Case v State of Queensland (Department of Justice and Corrective Services) [2016] QIRC 90

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bevan Case v State of Queensland (Department of Justice and Corrective Services) [2016] QIRC 090 PARTIES: Bevan Case (Applicant) v State of Queensland (Department of Justice and Corrective Services) (Respondent) CASE NO: D/2016/53 PROCEEDING: Industrial Dispute DELIVERED ON: 24 August 2016 HEARING DATES: 23 August 2016 HEARD AT: Brisbane MEMBER: Commissioner Knight ORDERS 1. Application for Orders for Disclosure dismissed. 2. The Application for Orders for a Joint Expert Report dismissed. 3. The parties are directed to confer, on the benefits or otherwise, of a process of concurrent expert evidence being provided in regard to the assessment of Mr Case, with a view to notifying the Commission by 12 noon, 26 August 2016 as to whether further directions are required in respect of such a process. CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR DISCLOSURE – disclosure and inspection of documents – whether the disclosure order sought in relation to the disputed documents is to be made or not – where respondent argues appellant is on fishing expedition – where respondent opposes disclosure of documents in that the evidence sought is not relevant to the case at hand – where applicant is seeking order for a joint -- 1 of 5 -- 2 expert report – where respondent submits Commission does not have the power to direct the parties to submit a joint expert report. CASES: Industrial Relations (Tribunals) Rules 2011, rr 41(2)(o), 46 Industrial Relations Act 1999 ss 273, 274 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075 APPEARANCES: K. Birch, instructed by Hall Payne Lawyers for the Applicant J. Merrell, Counsel for the Respondent instructed by Crown Law Decision [1] This matter involves Mr Bevan Case, an employee of Queensland Corrective Services who, after 19 years as a dog handler, failed a dog handling assessment in June 2016. A determination was subsequently made by Mr Case’s employer to remove him from his position as a dog handler with a view to returning him to duty in a Custodial Correctional Officer role with Wolston Correctional Centre. [2] Following this decision, a notice of dispute was subsequently filed by the Applicant in the Queensland Industrial Relations Commission. In that notification, Mr Case disputed the assessment, along with a subsequent decision by Ms Bambrick, General Manager of Wolston Correctional Centre to remove Mr Case from his position as a dog handler and place him in the role of a Custodial Corrections Officer. [3] A conciliation conference was convened by the Commission on 27 July 2016 with the objective of resolving the dispute. This process was unsuccessful and the matter was referred for arbitration. [4] A Directions Order in respect of the conduct of the arbitration proceedings was issued by the Commission on 11 August. On 22 August 2016, Mr Case’s representatives wrote to the Commission advising the parties had not been able to reach agreement in respect of the disclosure of certain materials. [5] Essentially, the area of disagreement relates to materials pertaining to a Correctional Services Dog ('CSD'), "Victor", who Mr Case worked with immediately prior to the decision by his employer to remove him from his dog handling role. In the proceedings before the Commission, the Applicant sought disclosure of the following materials:  All details related to the change of CSD Victor’s location and the reasons for that change;  The paper trail related to the disposal of CSD Victor to South Australia Corrective Services; and -- 2 of 5 -- 3  Documentation related to the price that CSD Victor was sold for. [6] Mr Case’s representative also sought an order from the Commission directing the parties to utilise a joint expert, in respect of dog handling practices and Mr Case’s assessment, for the purposes of the arbitration. Relevant authorities and legislation [7] The Industrial Relations (Tribunals) Rules 2011 and in particular r 41(2)(o) and r 46(1)(a), provide for the following: "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 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." [8] In Weston and Parer v State of Queensland (Department of Justice and Attorney- General), Commissioner Fisher relied on a number of principles relating to disclosure which are also helpful in determining this matter, including:  "A decision of the Commission to order disclosure is a quintessential exercise of discretion;  To be discoverable a document must relate to the question or issues to be decided by the proceedings;  A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary; or it is a document which may fairly lead to a train of enquiry which may have either of those consequences; -- 3 of 5 -- 4  A party will not be required to produce documents where to do so would be oppressive;  A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavor not to obtain evidence to support a case but to discover whether there is a case at all;  Orders for disclosure should not be made for the purpose of enabling a party to attack credibility."1 What is the question or issues to be determined in the arbitration proceedings? [9] In accordance with Order 1 of the Directions Order of 11 August 2016, the parties to the proceedings have agreed the question to be determined in this matter is: "Should the applicant be reordered to the Dog Squad and, if so, under what conditions?" [10] Two further questions canvassed by Mr Case in the lead up to and during the conciliation proceedings finalising the issues to be address in the arbitration included:  Were there any alternative performance management actions that could have been taken by the Respondent in the circumstances?  In all the circumstances, was it harsh to stand the Applicant down? [11] The Respondent’s representative, Mr Merrell, objected to the disclosure of the documents sought by Mr Case on the following grounds:  The documents sought are irrelevant to the issues to be determined;  The request for the documents fall into the category of a fishing expedition for materials in support of a case that has not previously been canvassed by the Appellant. [12] In support of these concerns, Mr Merrell pointed to elements of the original dispute notification filed with the Commission by the Appellant. In particular, Mr Merrell highlighted Mr Case's comments in his original show cause response to his employer where he noted, in respect of the Corrective Services Dog "Victor", "…although he is not a world beater, I believe he is sufficient to be able to do the job (although some issues are evident) and which may never be overcome, but I do believe he may progress to the standard required as a Corrective Services Dog with time and as he matures…" [13] The Respondent argues Mr Case had previously not relied on "Victor's" performance in support of his claims the assessment undertaken by Mr Swann was erroneous or inadequate. 1 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075, 3 -- 4 of 5 -- 5 [14] Although Mr Case had previously included a comment in his show cause response noting "Dogs…do regress from time to time", I accept the submissions of the Respondent that the principal issue Mr Case and his representatives have consistently pursued in respect of the dispute has been in relation to the adequacy of the assessment undertaken by Mr Swann and the appropriateness of the decision to remove him from his role, rather than the performance of "Victor" and his contribution (or otherwise) to the assessment outcome. [15] As such, the Application seeking an Order from the Commission for disclosure in respect of the documents set out in [4] above is dismissed. [16] Mr Case’s representative has also made submissions seeking an Order from the Commission in respect of obtaining a joint expert report to assist the proceedings. In support of this application, Ms Birch relies on the Commission’s powers at s 274 and s 273 of the Industrial Relations Act and has highlighted the potential cost benefits associated with a joint expert being appointed. [17] The Respondent submits the Commission lacks the power to direct the parties to agree to a joint expert. [18] Whilst I don't necessarily accept Mr Merrell’s submission on this issue, I am also not confident the appointment of a joint expert in this matter is appropriate given the circumstances of the case. [19] I also note Ms Birch's confirmation the Applicant has made contact with a highly skilled assessor, albeit from another department, who has indicated a preparedness to provide an expert opinion in respect of the assessment undertaken by Mr Swann. [20] Accordingly, the application for orders from the Commission directing the parties to obtain a joint expert report is dismissed. [21] That aside, having reviewed the materials attached to the dispute notification, I accept the profession of dog team handling, training and assessment is a highly specialised area. With a view to saving costs and time, by narrowing the issues which are in dispute in relation to the manner in which Mr Case was assessed, it may be more efficient for the Commission to facilitate a process of concurrent expert evidence. Orders [22] The Application for disclosure in respect of the materials set out in [4] above is dismissed. [23] The Application for orders in respect of a joint expert report is dismissed. [24] The parties are directed to confer, on the benefits or otherwise, of a process of concurrent expert evidence being provided in regard to the assessment of Mr Case, with a view to notifying the Commission by 12 noon, 26 August 2016 as to whether further directions are required in respect of such a process. -- 5 of 5 --