Arbuckle v State of Queensland (Department of Trade, Employment and Training) & Ors [2026] QIRC 199

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Arbuckle v State of Queensland (Department of Trade, Employment and Training) & Ors [2026] QIRC 199 PARTIES: Arbuckle, Paige (Complainant) v State of Queensland (Department of Trade, Employment and Training) (First Respondent) And McGill, Stephen (Second Respondent) CASE NO.: AD/2025/54 PROCEEDING: Application in existing proceedings DELIVERED ON: 16 June 2026 MEMBER: HEARD AT: Power IC On the papers ORDERS: 1. Leave is granted for the Complainant to file the Amended Statement of Facts and Contentions excluding the following paragraphs: a. 31, 32, 33, 55, 56, 57, 58, 59, 77, 78, 92, 93, 125 2. Costs to be considered following hearing of the substantive matter. -- 1 of 9 -- 2 CATCHWORDS: PROCEDURE – INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL PROCEDURES – Complainant's statement of facts and contentions contains complaints that were made to the Queensland Human Rights Commission more than one year after the alleged contraventions of the Anti-Discrimination Act 1991 – whether to exercise discretion pursuant to s 175(2) of the Anti-Discrimination Act 1991 to deal with those complaints – on the balance of fairness between the parties, it is reasonable to deal with those complaints HUMAN RIGHTS – JURISDICTION AND PROCEDURE – APPLICATION TO AMEND COMPLAINT – Complainant filed an application to amend her statement of facts and contentions – application opposed by the Respondent – consideration of whether the Complainant should be allowed to amend her complaint – application allowed in part LEGISLATION: Anti-Discrimination Act 1991, s 175, s 178 CASES: Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2) [2011] QSC 42 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 Wong v Medical Board of Queensland & Ors [2006] QADT 41 APPEARANCES: Mr D Mahendra of Counsel, instructed by Maurice Blackburn for the Complainant. Ms E Cooper of Counsel, instructed by Ashurst for the First Respondent. -- 2 of 9 -- 3 Ms J Marr of Counsel, instructed by Hopgood Ganim for the Second Respondent. Reasons for decision [1] On 26 February 2025, Ms Paige Arbuckle ('the Complainant') lodged a complaint with the Queensland Human Rights Commission ('QHRC') alleging that Mr McGill had engaged in conduct that contravened the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). [2] The QHRC accepted the complaint and referred the matter to the Queensland Industrial Relations Commission ('the QIRC') on 18 November 2025. [3] In accordance with Directions issued by the QIRC on 25 November 2025, the Complainant filed a Statement of Facts and Contentions ('SOFC') on 23 December 2025. [4] A conciliation conference was held on 5 March 2026, however the matter did not resolve. [5] On 30 March 2026, the Complainant filed an Application in Existing Proceedings seeking leave to file an Amended Statement of Facts and Contentions ('ASOFC'). [6] The proposed amendments contain allegations of conduct alleged to contravene the AD Act not included in the original SOFC, including allegations of conduct occurring more than one year prior to the claim being lodged ('the out of time allegations'). [7] The Respondent opposes the proposed amendment to include the out of time allegations and the inclusion of additional allegations, however, does not oppose amendments that clarify, particularise or supplement matters already pleaded. The Respondents oppose the amendments to paragraphs 13–33, 48–67, 77-78, 92-93 and 125. Legislative framework [8] Pursuant to s 178 of the AD Act, the Commission has discretion to allow the Complainant to amend her complaint as sought. 178 Complaints may be amended (1) The tribunal may allow a complainant to amend a complaint. (2) Subsection (1) applies even if the amendment concerns matters not included in the complaint. -- 3 of 9 -- 4 [9] Section 175 of the AD Act provides: 175 Time limit on referred complaints (1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act. (2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. [10] The matters that are generally considered in the application of s 175(2) of the AD Act are the following:1 • The length of the delay; • Any explanation by the complainant for the delay; • Any prejudice to the respondent, should the discretion be exercised in the complainant's favour; • Any prejudice to the complainant, should the discretion not be exercised in the complainant's favour; and • Whether there is a lack of merit to the complaint. Consideration [11] The question for determination is whether my discretion should be exercised to allow the Complainant to amend her complaint to include additional claims including out of time claims. [12] Principles to be considered where amendments are sought, as outlined by Deputy President Merrell in 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) ('Fellows') include the following:2 • the discretion is guided by the purpose of the Rules, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense; 1 Wong v Medical Board of Queensland & Ors [2006] QADT 41, [21]-[22]. 2 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 ('Fellows'), [42] referring to Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors (No 2) [2011] QSC 42 ('Sun City'), Applegarth J at [25]-[26]. -- 4 of 9 -- 5 • there is a distinction between amendments which are necessary for the just and expeditious resolution of the real issues in the proceedings and amendments which raise new claims and new issues; • the Commission should not be seen to accede to applications made without adequate explanation or justification; • the existence of an explanation for the amendment is relevant to the Commission's discretion, and invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment; • the objective of the Commission is to do justice according to law and, subject to the need to sanction a party for breach of its undertaking to the Commission and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment; • justice requires consideration of the prejudice caused to other parties, other litigants and the Commission; and • the point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources. [13] The Complainant's proposed amendments that are alleged to have occurred within the one-year time period but which further expand the Complainant's case are outlined as follows: • 2024 Office Kitchen Incident;3 • Interaction with Kelly Hammond;4 • Interaction with Kay Butcher;5 • Interaction with Cindy Perry;6 and • Interaction with Amy Turnbull.7 [14] The Complainant submits that the 2024 Office Kitchen incident was referred to in the First Respondent's investigation and it was one of the allegations contained in the investigations’ terms of reference. 3 Exhibit PT-1 to 'Form 20 – Affidavit' filed on 30 March 2026, ('The Complainant's Amended Statement of Facts and Contentions'), paragraphs 60 to 67. 4 Ibid, paragraphs 55 to 56. 5 Ibid, paragraphs 57 to 59 and 125. 6 Ibid, paragraphs 77 to 78. 7 Ibid, paragraphs 92 to 93. -- 5 of 9 -- 6 [15] In reference to consideration of the stage at which the litigation has reached, the Respondent refers to the following passage in Fellows:8 [144] In the present case, if the new claims were made by the Complainant soon after the complaint was referred to this Commission, or indeed soon after she filed her statement of facts and contentions, those facts may have supported allowing the Complainant's new claims. Those are not the present facts. The hearing and determination of the Complainant's complaint in this Commission had reached the point where statements of facts and contentions had been filed and served, discovery had been completed, affidavit material filed, the process of filing and serving outlines of argument was underway and trial dates had been set. [16] The current matter is at a much earlier point in the litigation than was the case in Fellows, as outlined above. In this matter, affidavit material, outlines of evidence and outlines of argument have not been filed and dates for hearing have not been set. [17] I consider that this matter is at an early stage of the litigation process, with this factor weighing in favour of allowing the proposed amendments. [18] I also consider that allowing the Complainant to amend her SOFC to include this additional claim would have limited prejudice to the Respondents given that it has already been the subject of the First Respondent's investigation. [19] The incident does not expand the claim, rather it is an allegation of another incident forming an alleged pattern of conduct against the Complainant and is alleged to have occurred within the statutory time period. [20] It is in the interests of justice and in my view reasonable to allow the Complainant to amend the SOFC to include the 2024 Office Kitchen Incident.9 [21] The interactions with Kelly Hammond, Kay Butcher, Cindy Perry and Amy Turnbull ('third parties') expand the claim significantly further than that which was originally commenced. The expansion of the matter to include these claims would be unreasonably prejudicial to the Respondents in circumstances where they will be required to respond to allegations involving non-complainants. [22] I note the submission that s 146 of the AD Act provides for representative complaints, however this matter has not been filed as a representative complaint. 8 Fellows (n 2), [144]. 9 The Complainant's Amended Statement of Facts and Contentions (n 3), paragraphs 60 to 67. -- 6 of 9 -- 7 [23] I accept the submission that the introduction of allegations involving other individuals fundamentally changes the character of the case that the Respondents are required to meet. These additional allegations in relation to third parties do not particularise the impugned conduct toward the Complainant, but rather outline alleged contraventions of the AD Act by the Second Respondent towards others. [24] I do not consider it to be in the interest of justice, nor reasonable to allow the SOFC to be amended to include the interactions with third parties. Accordingly, leave is not granted to include the proposed amendments in the ASOFC at paragraphs 55-56; 57-59; 77-78; and 92-93 and 125. [25] The proposed amendments that are alleged to have occurred both within and outside the statutory time period will be considered below. Out of time allegations [26] In accordance with s 175(2) of the AD Act, I must consider whether it is reasonable, on the balance of fairness between the parties, for the Commission to deal with the out of time allegations. [27] The Complainant filed her complaint with the QHRC on 26 February 2025. Allegations which pre-date 26 February 2024 are therefore beyond the 1-year statutory time limit and are considered out of time. [28] The out of time allegations outlined in the ASOFC and objected to by the Respondent are as follows: a) Unwanted physical contact involving unsolicited hugs during the period on or around 2020 to February 2025;10 b) 'Bear hugs' from on or around June 2021;11 c) Unwanted physical contact involving a 'peck' and shoulder massage during the period on or around 2022;12 d) Unwanted comments between on or around 2022 and February 2025;13 e) Interaction with Brigid Hackett;14 and 10 The Complainant's Amended Statement of Facts and Contentions (n 3), paragraphs 13 to 16. 11 Ibid, paragraphs 17 to 21. 12 Ibid, paragraphs 22 to 26. 13 Ibid, paragraphs 27 to 30. 14 Ibid, paragraphs 31 to 32. -- 7 of 9 -- 8 f) Interaction with Melissa Fox.15 [29] For the same reasons outlined in paragraphs [22] to [24], leave is not granted to amend the SOFC to include allegations from third parties unrelated to the allegations of the Second Respondent's conduct toward the Complainant. Accordingly, leave is not granted to amend the SOFC to include the interactions with Brigid Hackett and Melissa Fox. Length of the delay [30] The length of the delay is up to four years, which is significant. However, the conduct forms part of an allegation of behaviour leading up to the time at which the complaint was filed. Explanation for the delay [31] The explanation for the delay appears to be that the Complainant changed legal representatives and that further information was obtained through the discovery process. [32] I accept that the Complainant obtained different legal representation since the filing of the SOFC and that the factual case has become more complete as a consequence of this change and the discovery process. In my view, this is a satisfactory explanation for the delay. Prejudice to the Respondent [33] Consideration must be had to prejudice to the Respondent if the discretion is exercised in the Complainant's favour. [34] In circumstances where it appears that many of the allegations have been known to the Respondents when they were raised as part of the workplace investigation, it cannot be argued that the Respondents are unaware of the existence of these matters. [35] It appears that through the external investigation, witnesses have already been interviewed as part of the investigation of these allegations. The Respondents have therefore been on notice of the allegations for a significant period of time. [36] I do not accept the submission that the proposed amendments are impermissibly vague. The Second Respondent will undoubtedly know if the allegations that he engaged in particular conduct over the period of time are accurate or not. The lack of detail regarding specific dates does not in my view impede the ability for the Respondents to respond to the allegations. 15 The Complainant's Amended Statement of Facts and Contentions (n 3), paragraph 33. -- 8 of 9 -- 9 [37] Whilst I acknowledge that any amendment to a SOFC will bring with it some inconvenience to the Respondents, I am not persuaded that any real prejudice will be suffered should the amendments proceed. Prejudice to the Complainant [38] Consideration must be had to prejudice to the Complainant if the discretion is not exercised in the Complainant's favour. [39] The prejudice that will be suffered by the Complainant if leave is not granted is that a substantial number of allegations relevant to an alleged course of conduct will not be tested at hearing. Merit [40] There is no affidavit evidence before the Commission at this stage of proceedings, however the allegations if proven may constitute a contravention of the AD Act. [41] I consider the issue of merit to be a neutral consideration in determining whether to grant leave. Conclusion [42] Acknowledging the beneficial nature of the legislation, and in balancing of fairness between the parties, it is fair and reasonable to allow the proposed amendment to the SOFC to include the 2024 Office Kitchen Incident and the allegations outlined in paragraph [28] (a) to (d) of this decision pursuant to s 178 of the AD Act. [43] In addition, considering the balance of fairness between the parties, it is in my view reasonable to extend time pursuant to s 175(2) of the AD Act to allow the Commission to deal with the out of time allegations contained in the ASOFC, with the exception of alleged interactions involving third parties. Orders [44] I order accordingly. 1. Leave is granted for the Complainant to file the Amended Statement of Facts and Contentions excluding the following paragraphs: a. 31, 32, 33, 55, 56, 57, 58, 59, 77, 78, 92, 93, 125 2. Costs to be considered following hearing of the substantive matter. -- 9 of 9 --