers and administration officers filed by the applicant in support of the substantive application.
[105] The position advanced by the respondent regarding the affidavit having failed to formulate a reasonable case in support of the allegations is not without some attraction, however I am inclined to rule against the respondent on the basis of the general principle enunciated in Burton v The Shire of Bairnsdale where O'Connor J stated:
Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights, and summarily disposing of an action as frivolous and vexatious in point of law, will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.[21]
[106] Whilst not expressing a view on the prospects or otherwise of the applicant in the substantive application, I can only indicate that I'm not satisfied that his application "is so obviously untenable that it cannot possibly succeed".
[107] The respondent in pursuing reasons relating to the public interest relied upon reasoning that included:
[108] The applicant argued that the public interest would be served by ensuring a powerful and secretive government agency could be put before the Commission to account for their conduct and in doing so relied upon comments from the Honourable Murray Gleeson, AC in "The Purpose of Litigation":
The Question is: What would society be like if we did not have the courts to enforce our rights, and require others (including governments) to honour their obligations? It requires very little imagination to identify some people or organisations who would be very unpleasant to deal with if there were no practical possibility that they could be taken to court.[23]
[109] The area of public interest is often difficult for a party to argue and advance which is supported by the minority judgement of Deane J in the High Court of Australia in Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia where he stated:
In the rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf. per Higgins J., Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 1) [1920] HCA 40; (1920) 28 CLR 278, at p 281.
Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary considerations of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice: Social and Historical Context" in Cappelletti and Weisner (eds.) Access to Justice, vol.II, book 1 (1978) pp.5ff.; Raz, The Authority of Law, (1979), at p.217).
In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf. the comments of Higgins J. in Australian Builders' Labourers' Federation v. Archer [1913] CthArbRp 36; (1913) 7 CAR 210, at p 217).[24]
[110] I am not convinced that the respondent had established grounds in circumstances where it was "so special or extraordinary that the public interest requires that it (the Commission) refrain from the ordinary exercise of its jurisdiction". In respect of the respondent's concerns regarding the media's conduct there are of course avenues available to an aggrieved party in those circumstances to address inaccurate reporting of events, if in fact that had occurred, which doesn't extinguish an applicant's right to progress an application of this nature. Therefore, in all circumstances I am not satisfied that grounds exist upon which the substantive application should be struck out in the public interest.
[111] Accordingly, the application to strike out matter B/2018/31 is dismissed.
[2] Emmett, 'Practical Litigation in the Federal Court of Australia: Affidavits' (2000) 20 Australian Bar Review 28, 28; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, 635 [175].
[3] Industrial Relations (Tribunal) Rules 2011.
[5] Rajski v Scitec Corporation Pty Ltd, unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16 July 1986.
[6] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.
[7] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 citing Conway v Rimmer [1968] UKHL 2; (1968) AC 910, 940.
[8] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.
[9] (2009) 83 ALJ 601, 602-8.
[11] Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 2011.
[13] Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205, [17]-[32].
[15] Amie Mac v Bank of Queensland Ltd & Others [2015] FWC 774, [99].
[16] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63.
[17] Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405, 412.
[18] Quinlan v Rothwell & Anor [2001] QCA 176, [29].
[19] Workers' Compensation Regulator v Bero [2019] QIRC 36, [20].
[20] Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205, [17]-[32].
[21] Burton v The Shire of Bairnsdale (1908) "The Argus" Law Reports, Vol. XIV, 529.
[22] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63.
[23] (2009) 83 ALJ 601, 602-8.
[24] Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 61 ALJR 393.
Treanor
State of Queensland
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Conway v Rimmer [1968] UKHL 2; (1968) AC 910
Mio Art Pty ltd v Macequest Pty Ltd [2013] QSC 211
Callide Power Management Pty Ltd v Callide Coalfields [2014] QSC 205
Amie Mac v Bank of Queensland Ltd & Others [2015] FWC 774
Quinlan v Rothwell & Anor [2001] QCA 176
Workers' Compensation Regulator v Bero [2019] QIRC 36
Re The Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 61 ALJR 393
(1987) 72 ALR 1
(1920) 28 CLR 278
(2006) 229 CLR 577
(1978) 142 CLR 1
(1987) 61 ALJR 393