Application by Brenda Atkinson to search and take copies of documents [2001] ICQ 30 (2001) 167 QGIG 182

182 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 June, 2001 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – ss. 248(1)(a) and 339 – application to vary an order of the Queensland Industrial Relations Commission Application by Brenda Atkinson to search and take copies of documents (No. C12 of 2001) PRESIDENT HALL 15 June 2001 DECISION On 28 August 1995 and pursuant to s. 32(2)(b) of the Industrial Relations Act 1990 the Minister for Justice and Attorney-General, Minister for Industrial Relations and Minister for the Arts, directed the Industrial Relations Commission of Queensland to hold an Inquiry (and to report to him the result thereof) into the following industrial matters relating to the cash-in-transit industry: 1. The adequacy of government regulation of occupational health and safety standards in the industry; 2. The adequacy of industrial regulation of the industry in relation to all issues; 3. The adequacy of training and licensing procedures for workers in the industry; 4. Employers’ employment and recruitment procedures; 5. Safety practices and procedures in the industry; 6. The adequacy of equipment used in the industry, including firearms, body protection and armoured vehicles; and 7. The role of all parties (including clients) in enhancing safety in the industry. Very early on in the conduct of the Inquiry it became apparent that unless restrictions were imposed upon access to and publication of the submissions, witness statements and exhibits, and the transcripts of evidence, the Inquiry would become the vehicle by which existing safety arrangements within the cash-in-transit industry were set at nought, and the participants therein exposed to grave and substantial risk. Additionally, legitimate concerns were raised that much of the evidence would properly be regarded as trade secrets within the meaning of s. 99(1)(a) of the Industrial Relations Act 1990, even if the term “trade secrets” was given the narrow meaning attributed to it (in quite different circumstances) in Faccenda Chicken Limited v Fowler [1985] 1 All ER 724. In those circumstances by an order of 20 November 1995 a regime was established by which persons seeking to preserve the confidentiality of material might put their submissions in a timely way and before general distribution of the material. In many cases those submissions were accepted and orders made restraining publication and/or search of material. The orders were not limited as to time. On their face they were express to operate indefinitely. The mischief at which they were aimed, namely the preservation of safety and trade secrets, could not have been reached if the orders ceased to operate upon completion of the Inquiry. In my view as a matter of construction the orders were intended to operate indefinitely. I should add that it is conceded that notwithstanding the repeal of the Industrial Relations Act 1990 by the Workplace Relations Act 1997 and notwithstanding the repeal of the Workplace Relations Act 1997 by the Industrial Relations Act 1999, if as a matter of construction the orders were not time-capped, the transitional provisions in the latter two Acts operate to continue the orders in force. On 22 December 1995 the Applicant, an innocent bystander, suffered severe personal injuries when she was struck in the back by a bullet fired by one of two security guards or one of two bandits during an attempted hold-up of the Westpac Bank at 167 Beaudesert Road, Moorooka (the incident). She has commenced an action in the Supreme Court claiming damages for negligence from Brambles Security Services Limited and Westpac Banking Corporation for the injuries she suffered. The particulars of negligence are set out in paragraph (d) of her Affidavit (which the defendants deny) and include firing revolvers in the direction of the Applicant when it was unsafe to do so, and failing to assess the risk of injury to members of the public if any revolvers were fired. The Applicant, by this Application, applies for approval to search and take copies of evidence relating to training of workers and safety practices and procedures in the cash-in-transit industry (which concluded in December 1996) and evidence relating to the incident presented at the Inquiry. It is asserted that to the extent that the existing orders of the Commission inhibit the process of searching and copying, this Court has the power to make all necessary variations to the orders to enable the process to be undertaken, and, in all the circumstances, should exercise that power. It is contended by each of the Crown in Right in the State of Queensland, Maine Nickless Armaguard, Brambles Australia Limited, and Chubb Security Services Pty Ltd that the Industrial Court of Queensland has no such power. The contention seems to me to be correct. Outside of an appeal under s. 341(1) and an application based on s. 248(1)(e), for what used to be described as prerogative relief, I can think of no section which authorises this Court to molest in any way an order made by the Queensland Industrial Relations Commission. The submission is that the Queensland Industrial Court has inherent jurisdiction over documents in its possession. In my view it is settled that as a statutory tribunal the Industrial Court of Queensland has no inherent jurisdiction, see Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (1999) 161 QGIG 108 and WorkCover Queensland v Trevor Ernest Markwell (No. 2) (2001) 165 QGIG 351. It may be acknowledged that the grant of various statutory powers to a court of statutory creation carries with it, by implication, the power to do that which is incidental to the exercise of the power, see Jackson v Sterling Industries Limited (1987) 162 CLR 612 and NCSC v Bankers Trust Australia Limited (1989) 91 ALR 321. However, the implication of a power to alter orders of the Queensland Industrial Relations Commission is not necessary to give efficacy to the various powers vested in the Industrial Court of Queensland. Section 339 is of no assistance to the applicant. Section 339(1) is a useful and convenient provision. The Industrial Relations (Tribunals) Rules 2000 are not all embracing. Because the tribunals referred to in s. 339(1) have no inherent jurisdiction, it is important that they be empowered to issue directions about procedure and practice to fill lacuna left by the rules in order that an industrial cause or a proposed industrial cause may be further progressed. Here, there is no industrial cause. Neither in the natural meaning of the expression “industrial cause” nor in the inclusive meaning at Schedule 5 to the Industrial Relations Act 1999 may the matter in the Supreme Court be characterised as an industrial cause. In any event, there is a world of difference between the Industrial Commission issuing a direction about practice and procedure to progress an industrial cause of which it is seized or is proposed to be seized, and the Industrial Court of Queensland issuing a direction about practice and procedure in an industrial cause which the Industrial Commission -- 1 of 2 -- 29 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 183 is seized or proposed to be seized. That is particularly so where, as here, an order has already been made by the Queensland Industrial Relations Commission. It would set at nought the carefully drawn limits at s. 341(1) and s. 248(1)(e) if an order formally made after full argument about confidentiality of evidence might be overborne by a direction of the Court. Neither is r. 56(1)(b) of the Industrial Relations (Tribunals) Rules 2000 of any assistance to the applicant. The contrast between “person” at r. 197 and “party” at r. 56(1)(b) is stark. Rule 56(1)(b) confers rights on a party to a proceeding. Whether or not those who participated in the Inquiry pursuant to s. 32(2)(b) of the Industrial Relations Act 1990 may properly be characterised as “parties” may be put aside. The applicant was not one of them. Rule 197 itself is of no assistance to the applicant. Rule 197 is triggered by an application to the Industrial Registrar. No such application has been made. If such an application had been made it would inevitably have failed because of the existing orders of the Commission. Rule 197 may not be avoided by arguing that is a superior court of record the Industrial Court of Queensland may control its own Registry. By s. 295 of the Industrial Relations Act 1999 the Industrial Registry functions both as the Registry of the Court and as the Registry of the Commission. When the Industrial Registry is functioning as the Registry of the Commission, as it is when it holds documents relating to proceedings in the Commission, it is the Commission (if anyone) who has control over the conduct of the Registry. It is put by the applicant that if all else fails the applicant should be given access to submissions, statements and exhibits tendered by participants in the Inquiry who have consented to the applicant having access to search and to copy (albeit in some cases, on undertakings). The only correct answer can be that if the Court hath not power consent will not confer it. The application is dismissed. Dated this fifteenth day of June, 2001. D.R. HALL, President. Released: 15 June 2001 Appearances:– Mr N. Ulrick instructed by Grant White and Associates, Solicitors for the applicant. Mr I. Humphries of Blake Dawson Waldron, Solicitors, for Mayne Nickless Armaguard. Ms K. Marshall of Minter Ellison Lawyers for Brambles Australia Limited and Chubb Security Services Pty Ltd. Mr F. Pulsford for the Crown in Right of the State of Queensland. -- 2 of 2 --