Hitchcock v State of Queensland (Office of Industrial Relations) (No. 7)
[2025] QIRC 114
•30 April 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 7) [2025] QIRC 114
PARTIES:
Hitchcock, Elizabeth
(Applicant)v
State of Queensland (Office of Industrial Relations)
(Respondent)CASE NO:
GP/2023/31 PROCEEDING:
General Protections Application – application in existing proceeding to set aside an attendance notice
DELIVERED ON:
30 April 2025 HEARING DATES: 29 April 2025
MEMBER: Hartigan DP
HEARD AT: Brisbane
ORDER:
Pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011 (Qld), the Form 32 – Request for Attendance Notice issued by the Industrial Registry on 17 April 2025 to Ms Alex Wells is set aside.
CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the Respondent filed an interlocutory application to set aside an attendance notice to give evidence – where the witness is an employee of Crown Law – where the Applicant did not file any affidavits of the witness being called prior to the hearing – whether the evidence has any relevance to the current proceedings – whether the Applicant has proved that there is a sufficient legitimate forensic purpose to call the witness – the attendance notice is set aside.
LEGISLATION: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 16.08
Industrial Relations (Tribunals) Rules 2011 (Qld), r 58, r 61
CASES: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743
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
[1]On Tuesday, 22 April 2025 at 4.55pm, the Applicant's solicitor emailed, by way of service, a Form 32 – Request for Attendance Notice on Ms Alex Wells, a lawyer engaged by Crown Law, the legal representatives of the Respondents. The attendance notice requested that Ms Wells attend the hearing in order to give evidence.
[2]The Respondents have applied to have the attendance notice set aside. The Respondent relies on two grounds, which it has described as a procedural ground and a substance ground.
Procedural Ground
[3]Turning to the procedural ground, the Respondent contends that the application should be set aside due to the Applicant's failure to comply with earlier directions of the Commission. As noted above, the attendance notice was served on Ms Wells by email on Tuesday, 22 April 2025 at 4.55pm. The hearing commenced on Monday, 28 April 2025. Friday, 25 April 2025 was Anzac Day and, consequently, a public holiday. Accordingly, the attendance notice was served with only two full business days' notice before the trial commenced.
[4]A mention was listed on 23 April 2025 regarding an unrelated matter. During the course of that mention, the Respondent's counsel also raised the fact that the attendance notice had been served on Ms Wells the previous afternoon. It was indicated that the Respondent was not aware of what evidence was sought to be adduced by the Applicant from Ms Wells, but given that she was a lawyer engaged by Crown Law for the Respondents, it was likely that when that information was to hand, that the Respondent would object to the notice.
[5]In response, the Applicant's solicitor indicated at the mention that an outline of evidence proposed to be adduced from Ms Wells would be provided by the Applicant to the Respondent on the morning of 24 April 2025, being the last business day before the trial was due to commence. However, that was not done.
[6]On 24 April 2025, the Respondent filed this application, objecting to the attendance notice and requesting that it be set aside pursuant to r 61 of Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules'). There were no grounds listed on the application, but no criticism is made of that, because of the Applicant's failure to provide the outline of the proposed evidence as it indicated it would.
[7]Consequently, it has been necessary to deal with the application during the course of the hearing, which has resulted in the disruption to the trial plan and has caused consequential delays to the progression of the hearing. It is unfortunate that this matter has been dealt with in such a way when, on the submissions made on behalf of the Applicant, the Applicant has been on notice of Ms Wells' role in drafting the legal advice from at least 12 December 2024.
[8]The Commission has issued a suite of directions in this proceeding. The purpose of the directions is to ensure, from a case management perspective, that the proceedings are conducted in a fair and efficient manner and, importantly, that each of the parties are placed on notice of all of the legal and factual issues that the other party contends well in advance of the hearing. One of the ways that these case management objectives are achieved is by issuing directions, including with respect to the filing of pleadings and affidavit evidence. The directions in this proceeding have included, inter alia, a requirement that the parties file and serve an affidavit of each of the witnesses it intends to call at the hearing.
[9]The Respondent raises the fact that the Applicant did not produce an affidavit of Ms Wells and, consequently, it has not complied with the directions. The Respondent contends that such a failure is a procedural deficiency, insofar as it now seeks to call Ms Wells, and forms a basis to set aside the attendance notice.
[10]The obvious counter-argument to that contention, however, is that given the Respondent's objection to the notice, it is unlikely that Ms Wells, being an employed solicitor for Crown Law, the legal representatives for the Respondents, would have sworn an affidavit to be relied on by the Applicant. However, given the obvious nature of that that counter-argument, one would have also expected the Applicant to have taken steps earlier in the proceeding to attempt to secure Ms Wells as a witness.
[11]It is incumbent on the parties to ensure that steps are taken in order to ensure that the proceedings accord with the proper case management principles to ensure that the proceedings proceed in an efficient, fair and just way. The Applicant should have taken steps well in advance of the hearing to place the Respondent on notice as to its intention to call Ms Wells and to issue the attendance notice at a much earlier point in time. However, I do not consider that the procedural point raised by the Respondent forms a basis to set aside the notice.
Substance Ground
[12]I will now turn to the second point described by the Respondent as a point of substance. In this regard, the Respondent contends that the attendance notice should be set aside as any evidence to be adduced from Ms Wells is not relevant to the proceedings.
[13]Rule 58(1) of the IR Rules relevantly provides that:
On the request of a party… the commission… may issue an attendance notice to a person.
[14]Rule 61 of the IR Rules provides that:
The… commission… may, by order, set aside part or all of an attendance notice.
[15]Rule 61 of the IR Rules is in similar terms to r 16.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[16]The decision of Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4),[1] had regard to the operation of the federal counterpart rule. Relevantly, at [8] and [9] of that decision, the Court stated:[2]
[1] [2022] FedCFamC2G 743 ('Haley').
[2] Ibid [8] – [9] (emphasis in original) (citations omitted).
8 Parties apply for the issue of a subpoena in the context of adversarial litigation where each party is responsible for adducing evidence to prove facts in relation to which he or she bears the burden of proof, and to contradict or undermine evidence the other party has adduced or may adduce. A subpoena will be issued for a legitimate forensic purpose only to the extent it can be shown that there is a sufficient prospect the subpoena will bring before a court documents or testimony that not only may be relevant to a fact in issue, but may be relevant in a way that may assist the case of the party who applies for the issue of the subpoena, either by providing evidence that may assist the party to prove facts the party has the burden of proving, or that may assist the party to contradict or undermine evidence the other party will or may adduce.
9 What I say in the preceding paragraph is supported by the emphasised portion of the passage from the judgment in Sklavos reproduced above. It is also supported by the judgment of Beazley JA in Attorney General for New South Wales v Chidgey:
It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181:
"… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding."
His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued:
"In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." …
[17]The approach taken by the Court in Haley was to firstly identify the issues in the proceedings. This was done by considering the relevant pleadings. Then, secondly, to identify the evidence that the proposed witness would be in a position to give.
[18]With respect to the pleadings in this matter, the Applicant relied on the second further amended application and, in particular, pointed to adverse action 6, adverse action 7A and adverse action 7, as described in the application.
[19]Adverse action 6 alleges as follows:[3]
[3] Elizabeth Hitchcock, 'Form 3 – Amended application', Application in Hitchcock v State of Queensland (Office of Industrial Relations), GP/2023/31, 8 November 2024, 35.
(k) … on 31 May 2023, the Applicant became aware of that a parallel investigation concerning a complaint submitted by Tam on 23 November 2022 had been commenced.
…
(l) The parallel investigation was actuated by the 17 November 2022 complaint…
[20]This allegation there relates to the Applicant's knowledge of what is described as a parallel investigation being commenced as a result of the complaint of another employee.
[21]Adverse action 7A alleges as follows:[4]
… On 25 August 2023, the Respondent issued a show cause notice to the Applicant…
[4] Ibid 36.
[22]There also included a number of particulars, but the heart of that allegation is that it relates to the issuing of a show cause notice to the Applicant on 25 August 2023 by the Respondent.
[23]Adverse action 7 alleges as follows:[5]
… on 5 October 2023, the applicant was dismissed from her employment with immediate effect;…
[5] Ibid.
[24]Accordingly, that allegation relates to the dismissal by the Respondent of the Applicant from her employment.
[25]However, as is apparent from the written submissions relied on by the Applicant and the thrust of the oral submissions made before me, it is clear that the Applicant seeks to call Ms Wells as a witness in this proceeding in order for her to give evidence with respect to an allegation that is not yet in the pleadings. Further, where the Applicant makes an application to seek leave to amend the pleadings after the commencement of the hearing is dependent upon what evidence Ms Wells would ultimately give.
The Agency Argument
[26]The allegation that the Applicant refers to is premised on a legal presumption that the knowledge of an agent is imputed to the principal. I will call it the "agency argument" for the time being. In this matter, Ms Wells, through Crown Law, was engaged by the Office of Industrial Relations. As best I can make out on the Applicant's submission, it appears to be contended by the Applicant that the agency argument operates in such a way that any knowledge Ms Well gained through her interactions with Ms Cox, another witness in this proceeding, became the actual knowledge of Mr McKay, who is also a witness in this proceeding, and vice versa.
[27]This allegation raises a number of matters which would need to be considered when having regard to the merit of any later application to amend the pleadings. Given the hypothetical nature of the agency argument, I will not address it any further at this point in time.
[28]The Applicant's submissions in this regard highlight what it seeks from Ms Wells being called as a witness. The submissions relevantly state as follows:[6]
[6] Elizabeth Hitchcock, 'Applicant's Submissions: Re: Alex Wells Attendance Notice', Submission in Hitchcock v State of Queensland (Office of Industrial Relations), GP/2023/31, 29 April 2025, [32] (emphasis in original) (citations omitted).
32. … If Ms Wells "comes up to proof" the following findings are potentially open:
(a)Mr McKay had full [actual] knowledge of Ms Cox's unlawful conduct in maintaining and conducting Second IEG Process i.e. the parallel investigation;
(b)Mr McKay's actual knowledge of the parallel investigation:
(i)materially affected his decision as to what penalty he should impose on the applicant…
(ii)demonstrates a lack of knowledge of the provisions of the PSA and directives…;
(iii)has resulted in his decision to terminate being irreparably tainted and not impartial as he is presumed to have had actual knowledge of the 22 events complained of by Ms Tam constituting the Second IEG contained in the attachments to Ms Cox's letter dated 22 February 2023…;
(iv)has occasioned manifest injustice on the applicant by denying her procedural fairness and rendered his decision to terminate her employment unlawful in breach of section 285(1)(a)(ii) of the IR Act.
[29]It is trite to note that the potential findings referred to by the Applicant in the written submissions could only be made if it formed part of her case. Those matters presently do not.
[30]For completeness, I note that the scope of the evidence that is sought to be adduced from Ms Wells is put in very general terms but was incorporated in correspondence to Crown Law on Monday, 28 April 2025, under the hand of the Applicant's solicitors as follows:[7]
[7] Elizabeth Hitchcock, 'Form 20 - Affidavit of Thomas Allan', Affidavit in Hitchcock v State of Queensland (Office of Industrial Relations), GP/2023/31, 29 April 2025, 3.
1. What documents Ms Wells reviewed after being retained on 29 June 2023 by Ms Cox (OIR) for the IEG Tam Grievance dated 23 November 2022? In particular, we seek confirmation whether Ms Well's reviewed:
a.Ms Cox's Letter to ABSA dated 22 February 2023 including the attachments;
b.Ms Cox's Letter to ABSA dated 31 May 2023 including the attachments;
c.ABSA Letter to Ms Cox dated 23 June 2023; and
d.ABSA Letter to Ms Wells dated 10 July 2023.
For the avoidance of doubt, if Ms Wells reviewed additional correspondence under the retainer with Ms Cox, we require Ms Wells to list that correspondence.
2. We seek confirmation of the date that Ms Wells was first retained by OIR in respect of the "main" disciplinary investigation commenced on 20 December 2022 which concluded with the termination of the applicant on 5 October 2023.
3. We seek confirmation of whether Ms Wells was the author of the 8 June 2023 legal advice referred to in the unredacted briefing note PM-06, prepared by Mr Gleeson, on 10 July 2023 and signed by Mr McKay on 11 July 2023.
4. When did Ms Wells retainer with Ms Cox (OIR) for the IEG TAM Grievance that commenced on or about 29 June 2023 come to an end.
[31]These matters on their face do not relate to the allegations contained in adverse actions 6, 7A or 7, nor has the Applicant discharged the onus on her to establish that the proposed evidence of Ms Wells serves a legitimate forensic purpose, as outlined in Haley, for each of those three allegations.
[32]In real terms, the Applicant wishes to call Ms Wells to see if her evidence may assist the Applicant's case, not in its current form but, rather, to determine if it provides a basis for seeking to amend the pleadings after the commencement of the hearing to include the agency argument.
[33]Accordingly, I do not consider that the evidence of Ms Wells to be of assistance to the Applicant's case in this proceeding as pleaded, and, accordingly, it does not serve a legitimate forensic purpose.
[34]Consequently, the application is granted, and I order that the Form 32 – Request for Attendance Notice issued by the Industrial Registry on 17 April 2025 and addressed to Ms Alex Wells be set aside.
Order
1.Pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011 (Qld), the Form 32 – Request for Attendance Notice issued by the Industrial Registry on 17 April 2025 to Ms Alex Wells is set aside.
0
1
0