Cronin v Department of Agriculture, Fisheries and Forestry - [2014] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Cronin v Department of Agriculture, Fisheries and

Forestry [2014] QIRC 184

PARTIES:

Cronin, John

(Applicant)

v

Department of Agriculture, Fisheries and
Forestry

(Respondent)

CASE NO:

TD/2013/34

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

18 November 2014

HEARING DATES:

28 - 21 July 2014

1 August 2014
24 September 2014 (Respondent's submissions)
1 October 2014 (Applicant's submissions)
3 October 2014 (Submissions in reply)

MEMBER:

Deputy President Swan

ORDERS :

1.	Application granted with caveats attached.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR - REINSTATEMENT - late disclosure of documents - production of further evidentiary material permitted - possibility of further evidence to be adduced - further hearing dates sought

CASES:

Public Interest Disclosure Act 2010

APPEARANCES:

Mr L. Reidy, Counsel instructed by Creevey Russell
Lawyers.
Mr J. Merrell, Counsel instructed by Crown Law.

Preliminary Decision

[1]      On the last day of the formal hearing of the substantive matter [TD/2013/34] - John Patrick Cronin and the State of Queensland - (Department of Agriculture, Fisheries and Forestry), the Respondent sought leave to file and rely upon an affidavit from Mr Jens Sorensen sworn on 1 August 2014.
[2]      That application was opposed by the Applicant.
[3]      The substantive matter relates to the termination of employment of Mr Cronin by the Respondent.
[4]      The Applicant says that he was dismissed because the Respondent knew that he had made a public interest disclosure (Public Interest Disclosure Act 2010) to the former Crime and Misconduct Commission about alleged maladministration at the Helidon Cattle Tick Facility; or that the Applicant had made a public interest disclosure pursuant to the PID Act to the CMC about alleged maladministration at the Helidon Cattle Tick Facility.
[5]      Mr Sorensen is employed as Records Manager in the Records Section, Strategic and
Corporate Services Division of the Crime and Corruption Commission – formerly
the CMC.
Why has this application been made by the Respondent?
[6]      The Mention of the substantive matter was heard on 11 June 2104.

The CCC was ordered to produce documents described in the Applicant’s Schedule.

[8]      Those documents were received by the Registry on Friday 25 July 2014.
[9]      The matter was listed for hearing on Monday 28 July 2014.
[10]   The Respondent could not peruse this file until the close of hearing on Tuesday 29 July 2014.
[11]    During the cross-examination of Ms Keily Smith, (Manager Governance and Ethics and CCC Liaison Officer of the Department) the Applicant produced two documents, Exhibit 25 and Exhibit 26.
[12]   Briefly, Exhibit 25 related to a 3 page facsimile sent from the Applicant to Ms Patane, Senior Complaints Officer of the CCC on 9 November 2012. The facimile consisted of a cover sheet completed by the Applicant upon which his name was recorded, plus other documents typed by the Applicant not recording his name. These documents provided information relevant to the Helidon Cattle Tick Facility
which had been sent from the Applicant’s work facsimile machine;

and
Exhibit 26 which was a three page file note memorandum written on 6 August 2012
by Ms Patane and 14 pages of attachments following an interview by Ms Patane and
Mr Jeffrey Farrah of the CCC with the Applicant on 2 August 2012, with the
Applicant’s name being recorded in Ms Patane's file note. This Exhibit was
tendered by the Applicant, noting the objection made by the Respondent.
[13]    Both Exhibits 25 and 26 were on the CCC produced file and were not files held by the Respondent.
[14]   The Respondent says that the Exhibits were tendered by the Applicant for the purpose of proving that the Respondent dismissed the Applicant because the Respondent, presumably through Ms Smith, knew or believed that the Applicant had made a public interest disclosure pursuant to the PID Act to the CCC about alleged maladministration at the Helidon Cattle Tick Facility.

The Respondent’s primary complaint is that:



The Exhibits were not served on the Respondent in any witness statement or disclosed to the Respondent at any time prior to the commencement of the hearing.
 The Respondent was unable to view the documents until the end of the
second day of the hearing.
 There has been no non-compliance by the Respondent of the
Commission’s Directions Orders.
 The Exhibits were not documents in the possession or under the control
of the Respondent.
 The Respondent is concerned as to whether the documents sent by the
CCC to Ms Smith were in the form so disclosed in the Exhibits.

What relief is sought by the Respondent?
[16]   The Respondent seeks leave to lead evidence to rebut the suggestion that by virtue of the Exhibits the Respondent, through Ms Smith, knew or believed that the Applicant had made a public interest disclosure pursuant to the PID Act about alleged maladministration at the Helidon Cattle Tick Facility.
[17]   It is through Mr Sorensen’s evidence that the Respondent will be able to rebut that

suggestion because his evidence will show what documents the CCC did send to
Ms Smith.
[18]    The Respondent says that to do otherwise would deny it the opportunity to produce
evidence about an important claim in the Applicant’s case.
The Applicant’s opposition to this application

The Applicant’s claim is as follows:

 The Respondent has failed to meet its obligations of disclosure.
 The Respondent would have the same copies of the Exhibits disclosed by the CCC on its analogue files. The question posed by the Applicant is why the Respondent failed to produce those files.
 The Attendance Notice to Produce on 3 July 2014 required inter alia
that:
"all documents concerning any complaint made by Mr Cronin
concerning the Department from the period of 1 July 2012 to 5 April 2013, including file notes of conversations between employees of the Department and the CCC concerning the complaint or the identity of the
Applicant."

[20]    That category of documents bears upon the email from the CCC dated 6 March 2013
notifying Ms Smith of Dr Cronin’s identity as a whistleblower to the CCC. This had arrived before the termination of Dr Cronin’s employment. The Applicant says that

document should have been disclosed to it. However, that document had to be
obtained from the CCC.
[21]    The production of the Exhibits from the CCC was made available to both parties at the same time. Each party had the responsibility to make arrangements to inspect the files. The Applicant says it inspected the files as soon as possible on the Monday of the trial.
[22]   The Applicant had fulfilled its obligations to disclose the documents and the Applicant did not know what the documents contained until they were examined on the first day of the trial. That the Respondent did not get to the documents until the end of the second day of hearing was a problem of its own making.
[23]   The Applicant has stated its concern that Mr Sorensen’s evidence is directed to
reconstructing what occurred based on a review of the database.
[24]   The Applicant states that it would be unfairly disadvantaged were the Commission
to accede to the Respondent’s claim in that the Applicant’s case has now closed.
The Applicant's submissions as to how the matter should now proceed
[25]    The Applicant submits that the application be refused.
[26]   In the alternative, if the Respondent is granted leave, then the following should occur:

(a) Leave be given to cross-examine Mr Sorensen

(b)

The Respondent make a list of documents setting out the contents of and produce for inspection the following files and documents:

i.

The DAFF file and any documents concerning the CCC matter referred to by CCC file No. 12-3611;

ii.

The DAFF file and any documents concerning the CCC matter referred to by CCC file No. 12-3574;

iii.

The DAFF file and any documents concerning the CCC matter referred to by CCC file No 12-2138;

iv.

The DAFF file and any documents concerning the CCC matter referred to by CCC file No 12-1329;

v.

Any other DAFF files and documents concerning CCC complaints by or about Dr Cronin.

(c)

The Respondent make a list of documents of and produce for inspection documents in the following categories or of the following descriptions:

(i)

Documents including emails in the period from April 2013 concerning complaints by Dr Cronin to the CCC;

(ii)

Documents including emails in the period from April 2013 concerning complaints about Dr Cronin to the CCC;

(iii)

Documents including emails in the period from April 2013 concerning complaints about Dr Cronin contacting the media about any matter;

(iv)

Documents including emails in the period from April 2013 concerning complaints about Dr Cronin in relation to Bovine
Johne’s Disease;
(v)  Documents including emails in the period from April 2013 concerning complaints about Dr Cronin in relation to the Helidon Tick Facility.

(d) Ms Smith be recalled for further cross-examination;
(e) Following disclosure and inspection, Dr Cronin be given leave to call any further witnesses or evidence arising from the disclosed documents and to cross-examine any other witness of the State who has given evidence in the proceedings in relation to matters arising from the further disclosure.

[27]   The Applicant also seeks costs pursuant to s 335(1)(b) 1.10.14 in respect of this application and any further dates.
Decision as to the further progression of this matter
[28]    The assertions being made as to whether or not the Exhibits in question were in the possession of the Respondent and that there was a failure on its part to properly disclose those documents are not easily addressed. The Commission has no specific evidence, either documentary or through direct evidence, to resolve this dispute.
[29]   I have determined to permit the Respondent to call Mr Sorensen to give evidence. In reaching this decision I have taken into account:

 On the material before the Commission, it is not possible to make a finding that the Respondent had the documents in its possession and had failed to disclose them;
 That the documents were delivered from the CCC on the Friday before
the hearing had commenced on the following Monday;
 While the Applicant may have had the opportunity to peruse all of those documents, on the Monday morning of the hearing, it is not
unreasonable to accept the Respondent’s submissions that it could not
address those issues until the end of the hearing on the second day;
 The Respondent should have the opportunity to properly address,
through relevant evidence, the material contained within those Exhibits;
 Further, the Applicant has the opportunity to cross-examine Mr Sorensen. The effect and nature of such evidence given by Mr Sorensen will be duly considered by the Commission.

[30]    As to the further requests made by the Applicant, I would state as follows.
[31]    The requests made by the Applicant concerning further evidence being given by Ms Smith and the production of items identified under paragraph 26 of this decision will be issues for further debate and submission before the Commission upon resumption of the hearing.
[32]    It is not my intention to permit this matter to continue without some surety of what is to occur in further allocated hearing days. The parties should be aware that if any of the requests made by the Applicant are granted, then both parties should be ready to proceed during the allocated days. In effect, no further hearing days should be sought.
[33]    The questions of costs being awarded is a matter for further submissions, if required.
Order of the Commission

[34] The application is granted.

[35] Order accordingly.

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Citations

Cronin v Department of Agriculture, Fisheries and Forestry [2014] QIRC 184

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	The Exhibits were not served on the Respondent in any witness statement or disclosed to the Respondent at any time prior to the commencement of the hearing.
	The Respondent was unable to view the documents until the end of the second day of the hearing.
	There has been no non-compliance by the Respondent of the
Commission’s Directions Orders.
	The Exhibits were not documents in the possession or under the control of the Respondent.
	The Respondent is concerned as to whether the documents sent by the CCC to Ms Smith were in the form so disclosed in the Exhibits.

	The Respondent has failed to meet its obligations of disclosure.
	The Respondent would have the same copies of the Exhibits disclosed by the CCC on its analogue files. The question posed by the Applicant is why the Respondent failed to produce those files.
	The Attendance Notice to Produce on 3 July 2014 required inter alia that:
"all documents concerning any complaint made by Mr Cronin
concerning the Department from the period of 1 July 2012 to 5 April 2013, including file notes of conversations between employees of the Department and the CCC concerning the complaint or the identity of the
Applicant."

(d)	Ms Smith be recalled for further cross-examination;
(e)	Following disclosure and inspection, Dr Cronin be given leave to call any further witnesses or evidence arising from the disclosed documents and to cross-examine any other witness of the State who has given evidence in the proceedings in relation to matters arising from the further disclosure.

	On the material before the Commission, it is not possible to make a finding that the Respondent had the documents in its possession and had failed to disclose them;
	That the documents were delivered from the CCC on the Friday before the hearing had commenced on the following Monday;
	While the Applicant may have had the opportunity to peruse all of those documents, on the Monday morning of the hearing, it is not
unreasonable to accept the Respondent’s submissions that it could not
address those issues until the end of the hearing on the second day;
	The Respondent should have the opportunity to properly address, through relevant evidence, the material contained within those Exhibits;
	Further, the Applicant has the opportunity to cross-examine Mr Sorensen. The effect and nature of such evidence given by Mr Sorensen will be duly considered by the Commission.