Hitchcock v State of Queensland (Office of Industrial Relations) (No. 6)
[2025] QIRC 106
•24 April 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hitchcock v State of Queensland (Office of Industrial Relations) (No. 6) [2025] QIRC 106 |
PARTIES: | Hitchcock, Elizabeth v State of Queensland (Office of Industrial Relations) |
CASE NO: | GP/2023/31 |
PROCEEDING: | General Protections Matter – application in existing proceeding for a witness to appear by video link |
DELIVERED ON: | 24 April 2025 |
| HEARING DATE: | 23 April 2025 |
| MEMBER: | Hartigan DP |
| HEARD AT: | Brisbane |
ORDER: | The application for leave for the witness, Ms Cox, to give evidence by video link is refused. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the Respondent has applied for leave for a witness to give evidence by video link – where the witness has work commitments on some of the listed hearing dates – where the Commission has discretion to grant leave – whether the Commission should grant leave after consideration of the relevant factors – whether the Respondent has made out a persuasive case – where leave is not granted for the witness to appear by video link. |
| LEGISLATION: | Federal Court of Australia Act 1976 (Cth), s 47A Industrial Relations Act 2016 (Qld), s 447, s 451 |
| CASES: | Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd (2020) 147 ACSR 521 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 Khalilidehkordi v Gold Coast Hospital and Health Service & Ors (No. 2) [2024] QIRC 183 Schafer v Brisbane City Council [2024] QIRC 229 |
| APPEARANCES: | Allan Bullock Solicitors & Advocates for the Applicant. Ms J. Marr instructed by Crown Law for the Respondent. |
Reasons for Decision
The substantive proceeding in this matter is a general protections application, the hearing of which is currently listed to commence before the Queensland Industrial Relations Commission ('Commission') on Monday, 28 April 2025 until Tuesday, 6 May 2025.
The Respondent has applied for leave for one of its proposed witnesses, Ms Yasmin Cox, to give evidence by video link at the substantive hearing.
The Applicant objects to the application.
Relevant Legislative Provisions and Practice Direction
The source of the Commission's power, relevantly, is contained in ss 447(2)(b) and 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Section 447 of the IR Act provides for the functions for the Commission as follows:
447 Commission's functions
…
(2)The commission must perform its functions in a way that—
…
(b)avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
Section 451 of the IR Act provides for the general powers of the Commission as follows:
451 General powers
(1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)Without limiting subsection (1) – the commission in the proceeding may:
(a)give directions about the hearing of a matter; or
(b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c)make an order it considers appropriate.
Additionally, Practice Direction 8 of 2021 of the Queensland Industrial Relations Commission ('Practice Direction 8 of 2021') confirms, that a decision by a Member of the Commission to approve the taking of evidence, by telephone or by video link, is an exercise of discretion.[1]
[1] Practice Direction Number 8 of 2021 – Taking evidence by telephone or video link.
Practice Direction 8 of 2021 is set out in the following terms:
The purpose of this Practice Directions is to:
· to ensure that all parties are aware of the approach to the taking of evidence by telephone and/or video link in the ordinary case;
· to streamline the taking of evidence by these means;
· to avoid delay and disruption; and
· to maintain the decorum of the proceeding.
…
General
1 Evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters. Telephone evidence will not be taken where credibility is in issue.
2 Evidence by telephone or video link may be given only at the discretion of the Member.
…
Several authorities in the federal jurisdiction have considered the application of s 47A(1) of the Federal Court of Australia Act 1976 (Cth) ('FCA Act'). Section 47A(1) of the FCA Act provides that the court may, for the purpose of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.
In Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd,[2] Stewart J relevantly distilled the following principles from several authorities as follows:[3]
[2] (2020) 147 ACSR 521 ('Auken').
[3] Ibid [28] – [30].
[28] I respectfully agree with and adopt what was said by Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11], namely that in deciding whether or not to allow AVL evidence:
The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.
[29] His Honour also said (at [11]) that the exercise of the discretion conferred by s 47A(1) of the Act must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of AVL.
[30] I also respectfully agree with and adopt what was said by Jackson J in Australian Securities and Investments Commission v Wilson (2020) 146 ACSR 149; [2020] FCA 873 (Wilson) at [36] that the process of deliberation required in order to exercise the s 47A(1) discretion properly is accurately described as a balancing exercise.
I consider that the principles referred to in Auken are of assistance as guiding principles for the exercise of the discretion by the Commission in this matter.[4]
[4] See Schafer v Brisbane City Council [2024] QIRC 229; Khalilidehkordi v Gold Coast Hospital and Health Service & Ors (No. 2) [2024] QIRC 183.
Should the Commission exercise its discretion to permit Ms Cox to give evidence by video link?
The Respondent relied on an affidavit of Ms Cox filed on 16 April 2025 in support of its request that Ms Cox be excused from appearing in person and be granted leave to appear by video link.
In summary, Ms Cox referred to the nature of her current role, which is based in Sydney, together with several work commitments during the week of the 28 April 2025 as reasons why leave should be granted for her to appear by video link.
Ms Cox had previously worked as the Executive Director, Specialised Health and Safety Services, Office of Industrial Relations. Recently, she commenced employment with SafeWork NSW as Executive Director of the division 'Regulatory Capability and Harm Prevention'.
In her new role, Ms Cox claims she has a 'substantial workload and commitments' and that she oversees 'approximately 280 employees'.
Ms Cox further states that the following work commitments impact her ability to attend the hearing in person:
(a)on 29 April 2025, she has a meeting with the NSW Mental Health Commissioner;
(b)on 1 May 2025, she is required to attend executive meetings including meetings with the Deputy Secretary, SafeWork NSW; and
(c)on 2 May 2025, she is required to present to the NSW Parliament to give evidence to the Standing Committee on Law and Justice regarding Dust Disease.
It was confirmed by Counsel for the Respondent that these commitments would also preclude Ms Cox being available to give her evidence by video link on those days.
Relevantly, however, Ms Cox does not identify any work commitments on any other day that the trial is listed which would impede her availability to give evidence in person. In this regard Ms Cox states:[5]
At present I have availability to give evidence in relation to Ms Hitchcock's proceeding on 30 April 2025 and 6 May 2025.
[5] State of Queensland, 'Form 20 - Affidavit of Yasmin Cox', Affidavit in Hitchcock v State of Queensland (Office of Industrial Relations), GP/2023/31, 16 April 2025, [10].
Ms Cox states, however, that the prospect of travelling from Sydney to Brisbane is a significant imposition given the nature of her role.
Counsel for the Respondent indicated that should the request not be successful then it was intended that Ms Cox be called to give her evidence in person on 6 May 2025.
In response, the Applicant objects to Ms Cox be granted leave to appear by video link for, inter alia, the following reasons:[6]
[6] Elizabeth Hitchcock, 'Outline of Submissions: Objection to Respondent's application for leave to appear via video link', Submission in Hitchcock v State of Queensland (Office of Industrial Relations), GP/2023/31, 23 April 2025, [14].
a) in the premises at [12], the Respondent has not put on any persuasive evidence that the Commission should depart from the orthodox position such that COX ought be permitted to appear by video link.
b) the Proceeding commenced by the Applicant is serious and has had serious implications on her former employment, current employment and professional reputation;
c) the evidence of COX at the final hearing will be significant to the ultimate findings in the Proceeding where credit and reliability is squarely in issue and is anticipated to include:
i)COX's role in the IEG Process (re Adverse Action 6) and Parallel Investigation (re Adverse Action 5];
ii)COX's role in the suspension meeting on 9 December 2022;
iii)COX's role in fixing the OIR's self-imposed deadline to complete the VRTP licences by December 2022;
iv)COX's objective to “replace” the Applicant as lead assessor from September 2022 and that then transpiring in December of 2022;
v)COX's meetings and communications with Kabbali (also a Respondent witness);
vi)COX's communications with Holman (also a Respondent Witness) incl getting rid of EH + what she was told about the 17 Oct 2022 meeting
vii)COX's communications with McKay (also a Respondent witness); and
viii)COX's communications with Gleeson (also a Respondent witness).
d) the standard of proof in this proceeding is on the balance of probabilities, the probative value of such evidence will inform the strength of the evidence required to obtain that standard;
e) for the Applicant to have a fair opportunity to disturb the status quo, the Applicant needs an unimpeded opportunity to cross-examine COX; and
f) the Applicant intends to put documents to COX and to avoid the loss of any forensic advantage, the Applicant ought not be required to provide them ahead of time.
Further, on the basis of submission made on behalf of the Applicant's solicitor, I am satisfied that Ms Cox would only be required to attend the Commission in Brisbane for several hours on the day she is required to give evidence and that it is not expected that her evidence will go beyond one day.
It is accepted on the uncontested evidence before the Commission contained in Ms Cox's affidavit that she has work commitments on 29 April, 1 May and 2 May 2025 which limits her availability to give evidence on those days. However, the Respondent does not propose to call Ms Cox on those days. Rather it proposes to call her to give evidence on either 29 April 2025 (if the request for her to appear by video link is granted) or, alternatively, on 6 May 2025 (if Ms Cox is required to give evidence in person).
Whilst Ms Cox contends that travelling from Sydney to Brisbane is a significant imposition because of the nature of her role, no further particulars are provided to support that contention.
It is noted that the role that Ms Cox is employed in appears to be a senior public service role and that in the course of the performance of that role Ms Cox has substantial workload commitments and oversees approximately 280 employees. However, those matters alone do not provide a basis for Ms Cox to give her evidence by video link.
It is not unusual for witnesses in proceedings before this Commission to be employed in senior roles in both the public and private sector. For such a witness to be excused from giving evidence in person, it is expected that full particulars of any significant impediment to them attending in person would be provided. That has not been provided in this matter and, indeed, Ms Cox has indicated that she is available to give evidence on either 30 April 20205 or 6 May 20205.
In addition to the facts and circumstances referred to above, a further relevant consideration is the nature and the substance of the evidence to be given by Ms Cox.
A review of the affidavits of Ms Cox filed in these proceedings on 28 June 2024 and 26 September 2024 identifies that Ms Cox disputes a number of factual allegations made by the Applicant. Clearly on the face of the affidavits, there will be a contest of fact between, inter alia, the Applicant and Ms Cox. The credit of both the Applicant and Ms Cox is potentially in issue. I accept the Applicant's submissions that Ms Cox's evidence will be of some significance, and I consider her to be a critical witness in these proceedings.
The Applicant further contends that it is intended to put a number of documents to Ms Cox during the course of cross-examination and will lose any forensic advantage if required to provide the documents to Ms Cox ahead of time.
I consider that the circumstances of this matter weigh in favour of Ms Cox giving her evidence in person. Whilst Ms Cox is unavailable to give her evidence during three of the listed hearing days, she has confirmed that she is available on 6 May 2025 and, further, Counsel for the Respondent has confirmed that Ms Cox would be called to give evidence on 6 May 2025 if the current application is unsuccessful. Whilst I accept that Ms Cox holds a senior role in the New South Wales public service that fact alone does not provide a basis for her to be excused from giving her evidence in person. It is incumbent upon the Respondent to 'make out the case'[7] for Ms Cox to give her evidence by video link.[8] It has failed to do so with respect to the current request.
[7] The Respondent has failed to place any persuasive matters before the Commission.
[8] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152, [78].
I consider that the traditional forensic benefits of a witness appearing in person should not be dismissed lightly. In this matter, it is proposed that Ms Cox give evidence about matters that are factually in dispute and that the credit of Ms Cox (and also the Applicant) will need to be assessed. From a practical perspective, a large number of documents are also intended to be put to Ms Cox. These are matters which weigh in favour of Ms Cox giving her evidence in person.
Accordingly, having considered the facts and circumstances of this mater, it is determined, on balance, that it is in the best interests of the administration of justice that Ms Cox give her evidence in person.
Order
I make the following order:
1.The application for leave for the witness, Ms Cox, to give evidence by video link is refused.
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