Smith v State of Queensland (Queensland Health) & Anor (No.5)
[2025] QIRC 314
•19 November 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v State of Queensland (Queensland Health) & Anor (No.5) [2025] QIRC 314 |
PARTIES: | Smith, Paul Joseph (Applicant) v State of Queensland (Queensland Health) (First Respondent) and Webb, Robert (Second Respondent) |
CASE NO.: | GP/2022/18 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 19 November 2025 |
HEARING DATES: | 17 September 2025 |
MEMBER: HEARD AT: | Power IC Brisbane |
ORDER: | The orders are contained in paragraph [93] of these reasons for decision. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – – where Applicant seeks to amend his Statement of Facts and Contentions – where Respondents object to leave being granted to amend – leave granted to amend in part. |
LEGISLATION: | Human Rights Act 2019 (Qld), ss 15, 31 Industrial Relations Act 2016 (Qld), ss 282 and 285 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 8 and r 22 |
| CASES: | Aon Risk Services v Australian National University (2009) 239 CLR 175 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278 Byrne v State of Queensland (Queensland Health) [2022] QIRC 013 Chen v Gold Coast Hospital and Health Service (No. 1) [2022] QIRC 422 Crust v Flour & ChocolatePty Ltd& Anor [2024] QIRC 288 Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2025] QIRC 107 Gilbert v Metro North Hospital Health Service [2021] QIRC 255 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 Gunawardena v Boeing Aerostructures Australia Pty Ltd(Strike-out Application) [2024] FCA 1206 Kelsey v Logan City Council & Ors [2022] QCA 238 Myers v State of Queensland (Department of Education) [2021] QIRC 108 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Sabapathy v Jetstar Airways [2021] FCAFC 25 Smith v State of Queensland (Queensland Health) & Anor [2025] ICQ 010 Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 018 Wood v The King & Anor [2022] QSC 216 |
Reasons for Decision
Background
On 20 September 2022, Mr Paul Smith ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act') against the State of Queensland (Queensland Health) and Dr Robert Webb ('the Respondents').
The Applicant's Statement of Facts and Contentions ('SOFC') was filed on 19 April 2023.
The Respondent objected to the imprecise nature of the allegations outlined in the SOFC and after significant disputation provided a draft document titled the Matters in Issue Raised by the Applicant ('the MIRA document') to the Applicant for consideration prior to a conciliation conference.
During the conciliation conference the parties discussed the MIRA document to ensure that it reflected the Applicant's facts and contentions and was precise enough for the Respondents to understand the allegations. At the conclusion of the conference, it was agreed that the Applicant would make the changes agreed upon before filing an amended SOFC.
The Applicant subsequently filed a document that had significant amendments that had not been agreed upon at the conciliation conference which added additional ambiguity to the document. In a decision at a subsequent mention, it was ordered that the MIRA document that had been agreed to at conciliation encapsulate the Applicant's case moving forward.
On 21 September 2023, the Respondents filed an application to strike out parts of the MIRA document relating to the allegations of matters described as 'misrepresentations'.
On 6 February 2024 a decision was issued by Industrial Commission Pidgeon to strike out the parts of the application relating to allegations that various persons had made misrepresentations.[1]
[1] Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 018.
The Applicant appealed the decision of Commissioner Pidgeon and on 24 June 2025, Deputy President Hartigan dismissed the appeal.[2]
[2] Smith v State of Queensland (Queensland Health) & Anor [2025] ICQ 010.
On 30 June 2025, the Applicant filed an application to amend the MIRA document (now referred to as the SOFC) pursuant to rule 18 of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules').
Application and Response
The Applicant's application outlined the following:
a) The Applicant seeks leave to amend the SOFC pursuant to Rule 18 of the IR Rules.
b) The proposed amendment reframes allegations previously described as 'misrepresentations' as 'adverse actions' within the meaning of section 285 of the IR Act. The underlying factual matters remain the same.
The Applicant annexed to the application the proposed amendments to the SOFC document.
On 2 July 2025, the Respondent filed a response objecting to the amendments to the application, save those in respect of paragraphs 52, 53, 60 and 62.
Applicant's submissions
The Applicant made the following submissions in summary:
a) the proposed amendments to the SOFC arises from the rejection of the earlier legal characterisation and not from any change in the factual matrix.
b) the principles in Kelsey v Logan City Council & Ors ('Kelsey') supports the capacity of a party to amend its pleadings to reflect an alternative legal characterisation of the same facts.[3]
c) the issues are well described and have not changed, it is only the legal characterisation of them which is requested to be amended; this is consistent with the role of a SOFC as outlined by his Honour O'Connor VP in Gilbert v Metro North Hospital Health Service ('Gilbert') to 'alert the other party to the case they have to deal with and it defines the issues which exist'.[4]
d) the Commission's task at this stage is not to determine the final merits of the amended claim, but to consider whether there is an arguable basis in law for the new characterisation and whether any procedural unfairness would result if leave to amend is refused.
[3] [2022] QCA 238 ('Kelsey').
[4] [2021] QIRC 255 ('Gilbert') [477].
The Applicant referred to a number of authorities including Byrne v State of Queensland (Queensland Health),[5] and Sabapathy v Jetstar Airways.[6]
[5] [2022] QIRC 013.
[6] [2021] FCAFC 25.
The Applicant claims that the Respondent's alleged conduct in making statements to Workcover which contributed to the rejection of his compensation claim constitutes adverse action 'because it was undertaken by reason of the Applicant's exercise of a workplace right and had the effect of injuring him in his employment, altering his position to his prejudice, or discriminating against him.'
The Applicant also claims that the Respondents conduct when making representations to the QIRC during the hearing of an injunction application were misleading. The Applicant further states:
This caused the balance of convenience to sway to the employer and in doing so caused the applicant prejudice in his employment by altering his position by removing it altogether. The signing of the contract was the same day the Applicant was before a Commissioner for mediation (in good faith) prior to escalation of the complaint. This shows procedural unfairness towards the Applicant who had a right to raise concerns under his EBA and was entitled to a fair hearing. The signing of the contract date was only known after disclosure arguments and was not divulged when directed to make known any material relevant to the adverse action claim. The s 144 hearing was a separate workplace right in addition to the workers compensation claim.
The Applicant submits that the amendment does not introduce new facts or causes of action; rather it seeks to correct the legal characterisation of facts already before the Commission.
The Applicant submits that procedural fairness requires that he be given a meaningful opportunity to present his case, including advancing legal arguments available on the evidence.
Regarding the issue of prejudice, the Applicant made the following submissions in summary:
· Denying the amendment on formal grounds would unduly elevate form over substance and is inconsistent with the principles in Aon Risk Services v Australian National University ('Aon'),[7] and Project Blue Sky Inc v Australian Broadcasting Authority.[8]
[7] (2009) 239 CLR 175 ('Aon').
[8] (1998) 194 CLR 355.
· Denying the amendment would necessitate a further appeal to argue for the right to amend in order to allow a fair hearing of the allegations, citing Yao v Fang.[9]
[9] [2025] QCA 86.
· Prevention of the amendment would deprive the Commission of the opportunity to determine the real substance of the dispute and be contrary to s 451(1) of the IR Act which directs the Commission to act according to equity, good conscience and substantial merits.
· Denying the amendment potentially undermines public confidence in the process of the QIRC in delivering employees and employers a simple, non-technical remedy to correct improper behaviours and breaches the purpose of the Act under s 3.
· Regarding prejudice to the Respondent, any procedural delay has been caused by the Respondents using strike out arguments as a technical tactic against an unrepresented litigant to prevent the actions being scrutinised.
· There is no prejudice to the Respondent other than costs incurred by their clients as a result of tactical manoeuvres by their own lawyers which were used to avoid the claims being argued on their merit. The Applicant had a reasonable right to appeal the strike out and had reasonable argument for doing so.
· The process of the QIRC is undermined when legal adversaries use such tactics in circumstances where they previously have argued that they must abide by Model Litigant behaviours yet have caused delays due to tactical arguments used to fatigue a non-legally represented injured worker.
· The Applicant refers to the statement in Myers v State of Queensland (Department of Education) that "Where a litigant's actions are repeatedly and blatantly inconsistent with progression towards a fair hearing, I consider it must be dismissed for not being desirable in the public interest."[10]
· The Applicant further referred to GlaxoSmithKline Australia Pty Ltd v Colin Makin regarding consideration of what constitutes 'the public interest'.[11]
· The Applicant has suffered prejudice as his case has already been damaged by potentially causing witness testimony to be affected over the time since the matter was first raised.
· The Respondent has not yet been required to file a response to the SOFC and no hearing on the actual merits has occurred. The balance of fairness favours granting leave to amend to ensure that the real controversy is determined in accordance with law.
· To deny an amendment to a SOFC prior to the Respondent being asked to respond would potentially breach s 31 of the Human Rights Act 2019 (Qld) ('the HR Act') regarding a right to a fair hearing.
· Any costs application should be refused. It would be inappropriate and inconsistent with the Commission's protective jurisdiction to penalise a worker for seeking to clarify their legal rights in good faith.
[10] [2021] QIRC 108, [38].
[11] [2010] FWAFB 5343.
Respondent's submissions
The Respondent makes the following submissions, in summary:
· The SOFC was filed on 19 September 2023 following 'a somewhat unusual, but entirely appropriate, process by which the Commission assisted [the Applicant] to frame his case. This process was necessary to crystallise [the Applicant’s] previously evolving and imprecise case.'
· The SOFC included allegations that adverse action had been taken against the Appellant because he exercised a particular workplace right. However, the bulk of the SOFC dealt with allegations that various persons had made misrepresentations that contravened s 289 of the IR Act. Those pleadings were struck out. The Applicant unsuccessfully appealed that strike out decision ('Strike out Appeal').
· The Applicant seeks to reframe alleged 'misrepresentations' which have been struck out as categories of adverse action within the meaning of s 282 of the IR Act.
The Respondent contends the following reasons weigh against the proposed amendments being allowed:
a) The proposed amended allegations have no prospect of success. Section 282 of the IR Act is definitional; s 285 is the operative provision that sets out when adverse action is unlawful. The draft SOFC does not allege that the actions formerly described as 'misrepresentations' contravened s 285. The IR Act does not prohibit adverse action; it prohibits adverse action motivated by the matters referred to in s 285(1).
b) The Applicant has sought to make the amendments nearly three years after he commenced the proceedings, without any cogent explanation for his delay.
c) When the Respondents notified the Applicant his misrepresentation allegations were flawed, he did not then seek to 'correct' his case. He made a strategic decision to press those allegations, even pursuing an unsuccessful appeal.
d) The proposed amendments involve substantially different legal and factual considerations to the case the Applicant has had on foot since 2022.
e) If the amendments are allowed, the Respondents face the significant prejudice of unnecessary further cost and delay. If the amendments are not allowed, the Applicant will be permitted to progress with the matters he has alleged since 2022.
The Respondent refers to the relevant considerations that apply to any application to amend as outlined in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) ('ASMOFQ'),[12] contending that those considerations presuppose that the relevant amendments have some merit. Further, the Respondent contends that to allow an amendment that does not disclose a reasonable cause of action would create unnecessary cost and delay for the parties and the Commission. It would also fail to have regard to the 'substantial merits' of the case in accordance with s 531(3) of the IR Act.
[12] [2021] QIRC 278 ('ASMOFQ').
The Respondent submits that the proposed amendments have no reasonable prospect of success on the following grounds:
· The Applicant has not clearly pleaded the workplace right/s said to have motivated the relevant conduct.
· The matters in s 285 must have been the substantial and operative reasons for the relevant alleged adverse action, which is not the case in this matter.
· A contravention of s 285 will not be made out merely because:
oan employer knew that an employee had or had exercised a workplace right;
othe adverse action affected or impeded an employee's exercise of their workplace right;
othe employer's actions led to some adverse consequence or action; or
othe adverse action had the effect of preventing an employee from exercising a workplace right, rather than that action being taken 'in order to prevent' or 'with a view to preventing' the exercise of a workplace right.
The Respondent's specific submissions regarding the proposed amendments will be addressed below.
Consideration
The Applicant seeks to amend his SOFC to recharacterise the Respondents' impugned conduct, previously pleaded as misrepresentations, as adverse action.
Rule 18 of the IR Rules provides that an applicant may file an amendment to an application.
Rule 22 of the IR Rules provides that a party may file an objection to an amendment application.
The Applicant claims that the amendments are intended to 'cure the legal deficiency identified in the Commission's previous ruling' and that it would be wrong to deny him the opportunity to 'pursue the claim ... due to initial drafting errors now corrected'.[13] I accept the Respondent's submission that this explanation is disingenuous, as if it were indeed a drafting error, the Applicant would have sought to amend his application once the deficiency in the misrepresentation applications was identified. The amendments sought are to change the cause of action originally taken, not to correct a drafting error.
[13] Applicant's Further Submissions in Support of Amendment Application attached to email from Dr Sherlock to QIRC Registry dated 9 July 2025.
I accept that the Applicant made a forensic choice to pursue the allegation as alleged 'unlawful misrepresentations' when the matter was filed on 20 September 2022. The consequence of defending the strike out application to hearing and appeal is that both Dr Webb and Adjunct Professor Hanson have had to endure almost two years of delay without having the opportunity to answer the claims made against them.
It seems to me that the Applicant has misconceived the requirements of an adverse action claim. The Applicant submits that the issues have not changed, however does not allege how the conduct described as 'misrepresentations' can make out an adverse action claim in accordance with the Act. Broadly changing the word 'misrepresentation' for 'adverse action' does not engage with the elements required under the IR Act.
The Applicant outlined at paragraphs [10] – [12] of the SOFC 'the workplace right' in relation to allegations of adverse action by Dr Webb and Adjunct Professor Jackie Hanson. The 'workplace right' in relation to those allegations are outlined as being a formal complaint to the QHRC on 28 May (stated to be 28 April) 2022 made by Dr Sherlock on behalf of herself and her husband 'for all historical discrimination complaints' and a right under the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) (2019) to raise a complaint. The Applicant has referred to these workplace rights regarding the original adverse actions claims against Dr Webb and Adjunct Professor Hanson, but not against Mr Sparrow, Mr Shorten and Mr Batchelder in the context of the proposed amendments.
The Applicant's proposed amendments will be considered in turn.
SOFC [31] – Mr Sparrow
The Applicant's original contention was that Mr Sparrow's evidence to the Commission during the hearing of an injunction application was a 'misrepresentation' pursuant to the IR Act.
Following the decision by Industrial Commissioner Pidgeon to strike out the paragraphs relating to 'misrepresentation', the Applicant seeks to amend the SOFC to replace the material struck out and add the following:
This caused [the Applicant] adverse action by creating an improper valuation of the prejudice to [the Applicant's] request to cease recruitment whilst he was awaiting an investigative outcome to claims he had been threatened for raising safety concerns.
The proposed amendment to add the above paragraph to the SOFC at [31] does not allege a breach of the adverse action provisions of the Act. The amendment does not outline the workplace right engaged and merely states that the conduct of Mr Sparrow resulted in an adverse consequence for the Applicant.
Even if the amendment is construed as contending that adverse action was taken because of the exercise of a workplace right outlined at paragraph [10] to [12] of the SOFC, there is no contention that adverse action has been taken against the Applicant. Simply identifying actions that have caused adverse action does not satisfy the requirements of s 285 of the IR Act.
On the basis that such an amendment does not plead a proper cause of action and cannot be responded to by the Respondents, leave is not granted to amend paragraph [31].
SOFC [32] – [40] Statements by Mr Shorten to WorkCover
The Applicant originally made the following allegations in relation to Mr Shorten:
· Dr Sherlock reported to Metro North Hospital and Health Services ('MNHHS') on 3 September 2021 that the Applicant had suffered a workplace injury.
· Mr Shorten, an employee of MNHHS, had failed to report the injury to WorkCover until 11 November 2021.
· The report by MNHHS to WorkCover was false or made recklessly as to its truth because it wrongly asserted the date the Applicant reported an injury to his employer.
The Applicant proposes to amend this section of the SOFC to claim that Mr Shorten's report caused adverse action by delaying the claim process.
The Applicant has not outlined the workplace right said to have been engaged nor the adverse action taken because of the workplace right.
I note the Respondent's submission that it is unclear how the delayed rejection of a WorkCover claim can be said to fall within the meaning of adverse action at s 282.
The amendment cannot be construed as contending that adverse action was taken because of the exercise of a workplace right outlined at paragraph [10] to [12], as that action relates to a complaint made approximately five months after Mr Shorten's alleged conduct.
It cannot be left for the Respondent, and the Commission, to guess as to the nature of the workplace right said to have unlawfully motivated Mr Shorten's conduct.
On the basis that such an amendment does not plead a proper cause of action and cannot be responded to by the Respondents, leave is not granted to amend paragraph [32] – [40].
SOFC [41] – [42] – Statement by Mr Batchelder to WorkCover
The original allegation was that Mr Batchelder had told WorkCover that MNHHS could not respond to the injury allegation as Dr Thistlethwaite was 'away at the QIRC until the second' and that the Director was going to 'contact legal to see if they could respond', as 'it is about integrity'.
The Applicant alleged that the representation by Mr Batchelder was false or made recklessly as to its truth.
The Applicant seeks to amend this allegation to characterise the statements as causing adverse action by causing his WorkCover claim to be rejected, denying him financial relief for medical expenses.
The proposed amendment does not outline the workplace right alleged to be engaged.
Dr Sherlock's affidavit dated 26 June 2025 at [6] states that the Applicant was subject to adverse action 'after he had applied for a workers compensation claim'. This does not indicate that the workplace right engaged was that of applying for workers compensation, or that adverse action was taken because of an exercise of this right. It is again an assertion that adverse consequences were suffered after an event, not that adverse action was taken because of the exercise of a workplace right.
On the basis that such an amendment does not plead a proper cause of action and cannot be responded to by the Respondents, leave is not granted to amend paragraph [41] – [42].
SOFC [43] – [46] – Statement by Mr Batchelder to Workcover
The Applicant alleged that Mr Batchelder emailed a statement to Ms Jackson that 'the QIRC was looking at the Applicant's WorkCover claim' which he knew to be false.
The Applicant alleged that Mr Batchelder called Ms Jackson and stated the following:
· The Applicant had no evidence to support his claim;
· MNHHS could not provide any response whilst the QIRC investigation was underway;
· MNHHS will not be able to respond while a QIRC investigation was underway; and
· there was no timeframe for completion of the QIRC's investigation.
The Applicant seeks to amend this part of the SOFC to allege that these statements 'caused adverse action' by obstructing the claim progressing and obstructing his right to have a fair assessment of his claim.
This amendment does not engage with s 282 or s 285 and in essence simply pleads that the actions of Mr Batchelder caused adverse action. The proposed amendment does not contend that the actions were adverse action taken because the Applicant had a workplace right or had exercised a workplace right.
The closest that the Applicant comes to identifying a workplace right is in the Affidavit of Dr Sherlock where she states at paragraph [6] that the amendments are sought "on the grounds of procedural fairness as the actions were adverse to him after he had applied for a workers compensation claim which was a workplace right. If he is unable to describe the actions as adverse action, he is denied the right to remedy the serious negative actions after he raised the claim."
At its highest, this statement can be taken as specifying that adverse actions were taken against the Applicant after he exercised his workplace right to apply for workers compensation. Allegations that certain actions that were adverse to the Applicant occurred after the exercise of a workplace right does not engage with the key element of motivation.
On the basis that such an amendment does not plead a proper cause of action and cannot be responded to by the Respondents, leave is not granted to amend paragraphs [43] to [46].
SOFC [48] – [50] – Statement by Dr Webb to the Workers' Compensation Regulator
The Applicant alleges that Dr Webb provided information to the Workers Compensation Regulator that was false and failed to include relevant information. The original contention was that this was a 'misrepresentation' pursuant to the IR Act.
The Applicant's proposed amendment contends that this false information caused him adverse action 'by attempting to reframe him as a difficult employee'.
This amendment does not engage with s 282 or s 285 of the IR Act.
The Applicant does not state the nature of the workplace right involved in the adverse action claim against Dr Webb. The reason that the adverse action was taken is a central element of an adverse action claim, however no reference is made for the motivation for Dr Webb's conduct.
The consideration outlined at paragraph [49] also applies to this proposed amendment.
Further Consideration
The Respondent submits that they will suffer prejudice should the application to amend the SOFC be successful.
The Respondents submit that they are entitled to enjoy the fruit of the strike out and consequently have not sought evidence from Mr Sparrow, Mr Shorten or Mr Batchelder. The Respondents contend that if the allegations are allowed to proceed as amended, the delay can be presumed to have adversely impacted relevant witnesses' memories to the Respondents' prejudice given the reverse onus.
I accept that there is some prejudice to the Respondents if the amendments are accepted on the basis that witnesses will be required to recall their motivations for particular conduct that is alleged to have occurred some three years ago.
I also accept that the Respondents will suffer prejudice on the basis that the hearing will be significantly longer if the amendments are allowed, leading the Respondents to expend additional costs on top of those which they have already incurred through the strike out application and related appeal.
The Applicant submits that the model litigant principles apply such that the Respondents were obliged to conference witnesses relating to the misrepresentation claims at the time the claim was filed. In circumstances where the Respondents have maintained from the outset that this aspect of the claim was misconceived, and this position was upheld at first instance by Pidgeon IC and on appeal by Hartigan DP, I accept the Respondent's submission that it would have been a waste of the state's resources to do so. The model litigant principles require that the State appropriately test all claims and contest all spurious claims. In circumstances where the Respondents correctly formed the view that the allegations relating to 'misrepresentation' were not valid, there was an obligation to contest the claim rather than expend further resources to conference witnesses for a spurious claim.
The prejudice suffered by the Applicant if the amendments are not allowed is the allegations relating to the proposed amendments will not proceed to hearing and determination.
If the proposed amendments outlined facts and contentions that clearly engaged with s 282 and s 285, and to which the Respondent could respond, the prejudice to the Applicant would weigh heavily in favour of my granting the application. However, where the proposed amendments do not engage with the elements of an adverse action claim, the amended claims have very limited prospects of success. In those circumstances, the prejudice to the Applicant of not allowing the amendment is minimal in that it simply limits further efforts being expended on a futile claim.
The Applicant contends that a decision to deny the proposed amendment would amount to a breach of his human rights under s 15 and s 31 of the HR Act.
As determined in Wood v The King & Anor,[14] the HR Act does not create free-standing rights. Further, the Commission is not subject to s 58 of the HR Act when exercising judicial power.
[14] [2022] QSC 216, [71].
Notwithstanding the above, I do not consider that a decision to deny the proposed amendment contravenes the HR Act's provisions regarding recognition and equality before the law or the right to a fair hearing.
The Parties referred the Commission to a number of authorities that will be considered briefly in turn below.
The Applicant referred to Aon as authority for the proposition that an amendment should be permitted where the facts were already known at the beginning of the case and were not new to the parties.[15] I note that in this matter costs were ordered to compensate for the late amendment. Whilst the broad factual basis for the amended claims are known to the parties in this matter, there are material facts that have not been pleaded relating to the motivation of particular persons.
[15] Aon (n 7).
The Applicant referred to Kelsey as authority for the proposition that the primary decision maker is required to assess prospects with regard to the whole of the evidence, and that the strike-out decision prevented the evidence in this matter being brought forward. The Court of Appeal determined in Kelsey that the whole of the evidence must be considered, however this was in the context of an appeal. In circumstances where evidence has not yet been led regarding the facts in this matter, the decision in Kelsey can be distinguished.
The Applicant referred to Crust v Flour & ChocolatePty Ltd& Anor in a submission stating that leave had been given to amend an applicant's claim in a matter Dr Sherlock described as 'far less meritorious'.[16] In this decision, the Applicant's representative had incorrectly referred to Commonwealth legislation rather than the equivalent Queensland legislation. Industrial Commission Dwyer determined that this was not a case where the cause of action was fundamentally misconceived and allowed the amendment. Those circumstances can be distinguished from this matter in that the application could be corrected by a simple amendment which did not fundamentally alter the legal cause of action. Changing a SOFC from pleading misrepresentation to adverse action is more significant and involves engagement with entirely separate legal principles.
[16] [2024] QIRC 288.
The Applicant referred to Chen v Gold Coast Hospital and Health Service (No. 1) as authority for allowing amendments where there is a strong, arguable case.[17] The difficulty for the Applicant is that it is impossible to make an assessment as to whether there is a strong, arguable case when the provisions of Act relating to adverse action have not been engaged with in the proposed amendments.
[17] [2022] QIRC 422.
The Respondent referred to Gunawardena v Boeing Aerostructures Australia Pty Ltd(Strike-out Application) and the following comments of Justice Wheelahan:[18]
… I am mindful of the fact that the applicant, being self-represented, should be afforded a reasonable opportunity to put her case and should not be placed at a disadvantage in terms of the Court's practice and procedure because she is self-represented. This case is obviously very important to the applicant, and she has put effort into articulating her claims. However, the Court's duty is to ensure a fair trial for all parties … And as with all proceedings, the management of this proceeding involves giving attention to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).
(citations omitted)
[18] [2024] FCA 1206, [5].
It is similarly clear in this matter that the case is very important to the Applicant and significant effort has been put into pursuing this claim. I respectfully adopt the comments of Justice Wheelahan that there is also a duty to ensure fair trial for all parties. Rule 6 of the IR Rules provides that the purpose of the IR Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense. Allowing the amendment simply because it is important to the Applicant would not be consistent with r 6 given the likely futility of the amended claims.
The Applicant submitted that it is in the public interest to not 'be outmanoeuvred by clever tactical manoeuvres' to prevent the matter being 'dealt with properly'. It is clear that the Applicant views the strike out decision and subsequent appeal decision as 'legal technicalities' rather than the result of a misconceived claim. Unfortunately, the same view appears to have been taken about the proposed amendments.
It is not a 'legal technicality' to require that facts be pleaded in such a way that allows the Respondent to know the case it must meet and for the Commission to understand the matters to be determined.
It is not in the public interest for a valid claim to not be heard, however neither is it in the public interest for the resources of the parties and the Commission to be used on claims that are unlikely to succeed due to the failure of a party to properly plead their case.
The Applicant's submission that the proposed amendments are merely a re-characterisation of the same factual case cannot be accepted. The contention that the factual elements are 'not new' does not address the fault element in s 285. The Respondent cannot reasonably meet the case proposed where the amendments do not engage with the relevant elements of an adverse action claim.[19]
[19] Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2025] QIRC 107, [61].
In circumstances where there the proposed claim involves civil penalty provisions and uncapped damages, it is incumbent upon the Applicant to specify how the alleged facts meet the elements of adverse action.
I acknowledge that the Applicant is not legally represented, however the Applicant or his representative Dr Sherlock are clearly capable of drafting an allegation regarding adverse action with reference to s 282 and s 285. The paragraphs in the SOFC containing allegations against Dr Webb and Adjunct Professor Hanson outline clear allegations relating to the adverse action provisions which can be answered by the Respondent and ultimately determined by the Commission. The proposed amendments are not drafted in similar terms for reasons unknown. The decision by the Applicant not to engage with the statutory provisions in the proposed amendments indicates that such claims are likely to be ultimately futile.
In considering matters relevant to an application to amend, I note that the object of the IR Act is to do justice between parties according to law.[20] In my view, allowing amendments to proceed in circumstances where it has such limited prospects of success would not do justice between the parties.
[20] ASMOFQ (n 12) [25].
Although the litigation has not yet reached the point of hearing, it is a relevant consideration that the matter has been on foot for some three years during which several interlocutory decisions have been made along with an appeal decision.
Settling the SOFC in this matter has been a lengthy and protracted process. The Applicant was put on notice at a mention in 2023 that this matter could not be allowed to evolve. I particularly note the consideration of the purpose of an SOFC (or SFC) by Vice President O'Connor in Gilbert:[21]
[21] Gilbert (n 4) [477] – [480].
[477] It must be accepted that where the Commission orders the filing of SFCs they serve to alert the other party to the case it will have to deal with and it identifies the issues which exist and, in turn, allows for a confinement of the matters in dispute. Subject always to the Commission's power to allow appropriate amendments, a party will be bound by its SFCs and may not lead evidence or make submissions which are not relevant to the identified issues.
[478] Whilst it is to be appreciated that in the Commission a SFC is not attended with the same level of formality as pleadings are, in the traditional sense. In this matter, the Commission has, consistent with the provisions of s 531 of the IR Act, required the parties to provide an outline of their respective cases.
[479] As was observed by Martin J in Carlton v Blackwood (Carlton):
An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.
[480]It is consistent with the requirements of s 531 of the IR Act for a party in a proceeding under the IR Act to set out its case by way of a SFC. As was expressed by Martin J in Carlton, the SFC serves to alert the other party to the case it will have to deal with and identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. It serves also to assist the Commission in knowing the nature and extent of the matter it is being called upon to adjudicate.
(citations omitted)
Notwithstanding the requirements that a case not be permitted to 'evolve', I accept that circumstances may exist where the justice of the matter requires that an amendment be permitted. In this matter however, the factor upon which I have placed most weight on rejecting the application is the Applicant's failure to properly outline facts and contentions that engage with s 282 and s 285 of the IR Act. Such a limitation was fatal to this application.
Other proposed amendments to the SOFC
The proposed amendments to paragraphs 52 and 53 relate to the allegations of unlawful adverse action against Dr Webb and Adjunct Professor Hanson.
In circumstances, where the Applicant has engaged with the elements of adverse action in relation to these allegations, the proposed amendments to paragraphs 52 and 53 simply provide further particulars and are accepted.
The proposed amendment to paragraphs 60 and 62 relates to consideration by the Commission as to any appropriate compensation. This is uncontroversial and is accepted.
Orders
I make the following orders:
1. The application to amend the SOFC is allowed in part only.
2. The Applicant is directed to file and serve a SOFC by 4pm 3 December 2025 reflecting the document attached to the application without the proposed amendments and excising the paragraphs that were struck out by the order of Pidgeon IC dated 6 February 2024, with the exception of the following:
a.Paragraphs 52 and 53 to include proposed amendments;
b.Paragraphs 60 and 62 to include proposed amendments.
3. The application to amend other paragraphs is dismissed.
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