Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Hitchcock v State of Queensland (Office of Industrial Relations) (No. 4) [2024] QIRC 270
PARTIES:	Hitchcock, Elizabeth (Appellant) v State of Queensland (Office of Industrial Relations) (Respondent)
CASE NO:	GP/2023/31
PROCEEDING:	Application in existing proceeding for disclosure Application in existing proceeding to strike out
DELIVERED ON:	19 November 2024
MEMBER: HEARD AT: HEARD ON:	Hartigan DP Brisbane 19 November 2024
ORDER:	1. The Applicant's application filed on 15 November 2024 seeking orders in terms of paragraphs 1, 3 and 4 of the application is dismissed. 2. The Applicant's application filed on 15 November 2024 seeking an order in terms of paragraph 2 is granted. 3. Costs of the application filed on 15 November 2024 are reserved. 4. The Applicant's application filed on 18 November 2024 is dismissed. 5. Costs of the application filed on 18 November 2024 are reserved.
CATCHWORDS:	GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – DISCLOSURE – Application in existing proceedings for disclosure of two legal advices – where Respondent objects to the disclosure on the basis that the documents are subject to legal professional privilege – whether legal professional privilege has been established – whether legal professional privilege has been waived – finding of waiver of legal professional privilege over one of the legal advices – application for disclosure granted in part GENERAL PROTECTIONS – APPLICATION IN EXISTING PROCEEDINGS – STRIKE OUT – Application in existing proceedings to strike out paragraphs of Respondent's Response and counterclaim – application dismissed
LEGISLATION:	Industrial Relations Act 2016 (Qld) ch 8, pt 1 Industrial Relations (Tribunals) Rules (Qld) r 41, r 46
CASES:	Australian Competition & Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 Australian Agricultural Company Limited v AMP Life Limited [2006] FCA 371 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258 Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97
APPEARANCES:	Mr G. Allan, Counsel, instructed by Allan Bullock Solicitors & Advocates for the Applicant Ms J. Marr, Counsel, instructed by Crown Law for the Respondent

Reasons for Decision

Delivered ex tempore, revised from transcript

First Application

On 15 November 2024, the Applicant filed an application seeking orders that:
1.       The respondent disclose the legal advice from Crown Law dated 8 June 2023, referred to in the unredacted copy of the briefing note PM-06, by 4 pm on Tuesday, 19 November 2024 ('Order 1');
2.       The respondent disclose the legal advice from Crown Law dated 2 August 2023, referred to as "Attachment 3" in the unredacted copy of briefing note PM-07, by 4 pm on Tuesday,
19 November 2024 ('Order 2');
3.       The respondent disclose the information provided by Crown Law by Gavin Gleeson, to prepare the legal advice dated 2 August 2023, and referred to as "Attachment 2" in the unredacted copy of briefing note PM-07, by 4 pm on Tuesday, 19 November 2024
('Order 3');
4.       The respondent pay the applicant's costs of and incidental to the interlocutory application filed by the applicant on 15 November 2024 ('Order 4').
The Respondent objects to the application and maintains that it has not waived privilege. By way of background, I refer to the decision of Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258 ('Hitchcock (No 1)'). In that decision, orders were issued requiring that:
1. The Respondent is to disclose to the Applicant an unredacted copy of briefing note
PM-06 and briefing note PM-07 by 4pm on 11 November 2024.
2. The Applicant's application for disclosure of the legal advice referred to in
paragraph 24 of Mr Peter McKay's affidavit is dismissed.

Those orders were complied with. The unredacted version of the briefing notes referred to legal advice as provided by Crown Law. I will detail those references further below. It is suffice to say that the Respondent maintains privilege over the documents in circumstances where it says, because of the decision,[1] it was compelled by the Commission to disclose the unredacted briefing note.
[1] Hitchcock v State of Queensland (Office of Industrial Relations) [2024] QIRC 258 ('Hitchcock (No 1)').
Statutory Framework and Legal Principles
In Hitchcock (No 1), the relevant statutory framework was identified as follows:
[27]     The IR Rules sets out the powers of the Commission in relation to orders for further disclosure:
41      Directions orders
(1)The court, commission or registrar may make an order (a directions order) about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
(2)A directions order may, for example, relate to the following—
…
(o)        requiring disclosure of documents;
…

46 Duty of disclosure

(1)If a directions order requiring disclosure of documents is made, a party must disclose any document that—

(a)is directly relevant to the proceeding or a matter in issue in the proceeding; and
(b)is in, or comes into, the possession of the party.

(2)A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
(3)Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

Further, in Hitchcock (No 1), I referred to the relevant legal principles[2] in the following terms:
[2]     Hitchcock (No 1) (n 1) [28]-[35].
[28]     In the Queensland Local Government Superannuation Board v Allen ('Allen') the Court of Appeal considered whether the respondent in that proceeding had implicitly waived legal professional privilege over a letter containing legal advice.
[29]     Her Honour Philippides JA set out a summary of the relevant legal principles with respect to legal professional privilege as follows:
[4]A person entitled to the benefit of legal professional privilege may lose the protection provided by that privilege because of implied or imputed waiver.    While waiver, strictly speaking, involves an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege), in some cases waiver will be imputed even though that consequence was not intended by the party losing the privilege. Such conduct on the part of the person entitled to the benefit of the privilege will ordinarily involve or relate to a limited actual or purported disclosure of the contents of the privileged material.

[5]While in Attorney-General (NT) v Maurice waiver of legal professional privilege by imputation or implication of law was stated to be based on notions of fairness, those notions do not, as was clarified in Mann v Carnell and reiterated in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd, involve "some overriding principle of fairness operating at large". Rather, notions of fairness are to be considered in the context of conduct which is inconsistent with the maintenance of the confidentiality. As was stated in Osland v Secretary, Department of Justice, waiver of the kind presently in question "reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect". That judgment is one "to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances".
(citations omitted).

[30] Further, in Allen, Burns J observed as follows:
[50]Legal professional privilege is "more than an aspect of civil and criminal procedure and more than a rule of evidence"; it is a rule of substantive law. It may be "availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings". There is no differentiation in legal effect between the two categories of legal professional privilege and, as such, either may be invoked to resist the disclosure of a document in the course of a proceeding where to do so would reveal a communication falling under either category. The principle underlying legal professional privilege is that "a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications". Without the privilege, the administration of justice "would be greatly impeded or even rendered impossible". It rests not only on the confidence reposed by the client in the legal adviser but the necessity, in the interests of justice, of protecting those communications from disclosure. Although confidential communications between the client and lawyer are protected, the privilege exists for the benefit of the client and not the lawyer. A court may examine documents where there is a disputed claim of privilege, and should not be hesitant to do so. In appropriate cases, a court may also permit cross-examination of a deponent of an affidavit claiming privilege.

Onus
[31] The party claiming that it is entitled to a privilege claim must establish the factual foundation for the claim. Burns J considered the application of the onus in Allen as follows:
[51]As the party asserting an entitlement to claim privilege over the advice, the Board had the onus of proving the facts on which the claim for privilege was said to be founded. This therefore required the Board to establish that the advice contained confidential communications for the dominant purpose of either obtaining legal advice or furthering existing or anticipated litigation or for both such purposes. These facts were established by the affidavits filed on behalf of the Board. Indeed, it was not disputed that, at the time when the advice was provided, it attracted legal professional privilege. However, as the party alleging that privilege had been impliedly waived, Ms Allen bore the onus of proof on that issue, and that was the real question for determination on the hearing of the application in the court below.

[32] Once the factual basis for the claim of privilege has been established, the onus of establishing the waiver of privilege rests with the party asserting that privilege has been waived. In Sanrus Pty Ltd and Ors v Monto Coal Pty Ltd and Ors [sic] ('Sanrus') Flanagan J summarised the relevant principles as follows:
[28]The party asserting that privilege has been waived bears the onus of establishing the waiver of privilege.

[29]In relation to issue waiver specifically, the defendants submit that the following principles may be derived from the authorities.

"…

(a)The mere fact that a party puts its state of mind in issue on the pleadings does not give rise to an implied waiver of privilege: Federal Commissioner of Taxation vRio Tinto Ltd (2006) 151 FCR 341 at [65]; The Queensland Local Government Superannuation Board v Allen[2016] QCA 325 at [71] (Burns J, McMurdo P (at [1]) and Philippides JA (at [7]) agreeing).

(b)There will be no waiver of privilege where a party merely joins issue with an allegation made by the opposing party that he, she or it possessed a particular state of mind: Allen at [71].

(c)There will be an issue waiver when a party has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence: Rio Tinto at [52]; Arup at [36]; Allen at [7], [71];

(d)But it is not enough to establish a waiver of privilege that the state of mind asserted relates to a legal position and it is likely that a party obtained legal advice in respect of that legal position: Ferella v Offıcial Trustee in Bankruptcy (2010) 188 FCR 68 at [65] ; Archer Capital 4A Pty Ltd v Sage Group PLC (No 3) [2013] FCA 1160; 306 ALR 414 at [48] (both cited with approval, Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [28], 36], [37]); and see Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118 at [78]-[79], noting that the 'Undisclosed Matters' included questions of contractual performance: [19(a)]);

(e)The ultimate question is whether, as part of the privilege holder's case, an assertion has been made that lays open the privileged communication to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege: Allen at [71]. Put another way, the question is whether it would be unfair in the sense explained by the majority of the High Court in Mann v Carnell to permit reliance on legal advice for forensic advantage while at the same time preventing the opposing party from having access to it: Allen at [73]."

Implied waiver of privilege
[33] After analysing the relevant authorities with respect to implied waiver of legal professional privilege Burns J, in Allen, summarised the relevant principles able to be distilled from those authorities as follows:
[69]The decisions just examined inform the following summary of the principles applicable to a determination as to whether legal professional privilege has been impliedly waived:

(a)a person may waive privilege without intending that result; the test is objective and privilege may be waived regardless of the subjective intention of the privilege holder;
(b)privilege will be waived where the conduct of the privilege holder is inconsistent with the maintenance of confidentiality in the communication which the privilege would otherwise protect;
(c)the focus is on the conduct of the privilege holder, not the party attempting to destroy the privilege;
(d)whether there is relevant inconsistency is to be evaluated in accordance with the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances;
(e)the privilege will not be lost merely because there has been a reference by the privilege holder to the privileged communication in a pleading or an affidavit, although it will be lost if the advice is reproduced in full in the pleading or affidavit;
(f)whether a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of the advice as a whole so as to amount to an implied waiver with respect to the whole of the advice will again depend on the context and circumstances of the case;
(g)in such cases, the context can include the nature of the matter in respect of which the advice was received, the evident purpose behind making the relevant disclosure and the legal and practical consequences of limited rather than complete disclosure;
(h)where there has been disclosure of a privileged communication contained in the document, and the document deals with a single subject-matter, it will be unfair to allow a party to use part of the document and claim privilege as to the remainder; at least so far as the document concerns the same subject-matter.

A particular kind of inconsistency
[34] Further, it is necessary to analyse the acts or omissions of the privilege holder to determine if such conduct is inconsistent with the maintenance of privilege in the relevant communication. The principles with respect to this approach were set out by Burns J in Allen as follows:
[70]In the application of the above principles to a given case, the court must analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of privilege in the relevant communication. Because the result of any such analysis will turn on the particular context and circumstances of the case at hand, other cases in which implied waiver has been considered provide only limited assistance. Nonetheless, some broad themes have emerged from the case law in relation to particular kinds of conduct. One of those themes concerns what is sometimes referred to as "issue waiver", that is to say, conduct in connection with the prosecution or defence of a litigated claim by reason whereof an otherwise privileged communication is put in issue. That may be because the privilege holder has advanced a claim, mounted a defence or in some other way placed reliance on the privileged communication to advance its interests in the litigation.

[71]In cases of this kind, it has been held that where "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication", the privilege in the communication will be waived. It has also been held that it "is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind". Indeed, that is just another way of saying that implied waiver can only come about through the acts or omissions of the privilege holder, and not the party seeking to destroy the privilege. Waiver cannot be contrived by such a party, whether by the contents of that party's pleading or otherwise. Lastly, it has been held that the question is not whether the privilege holder has put their state of mind in issue in the proceeding but whether the contents of an otherwise privileged communication have either directly or indirectly been put in issue by the privilege holder.[164] That may occur where a party pleads reliance on the contents of legal advice to justify a claimed state of mind but it will not occur where the party is merely joining issue with an allegation made by the opposing party that he, she or it possessed a particular state of mind. The "mere fact that a party pleads a cause of action that includes their state of mind as a material fact, or otherwise puts their state of mind in issue in the proceedings, does not necessarily give rise to an implied waiver in respect of legal advice that may have been received by the party, even if that legal advice may be relevant to the party's state of mind". In the end, the question is whether, as part of the privilege holder's case, an assertion has been made that lays open the privileged communication to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. As Hodgson JA held in Council of the New South Wales Bar Association v Archer:
"It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege."

[72]I respectfully agree with what has been held in the cases to which I have referred in the preceding paragraph. They each conform with the principles derived from the joint judgment in Mann v Carnell and assist on the application of those principles to disputes about implied waiver arising in the context of a proceeding.
[73]Plainly, much more than a passing reference to legal advice having been taken is needed before privilege in that advice will be lost. Indeed, even where the substance or effect of a legal advice is disclosed, it does not necessarily follow that privilege has been impliedly waived. In that circumstance, the purpose of the disclosure and the extent to which the substance or effect of the advice has been, or is proposed to be, relied on by the privilege holder in the litigation will be important considerations. What is also clear is that a party to litigation cannot construct a case for waiver through its own pleadings. Even where the privilege holder's state of mind is an issue in a proceeding, the taking of advice and the content of that advice will be facts beyond reach of the other party unless the privilege holder has attempted to boost its case by reliance on the advice in some way. On the other hand, if the privilege holder has sought to justify its position (or state of mind) by reference to the substance or effect of legal advice it has received, such conduct will be inconsistent with the maintenance of confidentiality in the advice. In any such case, the privilege holder has put the legal advice in issue in the proceeding as something supporting the claim or defence. In those circumstances it would accordingly be unfair in the sense explained by the majority in Mann v Carnell to permit reliance on the advice for forensic advantage while, at the same time, preventing the opposing party from having access to it.

[35] In Sanrus, Fallnagan J relevantly noted that whether there is an implied waiver of legal professional privilege will vary according to the circumstances of each case, the specific state of mind that is being asserted and the nature of the legal position to which the state of mind relates. His Honour continued as follows:
[33]This is evident from Commissioner of Taxation v Rio Tinto Ltd37 (Rio), which the defendants relied upon in support of the principle. The case concerned an appeal from an objection decision. Rio requested the Commissioner to provide the "usual particulars of all matters, things, circumstances or events" taken into consideration by the relevant decision-maker in reaching the conclusion that dividend payments made to Rio arose out of dividend stripping. In response, the Commissioner identified a schedule of documents. The Commissioner subsequently refused to disclose several of the documents in the schedule on the ground of legal professional privilege. Rio claimed that privilege had been impliedly waived by the Commissioner's response to Rio's request for particulars. The Full Court of the Federal Court noted that "[m]odern discussions on issue waiver usually commence with the decision of the Full Court of the Supreme Court of New South Wales in Thomason v Campbelltown Municipal Council". That case concerned undue influence. After quoting the well-known passage of Jordan CJ (at 358-359), the Court stated:

"As Jordan CJ remarked, in undue influence cases, the plaintiff necessarily puts in issue his or her own state of mind. An allegation of undue influence on the plaintiff's mind may be met by evidence that the plaintiff received advice from an independent third party, as for example, a legal adviser. By bringing the suit, the plaintiff brings the matter of influence before the Court (and into the public domain). If he or she received relevant legal advice, the Court would be required to assess the degree of the alleged influence on the plaintiff and the countervailing effect of the advice."[3]

[3] Hitchcock (No 1) (n 1) [28]-[35] (citations omitted).

The parties have also referred me to a number of authorities. In Australian Agricultural Company Limited v AMP Life Limited,[4] Cowdroy J observed:
[4] [2006] FCA 371 ('Australian Agricultural Company Limited v AMP Life Limited').
[31]     In Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347 the New South Wales Court of Appeal was required to decide whether privilege was waived in respect of advice concerning the legal remedies available to the plaintiff, where the exclusive election of a particular remedy was only binding if a person had knowledge of their other options at the time the election was made. In respect of the privilege Jordan CJ said (at 358-9):
'Hence, in effect, one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice.'
[32]     In Rio Tinto, Sundberg J stated (at [43]):
' … the question whether the respondent has acted in a manner inconsistent with the maintenance of the privilege remains. In my opinion, however one approaches the question (as to which see [44] and [45]), he has so acted. The inconsistency arises from the combination of the following three facts:
·the respondent has, by his Statement, raised as an issue in the instant proceedings his states of mind;
·the respondent has, by his response to the applicant's request for particulars of his Statement, disclosed that the privileged scheduled documents had a bearing on those states of mind; and
·the respondent has refused to produce those documents in answer to the first notice to produce.'
[33]     The above authorities establish that the conduct of a party will be inconsistent with the maintenance of privilege if the nature and extent of legal advice has been raised, whether directly or by necessary implication, by that party as an issue in the proceedings. This will usually occur where a state of mind has been positively pleaded in circumstances where legal advice given would be specifically pertinent to the formation of that state of mind or where a party's understanding of their legal position is critical to their defence.
[34]     However, I cannot accept the submission of AACo that any positive defence mounted by AMP which raises its state of mind necessarily constitutes a waiver of privilege. In my opinion, in order to waive privilege a party must assert a belief which is likely to have been, or is explicitly said to have been, materially dependent upon legal advice given to that party. In that case the proof or otherwise of the belief is dependent upon the legal advice and accordingly privilege is waived. This is the position in cases where the dispute relates to a party's understanding of its legal position at a given point in time, such as Thomason, Rio Tinto, Ampolex and Fort Dodge.[5]
Application of the principles
[5] Australian Agricultural Company Limited v AMP Life Limited (n 4) [31]-[34] (emphasis in original).
Briefing Note PM-06
The Applicant seeks disclosure of the Crown Law advice referred to in briefing note
PM-06. The relevant passages appear under the heading "Key Issues" and are as follows:
· On 8 June 2023, Crown Law advised that, in their view, having regard to the nature and seriousness of the allegations against Ms Hitchcock, it would be open to a decision‑maker to determine to commence a disciplinary process in respect of them.
· On 13 June 2023, Ms Barry commenced a Show Cause Notice - Liability for Disciplinary Findings for your considerations and opted to continue Ms Hitchcock's suspension from duty for a further period of three months until 15 September 2023 (Attachment 3).
The Respondent relied on an affidavit of Ms Robinson, Lawyer, Crown Law, who deposed to the fact that Crown Law provided the advice of 8 June 2023. The advice was said to be "confidential and provided for the dominant purpose of advising as to the commencement of a potential show cause disciplinary process regarding the Applicant." I am satisfied, consequently, that the advice is privileged on the basis of legal professional privilege.
Mr McKay does not assert that the Crown Law advice dated 8 June 2023 had a bearing on his state of mind. This perhaps is not surprising, given the stated purpose of the advice was to advise as to the commencement of a potential show cause disciplinary process against the Applicant and that, subsequently, that process was commenced prior to
Mr McKay's involvement in the matter.
The reference to the advice under the heading "Key Issues" does no more than factually state that Crown Law provided an advice about the matter in the terms described on
8 June 2023. There is no evidence to support a conclusion that there has been an implied waiver of legal professional privilege with respect to the Crown Law advice dated 8 June 2023. Consequently, the Applicant's application with respect to the Crown Law advice of 8 June 2023 is dismissed.
Briefing Note PM-07
The stated purpose of briefing note PM-07 was "to consider the commencement of a show cause notice decision on disciplinary findings and proposed disciplinary action towards Ms Hitchcock." There are references under the heading "Key Issues" and "Notes" to advice being obtained from Crown Law. I will deal with each of the headings separately.
Under the heading "Key Issues", an advice from Crown Law was referred to by
Mr Gleeson as follows:
·        You considered the response submitted by Ms Hitchcock and directed Crown Law advice be sought and provide assistance in the drafting of a Show Cause Notice – Decision on Disciplinary Finding and Proposed Disciplinary Action, proposing a disciplinary penalty of termination of employment.
·        During the considerations in providing advice, Crown Law sought clarifying information from the investigator into this matter while considering the responses submitted by Ms Hitchcock. You will need to consider the information that has been provided separately to Crown Law by the investigator which they relied on in providing settled advice (Attachment 2).
·        On 2 August 2023, Crown Law provided advice for your considerations (Attachment 3). You should consider that advice in your decision making. In their advice, Crown Law included a recommendation that although the OIR Human Resource Delegation Manual October 2020 provided delegation for you to continue a disciplinary process towards Hitchcock, through an abundance of caution you should consider approaching the Director‑General, Department of Education to provide powers through the execution of an instrument of delegation to make disciplinary findings in relation to Ms Hitchcock which would ensure that there can be no question that you hold the necessary delegation to make the findings set out in the draft letter drafted by Crown Law.
·        On 10 August 2023, such Instrument of Delegation was settled (Attachment 4).
It is apparent that the substance of the advice, insofar as it discloses advice provided regarding the operation of the OIR Human Resource Delegation Manual, was that the manual provided a delegation to Mr McKay to continue with the process, but that, out of an abundance of caution, it was recommended that an instrument of delegation be settled.
Ms Robinson deposes to Crown Law providing an advice to the Respondent on 2 August 2023 that was "confidential and provided for the dominant purpose of advising as to the continuation of the show cause disciplinary process regarding the Applicant."
On this basis, I am satisfied that the advice referred to under the heading "Key Issues", and later under the heading "Notes", is privileged on the basis of legal professional privilege.
In turning to whether privilege has been waived by reference to the extracts of the briefing note under the heading "Key Issues", regard must be had to the decision Mr McKay was determining for the relevance of considering his state of mind.
The Applicant contended before me that the issue of delegation goes to the decision‑maker's, that is Mr McKay's, state of mind, because without the appropriate delegation, the decision is made without proper authority. However, neither Mr McKay's affidavit or the notes he authors at the end of briefing note PM-07 identifies that he had formed a belief that was dependent on the legal advice insofar as it related to issues going to his delegated authority.
There is no evidence at all that the advice provided with respect to the delegated authority was relied on by Mr McKay in the formation of his belief that the appropriate penalty to propose was termination of employment. I am not satisfied that the disclosure of the fact of the advice and the effect of it was conduct consistent with a waiver of legal professional privilege.

I now turn to Mr McKay's references to the advice under the heading "Notes". The relevant passages with respect to that heading are as follows:
I have carefully considered all of the material contained in this email, including the response made on behalf of Ms Hitchcock and the advice from Crown Law.
I accept the advice from Crown Law about some of the issues that could be raised. On the matter of Mr Holman's interview proceeding, the formal issuing of the terms of reference, I am aware that the investigator was provided with verbal approval to commence under those terms in order to interview Mr Holman before he commenced leave.
The Crown Law's comment about the relative seriousness of allegation 3 is noted, however, I am most concerned about the relationship between the allegation and allegations 1 and 2. The nature of Ms Hitchcock's role is highly relevant. She is employed under the PO stream and is a reasonably senior public service officer. As a professional and senior public service officer, the expectation of her ethical behaviour are high. On this allegation, I also note the Crown Law comments about the relevance of previous approval to release documents to VRTP. On that occasion, she sought approval which indicated to me that she knew this was something not to be done lightly or that was within her responsibility, that release was approved for a different purpose, she had between that time (August) and 9 December been formally advised that she was replaced as lead auditor.
That she felt the need to seek approval for the August release but then not in December, given those changed circumstances is of serious concern. Again, the relationship with allegations 1 and 2 are also of concern.

On the matter of allegation 4, this was conduct that arose during the course of the investigation and not something about prior conduct that was discovered. The latter would have necessitated a review of the terms of reference but not the former. I do accept the Crown Law view that in future this would be best dealt with post the investigation report. ...

The Respondent contends in its submissions[6] as follows:
25.     As is clear from the above, prior to the 2 August 2023 advice being obtained, Mr McKay had already independently determined that he was satisfied the four allegations were substantiated and that the appropriate penalty to propose was termination.
26.     That conclusion was reached after considering the material before him, including the applicant's show cause response of 7 July 2023.
27.     Mr McKay's direction that Crown Law prepare a draft show cause letter for his consideration was consistent with the determination that he had already independently reached, and was not for the purpose of vindicating or validating that decision.
28.     The extent of the subject matter of the 2 August 2023 advice as revealed by the briefing note of 16 August 2023 is as follows:
In their advice, Crown Law included a recommendation that although the OIR Human Resource Delegation Manual October 2020 provided delegation for you to continue a disciplinary process towards Ms Hitchcock, through an abundance of caution, you should consider approaching the Director-General, Department of Education to provide powers through the execution of an Instrument of Delegation to make disciplinary findings in relation to Ms Hitchcock which would ensure there can be no question that you hold the necessary delegation to make the findings set out in the draft letter drafted by Crown Law.
29.     That instrument of delegation was subsequently obtained.
[6] Respondent's submissions filed on 18 November 2024, [25]-[29].
The Respondent further contends[7] as follows:
31. As at 16 August 2023, the date of the second briefing note, Mr McKay simply affirmed that resolve, stating:¹¹
I wish to proceed with the finding that the allegations are substantiated, and to proposed a disciplinary penalty of termination of employment. [sic]
32. In the circumstances, there is an insufficient basis to find that Mr McKay's determination to issue the 24 August 2023 letter was materially dependent on the contents of the 2 August 2023 advice. He does not rely on it to justify his decision.
[7] Respondent's submissions filed on 18 November 2024, [31]-[32].
This submission is seemingly at odds with Mr McKay's affidavit filed on 25 June 2024. At paragraph 26 of that affidavit, Mr McKay states, "On 16 August 2023, I considered the matter again". He then provides a summary,[8] of sorts, of his notes from the briefing note, absent any reference to the Crown Law advice.
[8] Affidavit of Mr McKay filed on 25 June 2024, [26].
It is apparent that, in forming his state of mind, and in particular when regard is had to the notes, that Mr McKay considered the matter again and that the notes identified that, in reviewing the matter again, he had regard to Ms Hitchcock's response and the Crown Law advice.
The notes also reveal that the advice went beyond issues of delegated authority as seemingly represented in the Respondent's submissions at paragraph 28.
The Respondent contends that Mr McKay's reasoning under the heading "Notes" reveals that he has reached his own autonomous conclusion as to the disciplinary allegations against Ms Hitchcock. The Respondent submits that Mr McKay does not simply adopt the Crown Law advice.
While I accept that Mr McKay's notes do not suggest that he wholesalely adopted the advice, it is apparent that he accepted components of that advice in forming his state of mind.
Relevantly, after stating that he had, inter alia, carefully considered the advice from Crown Law, Mr McKay uses the words, "I accept the advice from Crown Law about some of the issues that could be raised".
Mr McKay also states that "Crown Law's comment about the relative seriousness of Allegation 3 is noted" and, further, he states "[o]n this allegation, I also note the Crown Law comments about the relevance of previous approval to release documents to VRTP."
It is apparent from these extracts that Mr McKay accepted and noted aspects of the advice in the formation of his state of mind. In the absence of the Crown Law advice, the full extent of the matters going to the formation of Mr McKay's state of mind are not apparent. Consequently, in the circumstances of this matter, there is an unfairness to the Applicant in the privilege being maintained.
I consider on the material before me that the conduct of Mr McKay is inconsistent with the maintenance of the privilege and that the formation of his state of mind was materially dependent upon the legal advice he refers to in the notes attached to briefing note
PM-07.
The Applicant also seeks disclosure of the information referred to in Attachment 2, being the information provided separately by Mr Gleeson to Crown Law.
I accept the evidence contained in Ms Robinson's affidavit that the information was provided by the Respondent to Crown Law for the dominant purpose of Crown Law providing legal advice and is privileged.

For the same reasons with respect to my determination of the matters under the heading "Key Findings", the mere reference to that material being provided and in the absence of there being any evidence that it was considered and relied on by Mr McKay, I do not consider that the privilege with respect to the documents referred to as "Attachment 2" has been waived.
Consequently, the application insofar as the orders sought in terms of paragraph 1, 3 and 4 of the application are dismissed. The application insofar as the orders sought in
order 2 is granted. Costs are reserved.
Second Application
On 18 November 2024, the Applicant filed an application seeking that paragraphs 1A to 58 of the Respondent's amended Response[9] be struck out. The application was made on 18 November 2024, being two days before the trial was listed to commence on
[9] Amended Response and Counterclaim filed by the Respondent on 14 November 2024.
20 November 2024, after having previously been adjourned on two occasions.
The Response is composed of five separate parts. The impugned paragraphs fall within: Part 1, Summary of the Respondent's Position ('Part 1'); Part 2, Material Facts ('Part 2'); and Part 3, Response to Alleged Contraventions of the Act ('Part 3').
The Applicant contends that Parts 1, 2 and 3 of the Response do not comply with r 47(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules').

Rule 47(2) of the IR Rules provides as follows:
47 Response to applications
(1)If the court, commission or registrar considers it appropriate to help effectively dispose of an application, the court, commission or registrar may direct a party to file a response to the application by a stated time.
(2)A response must be in the approved form and—
(a)admit or deny, with or without qualification, each statement of fact made in the application; and
(b)state whether the relief claimed is agreed to or opposed.
...
Further, the Applicant contends that there is no provision in the IR Rules that expressly or impliedly authorises a respondent to plead in a response:
(a)a summary of the respondent's position; or
(b)its own non‑responsive version of what is described as material facts, including evidence in the form of attachments containing correspondence and file notes; and
(c)a general and largely non‑responsive response to alleged contraventions of the Act.
By way of background, I note procedurally that a number of steps have been taken with respect to the filing of pleadings in this matter. Relevantly:
(a)the Applicant filed the application commencing the proceedings on 26 October 2023;
(b)the Respondent filed a response on 24 November 2023;
(c)the Applicant filed an amended application on 23 January 2024;
(d)the Respondent filed an amended response on 1 March 2024;
(e)the Applicant filed a further amended application on 31 July 2024;
(f)the Applicant filed a second further amended application on 8 November 2024; and
(g)the Respondent filed a further amended response ('Response') pursuant to directions issued by the Commission on 14 November 2024.
Relevantly, the form of the Respondent's Response insofar as it being comprised of five separate parts, including relevantly, Part 1, Part 2 and Part 3, which are the parts in which the impugned paragraphs appear, have been included in the response since 24 November 2023.
It has been held that it is not appropriate to adopt a pedantic approach in determining whether or not to strike out pleadings.[10] In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[11] her Honour, Collier J distilled the following principles from a number of key authorities with respect to the main purpose of pleadings as follows:
(a)to give notice to the other party of the case it has to meet;
(b)to avoid surprise to that party; and
(c)to define the issues at trial thereby allowing only relevant evidence to be admitted at trial and the trial to be conducted efficiently within permissible bounds.
[10]Australian Competition & Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972, [14] ('ACCC v Craftmatic').
[11] [2016] FCA 987.
The power to strike out is to be employed sparingly and only in a clear case.[12] In considering the adequacy of pleaded facts, the court should adopt a sensible and robust approach. If the object of the pleadings is met, the striking out of the pleadings will be unnecessary.
[12] Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97.
In Australian Competition & Consumer Commission v Craftmatic Australia Pty Ltd,[13] his Honour, Logan J relevantly observed at paragraph 14 that:

A pleading must be read as a whole. The countervailing consideration is whether, accepting it must be so read, the pleading fairly puts the other party on notice as to the case to be met. A pleading is but a means to the achievement of procedural fairness and of the efficient use of judicial resources and those of the parties by the identification of what is truly at issue.
[13] ACCC v Craftmatic (n 10) [14].

Turning to the pleadings as a whole, the Response[14] is a response to the second further amended application. The application contains broad‑ranging statements and allegations with respect to the alleged conduct of the Respondent and its employees. The Response is, however, responsive in terms set out in r 47(2) of the IR Rules to the application, notably at paragraphs 60 to 105 of the Response. Consequently, I am satisfied that the Response complies with r 47(2) and more generally places the Applicant on notice as to the case to be met.
[14] Amended Response and Counterclaim filed by the Respondent on 14 November 2024.
Further, and as noted above, the pleadings must be read as a whole and must be considered within the context of the proceedings. The context includes that the Applicant has commenced civil penalty proceedings alleging that the Respondent has engaged in adverse action in contravention of the Industrial Relations Act2016 (Qld) ('IR Act'). If the Applicant can successfully establish, inter alia, that adverse action occurred, then the onus shifts to the Respondent to contend that the adverse action occurred because of a reason other than a prohibited or prescribed reason under the IR Act. This requires the Respondent to positively plead rather than respond to those issues.
With respect to Part 1, being paragraphs 1(a) to 3 of the Response, I note that paragraph 1(a) and paragraph 2 are responsive to paragraph 5 of the application, and paragraphs 1 to 5 of the application, although noting that the application contains repeated paragraph numbering, presumably in error. The remainder of paragraph 1 clearly states the denial by the Respondent to the allegations that are made in the application. The purpose of the paragraph appears to be aimed at placing the Applicant and the Commission on notice as to the matters contained in sub‑paragraphs (1)(a) to (1)(e), and the matters in issue.
Further, the material facts are set out in Part 2 of the Response. From these facts, it is apparent, in the context of the pleading as a whole, that the material facts relied on by the Respondent when addressing whether there was any causal connection between the alleged exercise of a workplace right and the alleged taking of adverse action. These facts are relied on by the Respondent to plead to matters at paragraphs 41 to 59 of the Response. It is also appropriate and necessary for the Respondent to include such material facts being consistent with a requirement contained in Practice Direction Number 4 of 2021.
Whilst I accept the Applicant's submission that the Response should not have attached to it evidence in the form of the attachments referred to in the Response, I further note that the Response filed on 14 November 2024 is not filed with those attachments. Accordingly, in the circumstances, nothing of particular significance arises from those references, other than viewing them as the particularisation of evidence that will be led during the course of the hearing.
It follows that I am satisfied that the Response complies with r 47(2) of the IR Rules, and consequently, the application to strike out is dismissed.
However, before I conclude, I do, however, consider it necessary to note the timing of this application. It was emailed to the Registry after the close of business on Friday,
15 November 2024. Accordingly, it was not filed until Monday, 18 November 2024. The hearing having been adjourned twice already, is to commence tomorrow, being 20 November 2024.
Whilst the amended Response was filed pursuant to directions on 14 November 2024, the form and structure of that Response, as I have already stated, has not been altered since the first response was filed on 24 November 2023. Albeit there have been amendments made to the document. The fact that the Applicant has figuratively sat on the application and did not, effectively, file the application until two days before the hearing had the potential to derail the hearing from commencing as scheduled, and prejudicing the Respondent as a consequence.
Given the application failed on other grounds, it is not necessary for me to consider whether the discretion to strike out should have been exercised in the face of such a delay in bringing an application. However, taking such steps in such a manner does not generally accord with the efficient, fair and just management of the case, and the Commission accordingly discourages parties from conducting themselves in such a manner.
Orders
For the reasons set out above I make the following orders:
1.The Applicant's application filed on 15 November 2024 seeking orders in terms of paragraphs 1, 3 and 4 of the application is dismissed.
2.The Applicant's application filed on 15 November 2024 seeking an order in terms of paragraph 2 is granted.
3.Costs of the application filed on 15 November 2024 are reserved.
4.The Applicant's application filed on 18 November 2024 is dismissed.
5.Costs of the application filed on 18 November 2024 are reserved.

[2024] QIRC 270

19 November 2024