Carey v Department of Justice and Attorney-General [2002] QIRC 19 (2002) 169 QGIG 198

198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 March, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement David Carey AND Department of Justice and Attorney-General (No. B2054 of 2001) COMMISSIONER BLOOMFIELD 22 February 2002 Reinstatement – Dismissal – Termination of Employment – Preliminary issue – Discovery of material by Respondent – Material to be discovered determined by Commission – New hearing date set – Directions Order amended. DECISION ON PRELIMINARY POINTS Background The Commission as presently constituted has been asked to decide a dispute about the extent of discovery of documents by the Respondent on the threshold matter of whether the Applicant is entitled to bring an application for unfair dismissal under the Industrial Relations Act 1999. Ms A. Fitzpatrick, of McCullough Robertson, who appeared for the respondent said the issue to be determined is whether the applicant’s contract of employment expired by the effluxion of time or whether it was terminated by the respondent. She submitted that what was relevant to determination of the preliminary point was the contract itself, the Public Service Act 1996 and what was said to the applicant on 26 October 2001. Matters that occurred prior to that date were not relevant to the issue to be determined. Mr T. Bradley, of Counsel, for the applicant, said that matters were not that simple. Events had occurred outside of the day in question which would assist the Commission in construing what the events of that day actually meant. There was also the issue of what was said to Mr Carey on the day. Further, correspondence sent to the applicant after his termination was also said to be relevant to the issue to be determined. Mr Bradley indicated that the applicant and his advisers were seeking access to all documents which sat behind, or related to, the specific documents he received around the time of the events under discussion. The applicant sought to ascertain whether there was any material inside the Department which might constitute an admission as to the nature of his engagement and/or the reason for his termination. Mr Bradley said the applicant was entitled to the material to establish whether there was a termination at the initiative of the employer, as the applicant argued, or whether the contract came to an end by the effluxion of time, as the respondent argued. In reply, Ms Fitzpatrick said the respondent was anxious to avoid incurring unnecessary costs. The respondent did not deny that certain meetings occurred, and would be happy to make such admission for the purposes of the preliminary point, but did not wish to be drawn into arguments about who said what to whom and what might have been meant. Any detailed consideration of those matters would go well beyond the preliminary point before the Commission. Conclusion In the absence of any material additional to that spelt out above, it is difficult for the Commission to determine – in a sense in a vacuum – whether particular material might be relevant to the point to be determined whilst other material might not. My research on the matter – which involved a consideration of Fisher v Edith Cowan University (1996) 70 IR 206; Dadey v Edith Cowan University (1996) 70 IR 295; the appeal decisions in both cases summarised at (1997) 41 AILR 3-540; Minister for Health v Ferry (1996) 65 IR 374; Pitman v Queensland Department of Health (1997) 155 QGIG 232; Cooper v Darwin Rugby League Inc (1994) 57 IR 238; Andersen v Umbakumba Community Council (1994) 126 ALR 121; Church & Ors v Gold Coast City Council (1996) 40 AILR 3-424; Clarke v Mid North Coast Health Service (2000) 47 AILR 5-241; and Van Hoof v Grancroft Pty Ltd (1999) 162 QGIG 150 – leads me to conclude that the whole matter before me would involve questions of mixed fact and law – in particular, the factual question of whether the circumstances of the case amounted to a termination at the initiative of the employer. Accordingly, at the risk of denying natural justice on the one hand to the applicant, by denying him access to materials, and at the risk of potentially prolonging the case so as to enable issues of fact, as well as issues of law, to be considered, I have decided that it is appropriate for the applicant to be given access to all documentary material in the possession of the respondent which goes to the formation of his various contracts of engagement/employment and, particularly, any documents which go to the issue of why the respondent decided to inform the applicant, on 26 October 2001, that his contract had come to an end. Included in the material to be discovered is any documentation which might relate to the purpose of, or reasons behind, the meetings held with the applicant in the period immediately prior to 26 October 2001. Further, whilst the applicant’s witness statement might go to matters which he thinks is relevant to the issue to be decided by the Commission, I indicate that I will not necessarily consider all such material in determining the preliminary point. Whether a particular document or discussion is relevant to the issue to be determined can only be decided in the fullness of time once all of the parties’ material has been filed. I will hear submissions from the parties on which material referred to in statements should be considered, and which should be excluded, at the commencement of the trial. I shall make any necessary rulings at that time. Having regard to the fact that the matters to be discovered go beyond those which the respondent had initially contemplated (as do the matters which might need to be canvassed in witness statements) I propose to vacate the hearing date of 4 March 2002 and hear the matter, instead, on Tuesday 12 March 2002 at sittings commencing at 10.00 a.m. The timelines identified in paragraphs 2 and 3 of the Further Directions Order dated 20 February 2002 are hereby extended to Monday 4 March 2002 and Friday 8 March 2002, respectively. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 22 February 2002 Appearances:– Mr T. Bradley, of Counsel, instructed by Robinson Hoskin Solicitors, as town agent for Agnew Consulting Pty Limited, for Mr D. Carey the Applicant. Ms A. Fitzpatrick, of McCullough Robertson, with Mr A. Williams, for the Department of Justice and Attorney-General. -- 1 of 1 --