Winn v State of Queensland & Ors [2026] QCAT 385

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Winn v State of Queensland and ors [2026] QCAT 385 PARTIES: JULENE WINN (applicant) v STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE) (first respondent) MEGAN MAHON (Second Respondent) MICHAEL ROESSLER (Third Respondent) KELLIE GRAINGER (Fourth Respondent) MICHELLE RASH (Fifth Respondent) APPLICATION NO/S: ADL016-25 MATTER TYPE: DELIVERED ON: Anti-discrimination matters 24 August 2026 HEARING DATES: 21 August 2026 HEARD AT: Brisbane DECISION OF: Member Roney KC ORDER/S: The complaints against the Second to Fifth Respondents are dismissed. The Second to Fifth Respondents are removed as parties to the proceeding. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. CATCHWORDS: HUMAN RIGHTS – ANTI-DISCRIMINATION – DIRECT AND INDIRECT IMPAIRMENT/ DISABILITY DISCRIMINATION – where x Practice and -- 1 of 8 -- 2 procedure – application for summary determination of claims PROCEDURE - PARTIES - PROPER OR NECESSARY PARTY –- complainant barrister being investigated by the Legal Services Commissioner alleged contraventions of the Anti-Dis crimination Act 1991(Qld) (AD Act') – respondents brought an application in existing proceedings seeking an order striking out the claims against the Legal Services Commissioner and individual public servant respondents – consideration of s269 of the Public Sector Act 2022 ('PS Act 2022'), - held that s269 of the PS Act 2008 meant second, third and fourth Respondent could not incur civil liability for engaging in, or for the result of engaging in, conduct that allegedly breached the AD Act and the Human Rights Act 2019 (Qld) Anti-Discrimination Act 1991 (Qld) Human Rights Act 2019 (Qld) Legal Profession Act 2007 (Qld) Public Sector Act 2022 (Qld) Public Sector Regulation 2023 Reg 16 Queensland Civil and Administrative Tribunal Act 2009 s 42 s 47 Fletcher v State of Queensland (Queensland Police Service) & Ors [2025] QIRC 234 Fraser v State of Queensland (Queensland Police Service) & Ors (No 3) [2026] QIRC 236 Graaf v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2) [2025] QIRC 034 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: S Mackie instructed by Crown Law REASONS FOR DECISION [1] The Applicant's Complaint presently before the Tribunal was referred to the Tribunal from the Queensland Human Rights Commission on 17 March 2025 (Complaint). The Complaint contains allegations of discrimination on the basis of impairment and sex under the Anti-Discrimination Act 1991 (Qld) (AD Act) and breaches of the Human Rights Act 2019 (Qld), alleged to have occurred during the Legal Services Commission’s investigations into the Applicant's professional conduct. -- 2 of 8 -- 3 [2] Ms Winn's anti-discrimination complaint was made to the QHRC two years earlier, in March 2023. Ms Winn's statement of contentions was filed in November 2025, with amended contentions filed on 5 December 2025. [3] The investigations into the Applicant's professional conduct resulted in the Legal Services Commission filing an application in the Tribunal on 8 November 2024 under section 452 of the LP Act alleging the Applicant engaged in professional misconduct and/or unsatisfactory professional conduct and seeking disciplinary orders pursuant to section 456 of the Legal Profession Act 2007 (Qld) (LP Act) (discipline proceedings). The discipline proceedings are presently before the Tribunal as Case Number OCR264-24. [4] The uncontroversial evidence is that at the relevant times: (a) The Second Respondent was employed by the First Respondent working for the Legal Services Commission as the Legal Services Commissioner and had a number of functions, powers and/or responsibilities as set out in the LP Act. (b) The Third Respondent was employed by the First Respondent working for the Legal Services Commission as a Director, Compliance and Engagement, and had a number of functions, powers and/or responsibilities in the administration of the LP Act. The Third Respondent no longer works for the Legal Services Commission. (c) The Fourth Respondent was employed by the First Respondent working for the Legal Services Commission as a Director, Professional Conduct, and had a number of functions, powers and/or ·responsibilities in the administration of the LP Act. (d) The Fifth Respondent was employed by the First Respondent working for the Legal Services Commission as a Senior Investigator and had a number· of functions, powers and/or responsibilities in the administration of the LP Act. The Fifth Respondent no longer works for the Legal Services Commission. [5] The Respondents seek orders removing the Second to Fifth Respondents from the proceeding on the basis that public service employees are given statutory protection from civil liability for engaging in conduct in an official capacity. I shall refer to this as the statutory protection from civil liability issue. These reasons concern that application. [6] Chapter 7 part 1 of the Public Sector Act 2022 (Qld) (PS Act) deals with 'Protection from civil liability'. Section 266 sets out the main purpose of this part in these terms: (1) The main purpose of this part is to give public service employees protection from civil liability for engaging in conduct in an official capacity. (2) This part also gives particular persons other than public service employees protection from civil liability for engaging in conduct in an official capacity. [7] Section 269 extends protection from civil liability to a 'prescribed person'. Pursuant to section 268(1)(a), a prescribed person includes a public service employee. A 'public service employee' is earlier defined in sub-section 13(1) and relevantly includes a person employed under Chapter 4 or 5 in a public service entity as '(a) a general employee'. -- 3 of 8 -- 4 [8] Sub-section 268(2) provides that: (2) Also, this part applies to a person (also a prescribed person) who was a person of a type mentioned in subsection (1) at the time the person engaged in conduct in an official capacity. [9] Section 269 (1) (2) and (6) of the PS Act relevantly provide: 269 Civil liability of prescribed person for engaging in conduct in official capacity (1) A prescribed person does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity. (2) If subsection (1) prevents liability attaching to a prescribed person, the liability attaches instead as follows- (a) if paragraph (b) does not apply-to the State; (6) In this section civil liability, of a prescribed person for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the prescribed person because of- (a) a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased's dependants or estate; or (b) a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or (c) an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the prescribed person. Examples of types of liability- 1 a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cth) requiring payment of an amount to a complainant, however described, under the Act 2 a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper conduct means an act or an omission to perform an act. engage in conduct in an official capacity means engage in conduct as part of, or otherwise in connection with, a person's role as a prescribed person, including, for example, engage in conduct under or purportedly under an Act. [10] In its original submissions the respondent pointed to Section 707(1) of the LP Act which provides that an 'Act entity is not civilly liable to someone for an act done, or omission made, honestly and without negligence under this Act. Section 707(2) provides that if subsection (1) prevents a civil liability attaching to an Act entity, the liability attaches instead to the State'. Section 707(4)(a) provides that an Act entity -- 4 of 8 -- 5 means 'the Commissioner’. They submitted that while section 707(4)(g) provides that an Act entity means 'an employee or member of the staff of an entity mentioned in paragraphs (a) to (f), including, for example, an investigator'. Therefore, the Second to Fifth Respondents fall within the definition of an Act entity as defined in section 707 of the LP Act. In later submissions and in the hearing, they sought to move away from any reliance on Section 707 because it was unnecessary to rely on it. [11] Under section 42(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal may order that a party be removed from a proceeding if the Tribunal considers that the party's interests are not, or are no longer, affected by the proceeding; or b. the party is not a proper or necessary party to the proceeding, whether or not the party was one originally. Under section 47 of the QCAT Act there is also power to dismiss an application that is misconceived or without substance, and in effect doomed to fail. [12] All Respondents also sought summary dismissal of the claims on the basis they were is frivolous, vexatious or misconceived, or is otherwise lacking in substance. These reasons do not concern that application, which has been adjourned for a hearing on 15 September 2026. [13] I dismissed the Applicant’s cross-application filed on 20 August 2026, the day before the hearing to vacate the hearing which I ultimately conducted on 21 August 2026 for what she said were health reasons and to enable her to give instructions to Legal Aid which she claimed to have secured, and the Tribunal gave oral reasons at the hearing for doing so. The Applicant was phoned on her given contact number at the start of the hearing; a message was left for her to call the Tribunal for hearing. She did not do so. She was also sent an email telling her the matter was being heard and to make contact to participate in it/ She did not respond. [14] The Applicant was a barrister who was the subject of multiple complaints to, and investigations by, the Legal Services Commission. This led to currently on-foot disciplinary proceedings. The Applicant in response commenced discrimination proceedings against both the Legal Services Commission (via the First Respondent), and the individual Legal Services Commission staff involved in that process. [15] The Respondents also initially submitted that as staff of a regulatory body and administrative decision-maker, Legal Services Commission staff, actually employed by the departments are compelled to make decisions that leave persons aggrieved. Consequently, they are largely protected from civil suit by s 269 of the PS Act 2022 and s 707 of the Legal Profession Act 2007 (Qld) (LP Act). [16] The Respondents submitted that Section 707 provides a separate immunity for entities or persons who perform functions under the LPA, even if they are not State government employees. For example, s.707 of the LPA applies to employees of the Law Society, employees of the Bar Association or an "external intervener" appointed to wind-up a law firm under Chapter 5. ln the present case, this means that the individual respondents are covered by both s.269 of the PSA and s.707 of the LPA. [17] The Applicant Ms Winn filed detailed submissions contending that a claim that s.707 of the LP Act also does not apply because she "will produce evidence that proves that the relevant acts and omissions raised in the complaint were not done without negligence". Ms Winn does not state what that "negligence" is, other than to claim she will file "further submissions" that "will detail the prima facie case". -- 5 of 8 -- 6 [18] I do not need to decide what the scope of s.707 of the LP Act is because, whether or not it applies, there is nevertheless the protection available under s 269 of the PS Act. [19] As I have noted the Second Respondent was employed by the First Respondent working for the Legal Services Commission as the Legal Services Commissioner and had a number of functions, powers and/or responsibilities as set out in the LP Act. [20] I find that the Third to Fifth Respondents were employees of the First Respondent, and each was a 'prescribed person' within the meaning of section 268(1) of the PS Act, to which section 269 of the PS Act relates. The allegations against those three Respondents arise solely in their official capacity as employees of the First Respondent, specifically in the performance of their duties and decisions made at the direction of the Legal Services Commissioner. It follows that by virtue of section 269(1) and (6) of the PS Act, the Third to Fifth Respondents cannot be held civilly liable for their conduct in an official capacity. [21] The Applicant Ms Winn filed detailed submissions on the issue of the statutory protection from civil liability issue, contending that s.269 of the PS Act does not apply to the individually named respondents because s.260 (she submits) only applies to persons employed by the entities listed in Schedule 1 of the PS Act (Schedule 1 Employee). [22] The correct position is that the Third to Fifth Respondents were employees of the First Respondent, and each was a 'prescribed person' within the meaning of section 268(1) of the PS Act, to which section 269 of the PS Act relates. [23] In my view the immunity under s.269 of the PS Act applies to public service employees employed in entities listed in Schedule 1 of the PS Acty plus anyone employed by a department. [24] It is uncontroversial that each of the Third to Fifth Respondents were at the relevant times employed by the Department of Justice (as it is currently known). Therefore, they are covered and given immunity by s.269.That is because on the proper construction of s. 269 a prescribed person does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity. A prescribed person includes a public service employee. A public service employee is a person employed in a public service entity. A public service entity is a department or an entity mentioned in schedule 1 of the PSA. [25] It follows that the Third to Fifth Respondents, as persons employed by the Department of Justice (as it is currently known) are protected by the immunity. [26] As for the second respondent there is no need to decide whether s 707 of the Legal LP Act might apply, or for that matter be excluded because the Applicant hopes to prove that the relevant acts and omissions raised in the complaint were not done without negligence. That is because Regulation 16 of the Public Sector Regulation 2023 provides that for s.268(1)(g) of the PS Act, each person mentioned in Schedule 1 is a prescribed person. Item 13 of Schedule 1 lists "the commissioner under the Legal Profession Act 2007". Therefore, the Second Respondent is also a prescribed person for the purpose of s.268 of the PS Act and is also protected by the immunity. [27] This approach is consistent with the approach taken by Deputy President Merrell in Graaf v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2) [2025] QIRC 034 (Graafland). -- 6 of 8 -- 7 [28] The decision in Graafland concerned a discrimination complaint made under the AD Act referred to the QIRC. The claims against the individual Respondents other than the State were struck out by the QIRC on the basis that under section 269 of the PS Act, any civil liability for their actions as employees while engaged in conduct of an official capacity attached to the First Respondent, the State of Queensland. [29] Deputy President Merrell held; [39] From a comparison of the statutory texts, it is obvious that s 269 of the PS Act has the same purpose or policy objective, but in respect of different persons, as s 10.5 of the Police Service Administration Act 1990; namely, that the identified person is protected from civil liability for engaging in conduct in an official capacity and that any civil liability instead attaches to the State of Queensland. [40] For the reasons I have given earlier, s 539(b)(iv) of the IR Act confers an unfettered discretion on the Commission to strike out a party to a proceeding. That is, unlike r 69 of the Uniform Civil Procedure Rules 1999, the exercise of the discretion is not dependent on the Commission finding that the party was improperly or unnecessarily included as a party. [41] However, in my view, for the same reasons given by Martin SJA in McEwan, it is highly certain that if the Second, Third or Fourth Respondents are found to be liable under the Anti-Discrimination Act 1991 in respect of the allegations made against them by the Complainant, no civil liability would attach to them. The civil liability would attach to the First Respondent. [42] For this reason, I am of the view that the Second, Third and Fourth Respondents should be shuck out as parties to the proceeding in this Commission. This is because no civil liability can attach to them. [43] The Complainant's submissions do not persuade me otherwise. [44] First, s 269 of the PS Act operates independently of any acceptance of liability, by the First Respondent, for the conduct of the Second, Third or Fourth Respondents. [ 45] Secondly, the issues of good faith and gross negligence, referred to by the Complainant in her submissions, only concern the circumstance where, pursuant to s 269 of the PS Act, civil liability does attach to the First Respondent and where the First Respondent then seeks to recover a contribution from the Second, Third or Fourth Respondents. [46] Thirdly, it is undisputed that the Second, Third and Fourth Respondents are no longer employed in the positions relevant to the allegations made against them by the Complainant. However, those facts have no effect on the operation of s 269 of the PS Act. This is because s 268(2) of the PS Act provides that ch 7, pt 1 of the PS Act applies to a person at the time the person engaged in the conduct in an official capacity. [47] Fourthly, even assuming the fact suggested by the Complainant, namely, that the First Respondent has had difficulty seeking information from the Second, Third and Fourth Respondents because they are no longer employed by the First Respondent, that assumption on its own cannot be a reason, in light of the operation of ch 7, pt 1 of the PS Act, not to strike out the Second, Third and Fourth Respondents as parties to the proceeding. [30] I respectfully agree with that analysis and adopt and apply it here. -- 7 of 8 -- 8 [31] The decision in Graafland has since been adopted and applied in Fraser v State of Queensland (Queensland Police Service) & Ors (No 3) [2026] QIRC 236, in which Commissioner O'Neill granted an application similar to that of the present and also Commissioner Pratt in Fletcher v State of Queensland (Queensland Police Service) & Ors [2025] QIRC 234. Disposition and Orders [32] For the reasons I have given, the complaints against the Second to Fifth Respondents are dismissed and I order that the Second to Fifth Respondents be removed as parties to the proceeding. [33] I do grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. -- 8 of 8 --