QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Byrne v State of Queensland (Queensland Health) [2022] QIRC 013

Byrne, Cheryl Murtagh
(Applicant)

v

State of Queensland (Queensland Health) (Respondent)
	
CASE NO:
	GP/2020/23
	
PROCEEDING:
	Application in existing proceedings
	
DELIVERED ON:
	25 January 2022	
MEMBER:

HEARD AT:
	McLennan IC

On the papers	
  ORDERS:	1.	That the First Cause of Action as defined in this Decision is dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).

2.	That the Applicant is to file a Further Amended Statement of Facts and Contentions with the Industrial Registry that contains the following amendments:

a.	the Applicant is to strike out [5], [6], [14] and Annexure A of the Amended Statement of Facts and Contentions; 

b.	the Applicant is to amend [13]a) of the Amended Statement of Facts and Contentions to include specific reference to the paragraph that contains the complaint/s referred to therein; 

c.	the Applicant is to include the wording "further, or in the alternative" between paragraphs [13]a) and [13]b) of the Amended Statement of Facts and Contentions; 

d.	the Applicant is to amend [11] of the Amended Statement of Facts and Contentions to include reference to the natural person/s subject of the allegations; and

e.	the Applicant is to amend [15] of the Amended Statement of Facts and Contentions to include particulars of the date, time and recipient of the complaints referred to therein. 

3.	That the Further Amended Statement of Facts and Contentions is to be filed with the Industrial Registry within 21 days from the release of this Decision. 

4.	That the Respondent's Application in existing proceedings filed 21 May 2021 is otherwise dismissed. 

5.	A decision on costs is reserved.
	
CATCHWORDS:

LEGISLATION & OTHER INSTRUMENTS:

CASES:

	INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – where Respondent seeks dismissal of various causes of action pleaded in statement of facts and contentions – whether causes of action are deficient – whether causes of action should be dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) – whether causes of action should be dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) – consideration of 'desirable in the public interest' – whether deficiencies can be overcome by amendment

Industrial Relations Act 1999 (Qld) s 274, s 331

Industrial Relations Act 2016 (Qld) s 3, s 282, 
s 284, s 285, s 295, s 306, s 451, s 531, s 541

Public Service Act 2008 (Qld) s 175, s 178

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2020] QIRC 086

Australian Workers' Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222

Childs v Metropolitan Transport Trust (1982) 29 AILR 24

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462

Dalley v Kelsey [2018] ICQ 6
Department of Corrective Services v The Queensland Public Sector Union of Employees (2006) 182 QGIG 152

Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255

Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2000] NSWSC 1215

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

KTC v David (No. 1) [2019] NSWSC 281

Myers v State of Queensland (Department of Education) [2021] QIRC 108

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Pereira v State of Queensland (Department of Health, Queensland Ambulance Service) & Anor [2019] QIRC 136

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049

Sabapathy v Jetstar Airways [2021] FCAFC 25

Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224
	
Reasons for Decision

Background

[1]	On 4 November 2020, Mrs Cheryl Byrne (the Applicant) filed a Form 2 Application seeking for the Commission to deal with a general protections dispute (the General Protections Dispute) under the Industrial Relations Act 2016 (Qld) (the IR Act). The Respondent to that General Protections Dispute is the State of Queensland (Queensland Health) (the Respondent). 

[2]	On 21 May 2021, the Respondent filed a Form 4 - Application in existing proceedings (the Application). The Application was accompanied by a Form 20 - Affidavit affirmed by Mr Lachlan Grant of Crown Law. 

[3]	I note Mrs Byrne is the Applicant in the substantive matter but the Respondent in the Application. For ease of reference, I will continue to refer to her as the Applicant and the State of Queensland (Queensland Health) as the Respondent. 

[4]	The Application claims that four of the five causes of action pleaded by the Applicant "are deficient and disclose no proper answerable claim". On that basis, the Respondent seeks the following:

a.	Orders that the four deficient causes of action be dismissed:

i.	    Pursuant to s 451(2) of the IR Act, on the basis that they cannot succeed
 on any view of the facts or law; or alternatively to (i)

ii.	   Pursuant to s 541(b)(ii) of the IR Act, on the basis that further proceedings by the Commission in respect of them are not necessary or desirable in the public interest; 

b.	Any other order(s) that the Commission deems appropriate; and

c.	That all questions of costs of and incidental to the proceeding be reserved.

[5]	On 7 June 2021, Industrial Commissioner Dwyer issued a Directions Order seeking outlines of argument with respect to the Application. On 5 October 2021, Industrial Commissioner Dwyer conducted a conciliation conference. That conference did not resolve the issues subject of the Application and the Applicant requested the matter be allocated to another member for hearing. 

[6]	On 27 October 2021, I issued a Directions Order inviting any supplementary written submissions that the parties wished to file and advised the Application would be heard on the papers.

Legislative framework

			Section 451(2) of the IR Act

[7]	The Respondent seeks the relevant causes of action be dismissed on the basis they cannot succeed on any view of the facts or law pursuant to s 451(2) of the IR Act:

451 	General powers
		
(1)	The commission has the power to do all things necessary or convenient to be done for the performance of its functions.

(2)	Without limiting subsection (1), the commission in proceedings may—

(a)	give directions about the hearing of a matter; or

(b)	make a decision it considers appropriate, irrespective of the relief sought by a party; or

(c)	make an order it considers appropriate.

[8]	The Respondent refers to s 274(2) of the Industrial Relations Act 1999 (Qld) as being "in materially identical terms" to s 451(2) of the IR Act. Authorities considering s 274(2) have indicated that the Commission has the power to dismiss an application "once it is demonstrated that an application is one which might not succeed on any view of the facts or law."

Section 541(b)(ii) of the IR Act

[9]	In the alternative, the Respondent seeks that the relevant causes of action be dismissed on the basis that further proceedings by the Commission in respect of them are not necessary or desirable in the public interest pursuant to s 541(b)(ii) of the IR Act (emphasis added): 

541	Decisions generally

The court or commission may, in an industrial cause do any of the following—

(a)		make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

(b)	dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—

(i)	the cause is trivial; or

(ii)	further proceedings by the court or commission are not necessary or desirable in the public interest;

(c)	order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

[10]	With respect to s 541 of the IR Act, the Respondent submits the following:

•	the expression "in the public interest" relevantly imports a discretionary value judgment to be made by reference to the facts, confined only by the objects of the legislation in question;

•	the power is to be exercised with due circumspection on a proper consideration of relevant materials;

•	the value judgment incorporated in s 541(b)(ii) is a broad one; and

•	matters of efficiency and fairness are relevant.

[11]	In Campbell v State of Queensland (Department of Justice and Attorney-General), Justice Martin provided (emphasis added, citations removed):

[25]	Similarly, in Prange v Brisbane City Council, Hall P held at [3] that: 

"The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained:

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

[26]	In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows: 

"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."

[12]	With respect to s 541 of the IR Act, the Applicant submits "the question is not to be decided taking the states's (sic) case at its highest though as this would almost always result in the dismissal of an application under s 541." Further, the Applicant refers to the main purpose of the IR Act as prescribed below:

3	Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that-

(a)	is fair and balanced; and

(b)	supports the delivery of high quality services, economic prosperity and social justice for Queenslanders. 

Other relevant principles

[13]	In Gilbert v Metro North Hospital Health Service & Ors, Vice President O'Connor clarified the function of a statement of facts and contentions (emphasis added, citations removed):
[477]	It must be accepted that where the Commission orders the filing of SFCs they serve to alert the other party to the case it will have to deal with and it identifies the issues which exist and, in turn, allows for a confinement of the matters in dispute. Subject always to the Commission's power to allow appropriate amendments, a party will be bound by its SFCs and may not lead evidence or make submissions which are not relevant to the identified issues.
	[478]	Whilst it is to be appreciated that in the Commission a SFC is not attended with the same level of formality as pleadings are, in the traditional sense. In this matter, the Commission has, consistent with the provisions of s 531 of the IR Act, required the parties to provide an outline of their respective cases. 
[479]	As was observed by Martin J in Carlton v Blackwood (Carlton):
An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment. 
	[480]	It is consistent with the requirements of s 531 of the IR Act for a party in a proceeding under the IR Act to set out its case by way of a SFC. As was expressed by Martin J in Carlton, the SFC serves to alert the other party to the case it will have to deal with and identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. It serves also to assist the Commission in knowing the nature and extent of the matter it is being called upon to adjudicate.
[14]	In Sabapathy v Jetstar Airways, the Full Federal Court considered the following with respect to deficiencies in a pleading (emphasis added):

[31]	As Lindgren J explained in Australian Automotive Repairers Association (Political Action Committee) Inc v NRMA Insurance Limited at [15]:

The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law.  Particulars serve only the former purpose. Consistently with the distinction, a respondent is required to plead to a statement of material facts, but not to particulars (Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 ("David Jones")) and it is not a function of particulars to remedy an omission of material facts (Oldhams Press, above; Rubenstein v Truth and Sportsman Ltd [1960] VR 473; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242). Particulars have a role to play where all the material facts have been pleaded but leave the other party inadequately informed of the case to be met; cf Oldhams Press, above.

	[32]	One of the main purposes of pleadings is to define the questions for determination with sufficient clarity to enable the opposite party or parties to understand the case they have to meet and to provide them with a fair opportunity to do so: see Dare v Pulham (1982) 148 CLR 658 at 664. The amended statement of claim did not fulfil this purpose. Further, as Mr Sabapathy’s then counsel put it in the written submissions in the court below, a statement of claim "must simply and, as succinctly as possible, state the material facts giving rise to the claim". The amended statement of claim did not do this.

[33]	It was open to his Honour to deal with the matter in a piecemeal fashion savaging those paragraphs which did plead material facts and were not embarrassing or ambiguous.  It was also open to his Honour to disregard the matters of evidence.  But his failure to do either of these things does not give rise to appealable error.  In a case such as this, where extensive amendments were required, it was well within his Honour’s discretion to strike out the whole of the pleading:  see, for example, Coshott v Kam Tou Mak [1998] FCA 147 in which Wilcox J did just that in analogous circumstances.

[15]	The need for precise pleadings in a general protections claim was also discussed in Sabapathy v Jetstar Airways (emphasis added):

[39]  	…This Court has repeatedly emphasised the need for precision in pleading, regardless of where it is commenced.  In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63]–[65], the Full Court (Logan, Bromberg and Katzmann JJ) observed that:

	[A] civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature:  Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less …

			Litigation is not a free for all …

	The long and the short of it, then, is that a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met.

[40]	Similar observations were made by the Full Court (Tracey, Reeves and Bromwich JJ) in Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [49]–[50].

[41]	It is true that the observations in both these judgments were made in the context of a case that was commenced in this Court.  But the same point was made in Cleland v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 at [102] in the context of a case commenced in the Circuit Court. There, Bromberg J remarked that "[a]llegations of contravention of the general protections provisions are inherently serious" and that, as a matter of fairness, they should be pleaded "with sufficient precision" to enable a respondent to know the case against it", citing the observations made in BHP Coal at [63]–[65]. The nature of a proceeding alleging a contravention of a general protection provision and that an individual was a party to such a contravention does not vary according to whether it is instituted in this Court or in the Circuit Court. In each instance, the proceeding is one for the recovery of a pecuniary penalty and thus penal in nature.

[16]	I will now consider each of the relevant causes of action in turn. I have decided not to approach the writing of this Decision by summarising the totality of the parties' submissions but will instead refer to the parties' key positions where relevant. 

The First Cause of Action 

	Background

[17]	In the Applicant's Amended Statement of Facts and Contentions filed 27 April 2021 (the ASOFC), the Applicant claims a breach of s 295 of the IR Act on the basis that the Respondent took adverse action "to force the applicant to cease working at the Bundaberg Base Hospital because she had an impairment" (the First Cause of Action). 

[18]	The First Cause of Action is expressed in [5] and [6] of the ASOFC and was summarised by the Applicant as follows:

… the hospital took adverse action against her by preventing her from performing her clinical coaching role, removing all sedentary tasks from her work requirements, forcing her back to full duties and forcing her to increase her nursing duties generally in an environment of poor ergonomic design. The crux of Ms Byrne's allegation is that the hospital did these things to force her to stop working there because she had an injury to her spine.

	The Respondent's complaint

[19]	The Respondent takes issue with the First Cause of Action because it "makes no allegation of principal liability". The Respondent's contention in this regard is twofold:

•	if the Respondent is to be held liable for adverse action, the Applicant must rely on general principles of vicarious liability; and

•	for there to be vicarious liability, there must first be principal liability.

[20]	The Respondent argues a relevant natural person or persons must be identified, noting that "Adverse action claims involve an inquiry into the 'mental processes' of, or 'reasoning actually employed' by the person responsible for the action." I note that relevant to this argument is the reverse onus under s 306 of the IR Act which stipulates (emphasis added):

306 	Reason for action to be presumed unless proved otherwise

(1)	Subsection (2) applies if -

(a)	in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

		(b) 	taking that action for that reason or with that intent would be a contravention of the provision.

	(2) 	It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

	(3) 	Subsection (2) does not apply in relation to orders for an interim injunction.

[21]	The Respondent refers to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd as authority for the proposition that failure to identify any relevant officer at all justifies a strike out of the allegation (emphasis added):
[60]	A mental state such as knowledge can only be attributed to a corporation by attributing it to one or more of the corporation’s officers or employees:  Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582-583. For the purposes of the FWA, s 793(2) provides that if it is necessary to establish the state of mind of a body corporate, it is enough to show that the relevant conduct was engaged in by a person specified in s 793(1) and that person had the required state of mind. The persons specified in s 793(1) are an officer, employee or agent (an "official") engaged in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority; and any person acting at the direction or with the consent or agreement of an official if the direction, consent or agreement is within the scope of the official’s actual or apparent authority.
[61]	In Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [53], Besanko J held that the people whose knowledge was to be attributed to a company should be identified in the statement of claim. Similarly, in Lee v Westpac Banking Corporation [2015] FCA 467 at [23]-[25], Dowsett J held that a party pleading the imputed knowledge of a company must identify in its pleading any agent, officer, employee or other person whose relevant knowledge the pleader seeks to attribute to the company, and must identify such knowledge.
[62]	Neither case specifically decided whether the identities of the relevant persons are material facts, or evidence by which a material fact (the knowledge of the company) is to be proved. The point was not argued in this case, and it is unnecessary to decide it. That is because the applicant failed to identify any relevant officer of the Downer entities in the ASOC at all. If the identities of the relevant officer or officers were material facts, r 16.02(1)(d) of the Rules required the applicant to plead that matter. If their identities were a matter of evidence, then rr 16.4(1) and 16.43 required that information to be particularised. The applicant’s failure to identify any relevant officer at all justified the primary judge’s order to strike out paragraph 28B of the ASOC.
	The Applicant's response

[22]	Initially the Applicant argued that "Pleading this information is unnecessary as the respondent has been able to deny the allegations" with reference to [5](e) of the Respondent's Statement of Facts and Contentions. In response, the Respondent contended that statement "is wrong, and makes no progress towards a fair hearing" because "more is necessary for a proper fairly answerable claim" and "The Respondent properly denied the allegations as made."

[23]	Subsequently, the Applicant conceded the First Cause of Action does not make any allegation of principal liability, but argues "it is the sort of thing that could be dealt with by a request for particulars or by amendment to the statement of facts and contentions. It is not a summary dismissal point." 

	Consideration

[24]	I accept the Applicant has not made an allegation of principal liability against any natural person employed by the Respondent under the First Cause of Action. I also accept the Respondent "cannot relevantly act other than through natural persons" and with no principal liability alleged, there is no basis for the Respondent to be vicariously liable. The First Cause of Action is therefore deficient in this regard and in such circumstances, the Applicant submits the appropriate remedy would be an order that she file and serve a further ASOFC. 

[25]	The Respondent lists several occasions on which the Applicant was advised of the defect and was given opportunity to rectify - the first being on 7 May 2021. The Respondent states the Applicant "continues to refuse to provide" what it argues is a "material fact" rather than "a particular". The Respondent contends the "continued refusal to articulate a proper, fairly answerable claim is inconsistent with progression towards a fair hearing" and therefore "ought to be dismissed as not being desirable or in the public interest."

[26]	It is rather baffling that after conceding the First Cause of Action contains no allegation of principal liability as early as 23 July 2021, the Applicant has proceeded to defend the Application rather than provide the relevant information and seek leave to amend her ASOFC. The Applicant had previously been advised by the Respondent that "As canvassed at the mention, the Respondent would be pleased to narrow the scope of its application, should your client choose to remedy any of the deficiencies."The Applicant's unwillingness or inability to rectify the defect has contributed to barring the progression of this proceeding.  

[27]	Although the issue with the First Cause of Action could be rectified by way of amendment, there comes a point where failure to rectify after conceding there is an issue forms a reasonable and proper basis to dismiss that part of the proceeding. Despite the time that has elapsed and the Respondent clearly articulating the deficiency, I agree that "the Applicant has made no move to regularise those claims, in disregard of the Respondent's interests." 

[28]	The clear prejudice that would be suffered by the Applicant should I decide to dismiss the First Cause of Action is that she will lose the opportunity for this First Cause of Action to be fully heard and decided. However, by virtue of the deficiency, the issues in dispute under the First Cause of Action are not defined which inhibits the Respondent from preparing its case accordingly. Those accused of a contravention deserve to know precisely the case that is being made against them and the Applicant has not adequately addressed this requirement. I agree with the Respondent that "Such a vague and untethered claim leads only to increased costs and difficulty." There is clearly an unwillingness or inability to rectify the deficiency of the First Cause of Action and this continued delay is prejudicial to the Respondent's ability to formulate its case. 

[29]	Delay is in itself prejudicial to the Respondent which has been unable to identify and interview the natural persons from whom these allegations stem. Over time the memories of any potential witnesses would likely have faded and some of those witnesses may have even ceased working for the Respondent. Such factors are particularly prejudicial considering the reverse onus.

[30]	The Applicant refers to the decision in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health). In that decision, the Full Bench determined it is ordinarily best that all issues in a proceeding be disposed of at the one time and separate determination of issues may be inappropriate where there are intertwined issues of fact or law. However, also in that decision, the Full Bench concluded:

The purpose of the discretion conferred in s 541(b)(ii) of the Act and the probability that matters would be narrowed between the parties and potentially reduce costs to the parties and promote the more efficient use of the Commission's time and resources, weigh in favour of the Union's application to dismiss first and separately.

[31]	I reject the Applicant's argument that striking out one or a few causes of action would "create a multiplicity of issues and fragmentation of proceedings". Rather, upon review I have concluded that each cause of action is quite separate and refers to different allegations of adverse action which marks a "clear demarcation between the issue and all other issues in the case".

[32]	As I concluded in Myers v State of Queensland (Department of Education), "Where a litigant's actions are repeatedly and blatantly inconsistent with progression towards a fair hearing, I consider it must be dismissed for not being desirable in the public interest." 
The Applicant's lack of action has caused undue delay in progression of this proceeding and has unfairly inhibited the Respondent from knowing and responding to serious allegations made against it. I consider that further opportunity to rectify this deficiency will only result in more costs, delay and prejudice to the Respondent. For those reasons, I have determined to exercise my discretion to order the First Cause of Action be dismissed as not being desirable in the public interest pursuant to s 541(b)(ii) of the IR Act. The Applicant is to amend her ASOFC accordingly by striking out [5] and [6] of the ASOFC. 

The Third Cause of Action 

	Background

[33]	The Applicant claims alleged breaches of ss 285(1)(a)(ii) and 295(1) of the IR Act regarding alleged modifications to "the applicant's office" (the Third Cause of Action).
 
[34]	The Third Cause of Action is expressed in [11] to [13] of the ASOFC and was summarised by the Applicant as follows:

… 'the hospital' provided ergonomic equipment to other staff offices in the hospital but not hers, and removed fixtures and furniture from her office only. Ms Byrne says that the hospital took these actions because she had a right to make a complaint in relation to her employment and because she had an injury, with the alleged motivation of forcing her to stop working at the Bundaberg Base Hospital.

[35]	The Respondent takes issue with the Third Cause of Action because it:

•	"does not identify a 'workplace right'";

•	"makes no allegation of principal liability"; and

•	"contains inconsistent claims not pleaded as alternatives".

Does not identify a workplace right

		The Respondent's complaint

[36]	The Respondent takes issue with the Third Cause of Action on the following basis:

•	although [10](a)-(b) and (d)-(e) particularise identifiable complaints, "those apparently concern workplace health and safety matters" and rights pertaining to such matters are excluded from s 284 of the IR Act;

•	the complaints referred to in [14] and Annexure A are unintelligible, ambiguous and incapable of identification;

•	there is disparity between what is referred to in Annexure A and what has been disclosed to the Respondent; and

•	the claim impermissibly "rolls up" hundreds of allegations.

[37]	The Respondent contends the Applicant must establish a relevant 'workplace right' "as an objective fact", the "particular reason or the particular intent for the contravening action" and the alleged reason or intent must be identified "precisely and distinctly". The Respondent argues the Applicant "is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged… with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet."

[38]	The Respondent refers to KTC v David (No. 1) in which the Supreme Court of New South Wales held:

The Court resolutely rejects an approach to pleading which entails the indiscriminate recitation of large numbers of facts and details but insignificant particulars combined with rolled up conclusions, and which is then defended on the basis that at the end of the hearing at least one of the causes of action alleged can be expected to have been established.

	The Applicant's response

[39]	The Applicant contends "her workplace right to make complaints in relation to her employment" is identified by reading [11]-[13] together with [10] and [14] of the ASOFC. 

[40]	The Applicant argues the particular reason or the particular intent for taking the adverse action is pleaded in [13] of the ASOFC. The Applicant further argues the ASOFC provides an outline of her case and the Respondent has been able to understand the different causes of action pleaded.

[41]	With respect to the Respondent's contention that 'workplace right' does not include a right under workplace health and safety laws, the Applicant argues the Work Health and Safety Act 2011 (Qld) is an industrial law under the IR Act. Further, the Applicant submits her right to make a complaint falls under s 284(1)(c)(ii) because that provision refers to an employee having a workplace right if they are able to "make a complaint or inquiry in relation to their employment."

[42]	As the parties agree that the complaints outlined in [10] of the ASOFC are identifiable in contrast to those listed in [14] and Annexure A, I have determined it is appropriate to consider the complaints separately. 

Consideration - [10]

[43]	It is not in contention that [10](a)-(b) and (d)-(e) stipulate identifiable complaints. However, for the reasons outlined above, the parties differ in opinion on whether those complaints are excluded from the meaning of a workplace right under s 284 of the IR Act. 

[44]	Upon consideration of the submissions presented by both parties, I consider it arguable that making the complaints stipulated in [10] of the ASOFC constitutes a workplace right pursuant to s 284 of the IR Act. I am not convinced that the complaints outlined in [10] of the ASOFC are excluded from s 284 of the IR Act nor that the Applicant's case in this regard is one which might not succeed on any view of the facts or law. Therefore, I will not strike out [10] of the ASOFC under ss 451(2) nor 541(b)(ii) of the IR Act. Instead, any issues still in dispute in this regard may appropriately be dealt with at the final hearing of this matter.    

	Consideration - [14] and Annexure A

[45]	I agree with the Respondent that the table contained in Annexure A does not list identifiable complaints but rather ambiguously refers to numerous emails across many dates and includes only a few words seemingly intended to encapsulate the basis of the complaint. That is unacceptable. Even if it is the case that the Applicant intends to rely upon multiple complaints made over a period of time, each of those complaints need to be sufficiently particularised to afford the Respondent an opportunity to understand and respond. 

[46]	The Respondent effectively summarised the effect of Annexure A as although it "appears, superficially, to be replete with detail, the effect of that detail is to obscure, rather than assist with, the identification of any particular complaint." I appreciate there is a large volume of complaints - approximately 400 are outlined in Annexure A. However, that does not negate the need for each of those complaints to be particularised so that if it chooses, the Respondent is given the opportunity to understand and make enquiries in relation to each of them. 

[47]	In my view, reformatting of the table will not suffice - much more is required. Although this issue may have been appropriately dealt with by way of amendment initially, it is concerning the Applicant has failed to rectify the blatant vagaries in the many months since the Respondent raised the issue on 11 June 2021 and repeatedly again thereafter. The inability or unwillingness to clearly particularise the complaints giving rise to the workplace right has contributed to the delay in this proceeding and given the lengthy history of discussion regarding the issues raised by the Respondent, it appears that any order for amendment will only delay the proceeding further and result in further costs.  

[48]	If I were to strike out [14] and Annexure A of the ASOFC, the Applicant would be prejudiced by the inability to rely upon those complaints as a workplace right. However, I consider that to be outweighed by prejudice to the Respondent's inability to formulate its case, respond appropriately and discharge the reverse onus. That is particularly unacceptable considering the "Allegations of contraventions of the general protections provisions are inherently serious and should, as a matter of fairness, be pleaded with sufficient precision for a respondent to know the case against it." 

[49]	For the reasons outlined above, I conclude that the inability or unwillingness of the Applicant to establish a workplace right in [14] and Annexure A of the ASOFC enlivens my discretion to order a strike out of [14] and Annexure A because proceeding to hear those matters or making an alternative order is not desirable in the public interest pursuant to s 541(b)(ii) of the IR Act. I appreciate that s 541(b)(ii) refers to dismissing "the cause" rather than part of a cause by, for example, striking out paragraphs. Therefore, in the event I am wrong on that point, I make the decision to strike out [14] and Annexure A of the ASOFC under s 541(a) of the IR Act because it is a decision I have determined to be just for the reasons outlined above and can be made "without being restricted to any specific relief claimed by the parties to the cause."

[50]	The Applicant is ordered to strike out [14], Annexure A and any other reference to Annexure A within the ASOFC. 

Other orders

[51]	In [13]a) of the ASOFC, the Applicant states she "has exercised her workplace right to make a complaint in relation to her employment". Although the Applicant's submissions indicate that [11] to [13] are to be read together with paragraphs [10] and [14], that is not clear by reading the ASOFC. 

[52]	Pursuant to s 451(1) of the IR Act, "The commission has the power to do all things necessary or convenient to be done for the performance of its functions" and pursuant to sub-s (2)(c), the commission may "make a decision it considers appropriate". I consider the ambiguity outlined in [51] above can be appropriately rectified by the Applicant amending [13]a) of the ASOFC to include specific reference to the paragraph that contains the complaint/s she is referring to therein. I will order accordingly. 

	Inconsistent claims

		The parties' submissions

[53]	The Third Cause of Action alleges that adverse action was taken because of a workplace right and because of the Applicant's impairment - thereby alleging two different states of mind.

[54]	The Applicant argues the Respondent's complaint about inconsistent claims being pleaded at [13]a) and [13]b) can be resolved by the applicant inserting the words "Further, or in the alternative" at the beginning of [13]b). However, the Respondent contends even that amendment would mean the Applicant is asserting that the decision-maker had two different states of mind. In reply, the Applicant argues that adverse action could be taken against someone for two distinct reasons at the same time.

	Consideration

[55]	Upon review of the submissions presented by both parties, I am not convinced that adverse action could not be taken against someone for two distinct reasons and am not convinced that is an argument which might not succeed on any view of the facts or law. Therefore, I will not dismiss the action under ss 451(2) or 541(b)(ii) of the IR Act. Instead, any issues still in dispute in this regard may appropriately be dealt with at the final hearing of this matter. 

[56]	For clarity and completeness, I consider it appropriate that the Applicant amend her ASOFC to include the wording "Further, or in the alternative" between paragraphs [13]a) and [13]b). I will order accordingly pursuant to s 451(2)(c) of the IR Act.

	No allegation of principal liability

	The Respondent's complaint

[57]	The Respondent relies upon the arguments summarised under the First Cause of Action in this Decision with respect to principal and vicarious liability. Further, the Respondent asserts that the Applicant has refused "to identify the natural persons from whom the Respondent must obtain evidence, and whose reasons the Commission will ultimately be required to interrogate" and "makes no progress towards a fair hearing."

The Applicant's response

[58]	The Applicant argues the relevant sections forming the basis of the Third Cause of Action, namely ss 285 and 295, apply to action taken by the employer by virtue of s 280(a) of the IR Act and there is no requirement to plead the specific person who took the action. Alternatively, the Applicant argues "such an allegation can be cured by a request for particulars and is not a basis for summary dismissal." 

Consideration

[59]	I accept the Applicant has not made an allegation of principal liability against any natural person employed by the Respondent under the Third Cause of Action. Although the Applicant is correct in noting the relevant sections refer to action taken by "the employer", I accept the Respondent "cannot relevantly act other than through natural persons" and with no principal liability alleged, there is no basis for the Respondent to be vicariously liable. The Third Cause of Action is therefore deficient in this regard and the Applicant submits such a defect could be cured by a request for particulars. 

[60]	The absence of identification of natural persons clearly puts the Respondent in a difficult position whereby it is unable to interview those individuals to establish what occurred and why. Overall, the lack of identification unfairly prohibits the Respondent from being able to fully understand the case being made against it.

[61]	I rely upon and apply my reasons in [24] to [32] of this Decision and conclude that the inability or unwillingness of the Applicant to establish principal and then vicarious liability enlivens my discretion to dismiss the Third Cause of Action as not being desirable in the public interest pursuant to s 541(b)(ii) of the IR Act. However, the Applicant's submissions suggest that the wording within ss 285 and 295 of the IR Act appear to have confused the Applicant into concluding that a specific person need not be identified. Somewhat peculiarly, when this defect was raised under the First Cause of Action, which also pertains to s 295 of the IR Act, the Applicant ultimately conceded that establishing principal liability is a requirement but then under the Third Cause of Action argued there is no such requirement. Nevertheless, out of an abundance of fairness to the Applicant, I will provide her with a final opportunity to amend her ASOFC in this regard. 

[62]	The Applicant is to amend [11] of her ASOFC to identify the natural person/s subject of the allegations instead of "the hospital". I will order accordingly pursuant to s 451(2)(c) of the IR Act.

The Fourth & Fifth Causes of Action 

	Background

[63]	The Applicant claims alleged adverse action in respect of the Respondent's directions that she submit to independent medical examinations (IMEs) pursuant to s 175 of the PS Act (the Fourth Cause of Action). Specifically the Applicant submits that Mr Adrian Pennington, Chief Executive of the Wide Bay Hospital and Health Service (WBHHS) directed her to attend two IMEs.

[64]	The Applicant also claims alleged adverse action in respect of the Respondent's decision to medically retire her under s 178 of the PS Act (the Fifth Cause of Action). Specifically, the Applicant submits that Ms Debbie Carroll, acting Chief Executive of the WBHHS decided to medically retire the Applicant because the Applicant had made extensive complaints and in an attempt to stop the Applicant from continuing with the complaints or making further complaints.

[65]	The Respondent takes issue with the Fourth Cause of Action because it:

i.	Does not identify the alleged 'adverse action' and concerns conduct that was not 'adverse action' because it was 'authorised' within the meaning of s 282(6) of the IR Act (and in any event an ordinary incident of employment and not 'adverse' at all); 

ii.	Does not identify a 'workplace right'; and

iii.	Impermissibly 'rolls up' hundreds of allegations; …

[66]	The Respondent takes issue with the Fifth Cause of Action because it:

i.	Concerns conduct that was not 'adverse action' because it was 'authorised' within the meaning of s 282(6) of the IR Act; 

ii.	Does not identify a 'workplace right'; and 

iii.	Impermissibly 'rolls up' hundreds of allegations.

	Does not identify a workplace right & impermissibly rolls up hundreds of allegations

		Respondent's complaints

[67]	The Respondent contends there is ambiguity and "while a handful of complaints are identifiable across paragraph 10 to 19 of the ASOFCs, many concern workplace health and safety (and are thus excluded) and, more significantly, those paragraphs largely do not plead identifiable complaints at all."
		
		Applicant's response

[68]	The Applicant argues:

•	her case is not that her employer took specific adverse action in relation to a specific complaint but rather "she made extensive complaints over a period of time to her employer, and the employer took adverse action against her to stop her doing so, effectively by forcing her to cease employment."; and

•	The "singular includes the plural" and the protection under s 285 of the IR Act "therefore contemplates an employer taking (for example) a single adverse action against an employee who exercises multiple workplace rights by making numerous complaints in relation to their employment."

[69]	The Applicant argues the workplace rights are identified at [19A] of the ASOFC which refers to [10]-[19]. 

Consideration

[70]	As ordered above, [14] and Annexure A will be struck out from the ASOFC and I have established that [10] contains identifiable complaints. 

[71]	The complaints outlined in [15] of the ASOFC significantly lack particularity but are relatively clear in terms of substance. It appears that [15] is an attempt to describe some complaints referred to in Annexure A of the ASOFC. In the circumstances, I consider it appropriate that the Applicant amend [15] of her ASOFC to include particulars of the exact date and time of the complaint, indicate from whom and to whom it was sent and how the complaint was made. To be clear, this is not an opportunity for the Applicant to add complaints to [15] but rather to particularise the details of the complaints already broadly articulated. I will order accordingly pursuant to s 451(2)(c) of the IR Act.

[72]	I consider the remaining workplace rights in [17] and [18] of the ASOFC to be identifiable and therefore reject the Respondent's argument that the Fourth and Fifth Causes of Action should be dismissed for not identifying workplace rights. 

	Does not identify alleged adverse action

		The Respondent's complaints

[73]	The Respondent disagrees that requiring an employee to attend a medical examination constitutes an 'injury' to the employee within the meaning of s 282(1)(b) of the IR Act but argues it is rather "an ordinary incident of employment." In that regard, the Respondent contends:

A s 282(1)(b) 'injury' concerns an adverse effect upon an existing legal right, or injury of any "compensable" kind. What is relevantly required is that the employee be in a worse position in his or her employment after the employer's action than before it, and that the deterioration was caused by that action, and that the action was intentional in the sense that the employer intended the deterioration to occur. An 'injury' relevantly involved the "deprivation of one of the more immediate practical incidents of employment, such as loss of pay or reduction in rank".

[74]	The Respondent argues that even if directing an employee to attend an IME is found to be an adverse action, that direction was authorised under s 175 of the PS Act and is therefore not an adverse action in accordance with s 282(6) of the IR Act. Similarly, the Respondent argues that even if medically retiring an employee is found to be an adverse action, that direction was authorised under s 178 of the PS Act. On that basis, the Respondent argues that the Fourth Cause of Action and Fifth Cause of Action cannot succeed.

The Applicant's response

[75]	The Applicant argues:

•	the adverse action is pleaded at [21] and [21A] of the ASOFC;

•	the adverse action 'injured' Mrs Byrne in her employment under s 282(1)(b) of the IR Act; and

•	the PS Act did not authorise the taking of the adverse action.

[76]	The Applicant contends that "injury" is "a broad additional category which covers not  only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question." The Applicant submits that "injury" has been held to include issuing a show cause letter that could result in the employee losing their position if their response was not deemed adequate. The Applicant argues there is an analogy to be drawn between such a decision and the circumstances in this matter.

[77]	The Applicant disagrees with the Respondent's argument that any action taken was authorised under a law on the basis that an action authorised under a law, but taken for a purpose proscribed by s 286(1) of the IR Act is not authorised for the purpose of s 282(6) of the IR Act. The Applicant refers to the decision in Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service in which Black IC stated:

In these proceedings, the factual contest requires a determination to be made about whether disciplinary action may have been taken, not because of misconduct, but because Ms Mattner exercised a workplace right or participated in an industrial activity. Section 282(6) could not operate to prevent an inquiry into the legitimacy of the grounds or reasons for taking adverse action.

[78]	The Applicant contends the reason for her being directed to attend an IME and then medically retired needs to be the subject of evidence and should not be determined summarily.

Consideration

[79]	I am not convinced by the Respondent's argument that direction to attend an IME or the decision to medically retire the Applicant does not constitute adverse action. Further, I am not convinced that such action was authorised. I agree with the Applicant that the reasons behind why the Applicant was directed to attend two IMEs and was then medically retired may need to be the subject of evidence. For those reasons, I am not convinced that the Fourth and Fifth Causes of Action will not succeed on any view of the facts or law and therefore will not dismiss under s 451(2) nor s 541(b)(ii) of the IR Act. 

Conclusion

[80]	The Respondent sought to dismiss four of the Applicant's five causes of action as stipulated in her ASOFC. I have carefully considered the submissions with respect to each cause of action to determine if any should be dismissed pursuant to either s 451(2) or s 541(b)(ii) of the IR Act.

[81]	For the reasons outlined above, the First Cause of Action is dismissed as not being desirable in the public interest pursuant to s 541(b)(ii) of the IR Act. 

[82]	Although the Third Cause of Action is also deficient, I have determined that those deficiencies can be largely overcome by the striking out of [14] and Annexure A of the ASOFC which failed to identify workplace rights with sufficient particularity and that further proceeding on that basis would not be desirable in the public interest. Those parts of the ASOFC would unfairly prejudice the Respondent and are to be struck out under s 541(b)(ii) of the IR Act as not being necessary or desirable in the public interest or alternatively under s 541(a) of the IR Act because I have determined it is just to do so. The remaining deficiencies in the Third Cause of Action are to be rectified by providing better clarity in [13]a), [13]b) and [11] of the ASOFC. 

[83]	The Fourth and Fifth Causes of Action will similarly be affected by the striking out of [14] and Annexure A. However, will otherwise proceed as is because I am not convinced by the Respondent's argument that those Causes of Action cannot succeed on any view of the facts or law and consider it would be unfairly prejudicial to the Applicant if they were dismissed without a proper hearing. 

[84]	I order accordingly. 

Orders:

1.	That the First Cause of Action as defined in this Decision is dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).

2.	That the Applicant is to file a Further Amended Statement of Facts and Contentions with the Industrial Registry that contains the following amendments:

a.	the Applicant is to strike out [5], [6], [14] and Annexure A of the Amended Statement of Facts and Contentions; 

b.	the Applicant is to amend [13]a) of the Amended Statement of Facts and Contentions to include specific reference to the paragraph that contains the complaint/s referred to therein; 

c.	the Applicant is to include the wording "further, or in the alternative" between paragraphs [13]a) and [13]b) of the Amended Statement of Facts and Contentions; 

d.	the Applicant is to amend [11] of the Amended Statement of Facts and Contentions to include reference to the natural person/s subject of the allegations; and

e.	the Applicant is to amend [15] of the Amended Statement of Facts and Contentions to include particulars of the date, time and recipient of the complaints referred to therein. 

3.	That the Further Amended Statement of Facts and Contentions is to be filed with the Industrial Registry within 21 days from the release of this Decision. 

4.	That the Respondent's Application in existing proceedings filed 21 May 2021 is otherwise dismissed. 

5.	A decision on costs is reserved.