Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 018 PARTIES: Cronin, John (Applicant) v Department of Agriculture, Fisheries and Forestry (Respondent) CASE NO: TD/2013/34 PROCEEDING: Further preliminary hearing to consider discrete issue resulting from late production of Exhibits in substantive reinstatement application DELIVERED ON: 27 January 2015 HEARING DATE: 12 January 2015 MEMBER: Deputy President Swan ORDERS: 1. The application that Ms Smith be recalled for further questioning by the parties is granted. 2. The Respondent is granted leave to call Mr Sorensen. 3. The matter to proceed on 5 and 6 March 2015. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR - REINSTATEMENT - preliminary application for the calling of a witness by the Respondent due to the late receival of exhibits from the Applicant - the Respondent permitted to call a witness concerning that discrete point - one Respondent witness to be recalled - further relief sought by Applicant through disclosure/discovery dismissed. CASES: Compagnie Fianaciered et Commercialie du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ Patrick Stevedores No 1 Limited Print P8680 APPEARANCES: Mr L. Reidy, Counsel instructed by Creevey Russell -- 1 of 7 -- 2 Lawyers. Mr J. Merrell, Counsel instructed by Crown Law. Further Preliminary Decision [1] On 18 November 2014, a Preliminary Decision was made with regard to an issue which had arisen during the latter stages of the hearing of the substantive matter. The substantive matter relates to an application for reinstatement made by Dr Cronin to his formerly held position with the Department of Agriculture, Fisheries and Forestry. [2] The preliminary issue primarily related to the Respondent seeking leave to file and rely upon an affidavit from Mr Jens Sorensen sworn on 1 August 2014. [3] The Commission granted the Respondent's application regarding Mr Sorensen and also stated: "The requests made by the Applicant concerning further evidence being given by Ms Smith and the production of items identified under paragraph 26 of this decision will be issues for further debate and submission before the Commission upon resumption of the hearing." [4] Upon the matter resuming before the Commission on 12 January 2015, the Applicant made the following submissions:  That the Respondent disclose further documents in its possession and control relating to two key issues: 1. The issue of other departmental officers knowing or suspecting him (i.e. Dr Cronin) as a person who had made a public interest disclosure; and 2. The allegation that Dr Cronin was the source of media leaks. [5] The Respondent submits that it has compiled fully with its disclosure requirements. The Applicant says that the Respondent has failed to explain a non-disclosure of Department files admitted during the course of Ms Smith's evidence. [6] In pursuing its claim, the Applicant relied upon the "Peruvian Guano test"1. The Applicant submits that the test is that: a. Documents "relate to a matter in question" whether or not they are admissible in evidence so long as they are likely to throw a light on the case. b. A document may be relevant by reason of its character or by reason of its content. c. Discovery will not be ordered in respect of an allegation not made in the pleadings or particulars. [The allegation to which the documents relate is the central one that Dr Cronin was dismissed because he made a 1 Compagnie Fianaciered et Commercialie du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ. -- 2 of 7 -- 3 public interest disclosure. In particular they are relevant to the issue of other officers knowing or suspecting Dr Cronin of making a disclosure.] d. Discovery will not be allowed to enable a party to "fish" for witnesses or to frame a new case. [This is inapplicable. A large number of the documents sought undoubtedly exist although it is not necessary for Dr Cronin to establish this]. e. Each case depends on the circumstances but where there are numerous documents of slight relevance and it would be oppressive to produce them all, limitations may be imposed. [The Respondent has not claimed this despite ample opportunity to do so. It has just point blank refused to provide the documents. Dr Cronin's claim is tightly confined by time and document description.] [Note - the commentary in italics is that of the Applicant]. [7] The Applicant said that the documents fell broadly into three categories: (a) Analogue files 4 CMC files dealing with complaints by or about Dr Cronin (subparagraphs 2(a) to (d) of the affidavit of Ms Davies); (b) Documents that concern the same issues as the CMC files and their departmental analogues but which are not physically located on those files (subparagraphs 2(e) to (h) of the affidavit of Ms Davies); (c) Intra-departmental communications among officers about Dr Cronin (subparagraph 2(i) of the Affidavit of Ms Davies) - they either have supervisory roles, were connected with the subject matter of a disclosure or were connected with issues about media leaks. [8] To achieve this the Applicant said that the request for intra-departmental communications is limited by time (April 2013), subject matter (relating to Dr Cronin) and identity of persons involved in the communications. The Applicant then named persons who have a relevant relationship to issues in the proceedings: (i) Ms Keily Smith had a key role in the investigation and the termination of Dr Cronin's employment; (ii) Ms Christine Marshall was identified by Ms Smith as the person who approached her about leaks to the media in December 2013 and was the possible source of Ms Smith's CMC complaint about Dr Cronin as the source of the leaks; (iii) Mr Rowan Lambourne (Manager Operations, Animal Biosecurity and Welfare) was a work supervisor of Dr Cronin and a subject of the Helidon Tick Facility complaint made by Mr Cronin; (iv) Dr Jonathon Lee subjected Dr Cronin to disciplinary action; (v) Mr James Thompson was identified in the Helidon Tick Facility issue and allegations about Dr Cronin leaking information to the media. He was identified by Ms Smith as a possible source of a CMC complaint about Mr Cronin; (vi) Mr McKay decided to terminate Dr Cronin's employment; (vii) Ms Kareena Arthy was a subject of the Helidon Tick Facility complaint; (viii) Mr Graham Brown was identified by Dr Cronin as a person in management involved in preventing the Helidon Tick Facility matter being brought to the attention of the Minister; (ix) Dr Richard Symons was named in the Helidon Tick Facility complaint; -- 3 of 7 -- 4 (x) Ms Allison Crook was named in the Helidon Tick Facility complaint. [9] The Applicant stated that Dr Cronin, relying on the "Peruvian Guano" test, did not have to establish the existence of or the likelihood of existence of the documents sought, but that there was strong evidence that documents were in existence which had not been disclosed. [10] It was submitted that the Respondent held documents that it had not discovered. "The unexplained failure to disclose the email that became 'Exhibit 7' was a powerful reason for making the order." [11] The Respondent's submissions were that:  In its preliminary decision of 18 November 2014, the Commission had permitted the Respondent to call Mr Jens Sorensen [a Records Manager in the Records Section, Strategic and Corporate Services Division of the Crime and Misconduct Commission (CCC)] to give evidence in relation to the Applicant's claim for reinstatement.  The Commission also considered the submissions made by the Applicant in that preliminary hearing where it set out what it required by way of discovery; the re-call of one witness; and the prospect of calling further witnesses should Mr Sorensen be permitted to give evidence.  At the Further Directions Mention of this matter held on 2 December 2014, the following Order was made by the Vice President: "That the issues identified in paragraph 31 of the Preliminary Decision delivered by Deputy President Swan on 18 November 2014, be heard before Deputy President Swan at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane, on 12 January 2015 at Sittings commencing at 10.00 am." [12] The Respondent claimed that the documents now sought to be produced differed from what was sought in the Applicant's material considered by the Commission when determining the Preliminary Decision of 18 November 2014. [13] Detailed by the Respondent were documents in addition to or in substitution of documents which had been identified by the Applicant in the 18 November 2014 preliminary decision. [14] The Respondent rejected the Applicant's request for the Orders as sought. In doing so, the Respondent made five general points: a. That the orders sought by the Applicant were for orders to produce documents rather than for orders for disclosure. The Respondent cited Ross VP (FWA) where His Honour stated: "A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a 'fishing -- 4 of 7 -- 5 expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and the invasion of private rights, with on the other hand, the public interest in the new administration of justice and ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases."2 In the circumstances of what is being sought by the Applicant, the Respondent says that it is not an endeavour to obtain evidence to support the case, but to discover whether there is a case at all. This is so because:  the documents originally sought to be produced were only sought if the Commission granted the Respondent leave to lead evidence of Mr Sorensen, whereas now the basis upon which the Applicant seeks production of the documents is because such production is "essential for the fair conduct of the Applicant's case";  the Applicant has altered the categories of the documents he now seeks to be produced compared to the documents he originally sought to be produced;  the categories now sought are extremely broad; and  the reasons now given by the Applicant for the documents he now seeks to be produced are indicative that he is embarking on a fishing exercise. [Respondent's submissions - point 18]. b. The documents the Applicant originally sought to be produced were only sought if the Commission granted the Respondent leave to lead evidence from Mr Sorensen. The only identified reason for the Applicant to seek the orders it did in the Preliminary Hearing of 18 November 2014 was that if the Respondent was granted leave to call Mr Sorensen, then Dr Cronin would seek to redress the serious prejudice that would have to his case. The Respondent submitted that "the only basis upon which the Applicant put for the production of the documents the Applicant originally sought to be produced was if the Respondent was given leave to lead evidence from Mr Sorensen and no other basis" [Respondent submissions - point 21]. c. The Applicant has altered the documents he now seeks to be produced compared to the documents it originally sought to be produced. The Respondent submits that the alteration is strongly indicative that the Applicant is embarking on a fishing exercise. 2 Patrick Stevedores No 1 Limited Print P8680 -- 5 of 7 -- 6 d. The categories of the documents now sought to be produced are extremely broad. e. The reasons given for the production of documents sought to be produced are indicative that the Applicant is embarking on a fishing expedition. [15] The Respondent says that the only substantive reason given by the Applicant for the production of the documents that are now sought is based on Ms Keily Smith's evidence given during cross-examination. [16] The Respondent says that the Applicant has run its case and been able to rely upon the documents produced by the CCC as part of that case. There has been extensive cross-examination of Ms Smith based on those documents. [17] Towards the end of the trial, after the Applicant's case was finalised, and most of the Respondent's case had been finalised, the Respondent sought to call Mr Sorensen. For reasons set out in the preliminary decision of 18 November 2014 the Commission permitted the Respondent to call Mr Sorensen. [18] That discrete point was the focus of that decision. [19] That factor was highlighted in the Further Directions Order issued by the Commission on 2 December 2014. [20] What is proposed by the Applicant far exceeds what was identified by the Commission as a matter requiring rectification because of the late production of Exhibits 25 and 26. To accede to that request has the potential to significantly alter the progression and finalisation of an application before the Commission around which all evidence has been heard (save for the evidence of Mr Sorensen and the recalling of Ms Smith). Both parties rightly nominated the witnesses they chose to call and that evidence has been heard. The discrete point in consideration relates solely to the late production of Exhibits 25 and 26 and the disadvantage faced by the Respondent as a consequence. I have accepted the Respondent's submissions that it was fair and reasonable for them to call Mr Sorensen and that Ms Keily Smith be recalled for the purpose of further questioning by the parties. [21] Beyond that, I have not accepted the Applicant's claim for the production/discovery of further documents. The Respondent has appropriately complied with the Directions Orders and the only concession given is that Mr Sorensen be permitted to give evidence and in fairness to the Applicant, the Commission has permitted the recalling of Ms Smith as requested by them. [22] The discrete issue arose and will now be dealt with in what should be the final hearing of the matter on 5 and 6 March 2015. [23] Both Ms Smith and Mr Sorensen should present themselves to the Commission at 10 am on 5 March 2015. -- 6 of 7 -- 7 [24] Beyond that all other requests for disclosure/production by the Applicant are refused. [25] I propose to grant the application that Ms Smith be re-called for the purpose of further questioning by the parties. I have considered all of the claims made by the Applicant in this matter and have been unable to accept their submissions for the reasons cited. I have preferred the Respondent's submissions, on this discrete point, for reasons so cited. The remainder of the Applicant's claims are not granted. [26] The matter is to proceed on the following dates of 5 and 6 March 2015. [27] Order accordingly, -- 7 of 7 --