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Chen v Gold Coast Hospital and Health Service[2024] ICQ 1

Chen v Gold Coast Hospital and Health Service[2024] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Chen v Gold Coast Hospital and Health Service [2024] ICQ 1

PARTIES:

VICTOR CHEN

(Appellant)

v

GOLD COAST HOSPITAL AND HEALTH SERVICE

(Respondent)

CASE NO.:

C/2023/2

PROCEEDING:

Appeal

DELIVERED ON:

3 January 2024

HEARING DATE:

3 May 2023

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – where public service appeals, general protections and dismissal applications filed in the Queensland Industrial Relations Commission ('the QIRC') – where the QIRC dismissed several interlocutory applications filed by the Appellant: application for recusal of Respondent's legal representatives, application for discovery and application to join matters PSA/2020/449, GP/2020/27 and TD/2021/20  – where appellant appealed to the Industrial Court of Queensland –  whether there was error in the QIRC's finding – appeal dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 316, s 451, s 564

CASES:

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Chen v Gold Coast Hospital and Health Service [2021] QIRC 235

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

Chen v Gold Coast Hospital and Health Service (No 2) [2023] QIRC 002

Chen v Gold Coast Hospital and Health Service (No 3) [2023] QIRC 012

Lam v Gold Coast Hospital and Health Service [2021] ICQ 10

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

Porter v Dyer [2022] FCAFC 116

APPEARANCES:

Dr V. Chen, the Appellant for himself.

Mr P. Zielinski Counsel instructed by MinterEllison, for the Respondent.

Reasons for Decision

  1. [1]
    Dr Victor Chen appeals several decisions[1] of the Queensland Industrial Relations Commission ('QIRC') dismissing the following interlocutory applications:
  1. (a)
    an application for discovery;[2]
  1. (b)
    an application to join matters PSA/2020/449, GP/2020/27 and TD/2021/20;[3]
  1. (c)
    an application for an order that MinterEllison recuse themselves from acting for the Respondent in all of Dr Chen's "further Commission processes".[4]
  1. [2]
    Dr Chen also appeals a directions order with respect to costs.
  1. [3]
    The interlocutory applications were filed by Dr Chen in the context of proceedings TD/2021/20 and GP/2020/27. The QIRC has previously ordered that the proceedings in matters TD/2021/20 and GP/2020/27 be joined.[5]
  1. [4]
    Proceedings TD/2021/20 relates to an application for reinstatement arising from the termination of Dr Chen's casual employment with the Gold Coast Hospital and Health Service ('GCHHS') as a visiting medical officer. Dr Chen is a cardiologist and he worked within the Cardiology Unit at the GCHHS. Proceedings GP/2020/27 relates to an application for general protections made by Dr Chen alleging that adverse action was taken against him by the GCHHS during the course of his employment.
  1. [5]
    In addition to the joined proceedings[6], Dr Chen has previously filed proceedings commencing a public service appeal ('proceedings PSA/2020/449'). Relevantly, his Honour O'Connor VP, issued an order on 13 May 2022[7], adjourning proceedings PSA/2020/449 to the Industrial Registry pending the hearing and determination of TD/2021/20 and GP/2020/27. 

Grounds of appeal

  1. [6]
    Dr Chen lists the following grounds of appeal:
  1. The learned Commissioner erred in law and/or committed jurisdictional error in refusing an Application to order MinterEllison to recuse from matters of Chen v Gold Coast Hospital and Health Service where it is uncontroversial between parties Ms Nikki A-Khavari was already working with MinterEllison and Gold Coast Hospital and Health Service August 2020 when she obtained the Applicant's information and confidential legal memorandum. The Commission should have found that it is well accepted that Ms A-Khavari's knowledge and access to these confidential memoranda would have naturally spread to MinterEllison Brisbane and that this breach of the confidentiality and failure to observe a duty to disclose a severe manifest conflict of interest is now egregiously corrosive to appearances of any just ongoing legal process where ongoing involvement by MinterEllison.

('Ground one')

  1. The learned Commissioner erred in law and/or committed jurisdictional error in refusing the Application for further and better discovery from the Respondent at [14-19, and 23]. There is no rational jurisprudence the Commissioner's belief that "any and all document constituting, evidencing, recording or referring to... decision[s] to appoint or re-appoint Dr Vo on each and every occasion... [including now 2023 onwards]" is not subsumed under Rule 46 of the Industrial Relations (Tribunal) Rules 2011 where "a party must disclose any document that—is directly relevant to the proceeding or a matter in issue.. where the Respondent agreed direct relevance and provided discovery to mid 2022 but refusal of further and better discovery about employment details of temporary employees such as Dr Vo in 2023 is not objectively reasonable consistent jurisprudence when the Respondent already agreed these facts were "directly relevant" hitherto providing discovery to mid 2022.

('Ground two')

  1. The learned Commissioner miscarried the exercise of the Commission's discretion in overlooking the prejudice caused by multiple staged processes and delays and it is respectfully appealed to the Commission to consistently observe wetl accepted joinder principles and where it is manifestly absurd, unreasonable, unjust and prejudicial via delays to separate Commission resolution of PSA/2020/449 from GP12020/27, TD/2021/20 where all matters are inextricably linked.

('Ground three')

  1. The learned Commissioner erred in law and/or committed jurisdictional error in issuing Directions orders 3 January 2023 on the issue of costs sought by the Respondent when said orders are not objectively reasonable, prejudicial when issued now and to be decided prior to determination of substantive matters of unfair dismissal, adverse action; and when processes of examining and determination costs will not examine relevant factual matters including allegations Respondent's lawyers breached Applicant's confidentiality of privileged legal advice via Ms A-Khavari when she was already instructed by MinterEllison and GCHHS.

('Ground four')

  1. [7]
    Dr Chen seeks the following relief:[8]
  1. The decision in Chen v Gold Coast Hospital and Health Service [2023] QIRC 002 be set aside.
  1. That MinterEllison be ordered to recuse from all matters of Chen v Gold Coast Hospital and Health Service.
  1. That further discovery be ordered for the Respondent to make disclosure directly relevant documents pertaining to matters in issue in proceedings: "any and all documents constituting, evidencing, recording or referring to... decision[s] to appoint or re-appoint Dr Vo on each and every occasion. where it is a matter in issue Dr Vo was and is employed as a temporary employee since 2020 undertaking wholly or substantially the same work after unfair dismissal and proscribed adverse action acted against the Applicant. 4. That joinder of matters GP/202027, TD/2021/20, PSA/2020/449 be ordered as all proceedings are inextricably linked in relation to unfair dismissal, reinstatement sought by the Applicant to his prior status quo regular systematic pattern of employment since 2014.
  1. [8]
    Appeal grounds one and three have been commenced out of time. Consequently, I will consider grounds one and three and whether an extension of time to file the application with respect to those grounds should be granted before I consider the remaining grounds of appeal.

Appeal grounds one and three – out of time

  1. [9]
    The orders which are the subject of appeal grounds one and three were issued by the QIRC on 1 December 2022.[9] The application to appeal was filed on 4 January 2023 which falls outside the 21 day appeal period.[10]
  1. [10]
    In order to be granted an extension of time to file the appeal, an applicant must ordinarily[11]:
  1. (a)
    demonstrate that the justice of the case requires the indulgence sought;
  1. (b)
    demonstrate that the case sought to be appealed has prospects of success; and
  1. (c)
    provide an explanation for the delay between the expiry of the time period and the time at which the application was filed.
  1. [11]
    The GCHHS submits that an extension of time should not be granted as both appeal grounds one and three have no reasonable prospects of success.
  1. [12]
    Before addressing the merits of appeal grounds one and three, consideration will be given to the extent of the delay and the explanation for the delay provided by Dr Chen. 
  1. [13]
    The time for filing the application to appeal with respect to appeal grounds one and three expired on 22 December 2022.[12] The application to appeal was filed on 4 January 2023. Accordingly, the delay in filing was not significant and the GCHHS did not raise any matters of prejudice arising because of the delay in filing.
  1. [14]
    With respect to the explanation for the delay, Dr Chen provided a brief explanation during the course of the hearing of the appeal as follows:[13]

Yes. I - I believe the substantives are important. They would outweigh any mild out of time considerations, given that it was abutting a- a holiday period. I - I happened to be on holiday with my kids, actually, when I attended that telephone mention. I was in Sydney, in a hotel room. They - they kind of wandered off, and I stayed in the hotel room to - to - to do this mention, but I also note, and I put in my responses that the - that the Commission expressly noted that their decisions were handed down - delivered on the 3rd of January, delivered on the 18th of 5 January. So - - -

…

Fourth of January. So there’s a 21-day limit - if the 21 days were - 22, maybe, that’s close enough to Christmas. Maybe everyone has a holiday, but I - I don’t - I object strongly to a technicality being invoked here again. There are not irrelevant, trivial, and it - it really makes a mockery of the whole jurisprudent process, especially that we can’t assess the contentions that they’re fully staffed while at the same time there’s obvious discovery that it’s been temporary, temporary, temporary, temporary - and I believe temporary, Dr Vo, into 2023.

…

  1. [15]
    Relevantly, Dr Chen does not nominate whether the failure to file the application to appeal out of time was because of an error on his behalf in reckoning the time to appeal or because of his ignorance of the requirements of the relevant provisions of the Industrial Relations Act 2016 (Qld) ('IR Act') or for some other reason.[14] The thrust of his submission is to the effect that he was on holidays at the time the decision was issued and that the expiration of the appeal period was close to Christmas. Such a submission does not amount to an adequate explanation for the delay.
  1. [16]
    The remaining issue to be considered with respect to whether an extension of time should be granted is the prospects of success of grounds one and three.

Ground one – recusal

  1. [17]
    Appeal ground one relates to Dr Chen's contention that the legal representatives for the Respondent, MinterEllison, be ordered to recuse themselves for acting "for reasons inter alia breach of Applicant's confidentiality".
  1. [18]
    Dr Chen's position appears to arise from a contention that the knowledge of confidential information held in the mind of his former barrister, Ms A-Khavari, would have "travelled" to MinterEllison. Dr Chen alleges that such a transfer of confidential information occurred because Ms A-Khavari had been separately retained by MinterEllison in an unrelated matter.
  1. [19]
    Relevantly, on the material, it appears that Ms A-Khavari had previously been briefed to appear for the GCHHS in the matter of Lam v Gold Coast Hospital and Health Service.[15] That matter was unrelated to Dr Chen's matter. At the time Ms A-Khavari was briefed by Dr Chen's then solicitor, K&L Gates, in respect of Dr Chen's matter, the matter of Lam had been heard and was adjourned awaiting a decision.[16]
  1. [20]
    Below, Dr Chen made the following submissions:[17]

'c… I will outline a strong prima facie case clear, obvious, serious breach of my confidential strategic legal advice when counsel Ms Nikki A-Khavari was engaged by K&L Gates on 26 August 2020 to 3 September 2020 and then advised me to not file Commission public service appeals against GCHHS administrative decisions. When advising me, Ms a-Khavari was already engaged by MinterEllison and GCHHS for a disciplinary and dismissal appeal hearing before Commission President Davis 24 august 2020. Ms A-Khavari had full knowledge of my details and a copy of a detailed memorandum of legal advice from Mr Charles Massy where her knowledge and this confidential document would normally reasonably have been known to have travelled to MinterEllison whilst she was engaged by their Brisbane lawyers for GCHHS disciplinary and dismissal hearings before the Commission around the same time.'

  1. [21]
    It is apparent from this submission, that Dr Chen alleges that his confidential information, in the form of legal advice, was known to Ms A-Khavari when she was briefed in his matter and that information was relayed by Ms A-Khavari to MinterEllison. Dr Chen did not adduce any evidence in the hearing before the QIRC to support such a serious allegation against a legal practitioner.
  1. [22]
    The QIRC dismissed the application on the following basis:[18]

I don’t intend – I think that’s a matter for yourself and the other party. I don’t intend to get into those matters today. Having heard what everyone has got to say, I’m not going to make an order that MinterEllison recuse themselves. I don’t think I have the capacity to, and I think that in circumstances where you’ve got concerns about professionalism or conduct, and you’ve indicated that you intend to take those up through the proper avenues, you’re free to do that, but I can’t see on the arguments that’ve made or the material before me that I should be – or even that I can request that the respondent – well, request that the respondent’s legal representatives recuse themselves or dictate to the respondent who their legal representatives should be. So I’m not going to make that order. I understand that you did say in some of your – I don’t know if it was in your correspondence or written submissions – that you’ve got concerns about confidence in the matter in the event that MinterEllison remain the legal representatives, and I think that’ll be a matter for you to consider going forward. So that’s my decision in terms of order number 3. So we then move on - - -

  1. [23]
    Dr Chen submits that the QIRC erred on the following basis:[19]

The appellant now pleads the Commission Decision 3 was erroneous for well accepted legal principles that are additionally contrary to contentions MinterEllison’s lawyers put on record at Mention 1 December 2022, and that the “duty of confidentiality is a well-established rule in… Australia”, “a court will restrain a lawyer from continuing to act for a party to litigation… a similar order will be made unless a court is satisfied that there is ‘no risk of disclosure” where:

  1. a.
    “a ‘reasonable observer’, informed of the facts, might reasonably anticipate a danger of misuse of confidential information of a client (the ‘reasonable observer’ requirement is a means of factoring in the public interest and safeguarding the appearance of justice)”; and
  1. b.
    “there is a ‘real and sensible’ possibility that the interest of the lawyer in advancing the case in litigation… might conflict with the lawyer’s duty to keep that information confidential and to refrain from using it to the detriment of the client”

(citations omitted).

  1. [24]
    Whilst Dr Chen did not raise it on appeal, counsel for the GCHHS properly submitted that the Commissioner below had been misled when it was submitted to her on behalf of the GCHHS, and accepted, that she did not have the power to issue the orders.
  1. [25]
    Relevantly, s 539(b)(ii) of the IR Act provides a specific power that, inter alia, the QIRC may direct, for proceedings, "by whom the parties may be represented".
  1. [26]
    Accordingly, the Commissioner's findings that she did not have a power to issue the order was an error.
  1. [27]
    Accordingly, consideration must be had to determine whether the error was material to the outcome. The Commissioner's reasons for the decision identify that, she also determined that Dr Chen did not establish on the material before her, a basis for the relief that he was seeking.
  1. [28]
    The relevant factual enquiry is focussed on determining if there is a real and sensible possibility of the misuse of confidential information.[20]
  1. [29]
    The test for determining whether to restrain a legal practitioner from acting on the basis of the possible misuse of confidential information, has been applied[21] by posing, and considering the response to, the following series of six questions:
  1. (a)
    what is the relevant information? ('question one');
  1. (b)
    is that information confidential? ('question two');
  1. (c)
    does the legal practitioner have possession of that information? ('question three');
  1. (d)
    is the legal practitioner proposing to set "against the former client in the requisite sense?" ('question four');
  1. (e)
    is there a real risk that the confidential information will be relevant? ('question five'); and
  1. (f)
    is there no real risk of misuse of confidential information? ('question six').
  1. [30]
    The onus rests with Dr Chen to establish a factual basis for the relief sought.
  1. [31]
    Relevantly, given that the relief sought by Dr Chen relates to GCHHC's solicitors, MinterEllison, the enquiry to be made must relate to MinterEllison's conduct and alleged possession of confidential information.
  1. [32]
    Relevantly, Minter Ellison has never acted for Dr Chen.
  1. [33]
    With respect to question one and two, the information identified by Dr Chen relates to the particular issues arising in the course of his employment matters. Ms A-Khavari was briefed by K&L Gates and provided advice to Dr Chen. Other than a reference to a written advice, Dr Chen has not particularised in any further detail the relevant information that he asserts is confidential. On the material before the QIRC, Dr Chen did not adduce any evidence of the details of the information in order to identify that information with precision nor did he provide a basis to assert that the information was confidential.
  1. [34]
    With respect to question three, there is no evidence on the record that MinterEllison has possession of that information.
  1. [35]
    Question four requires consideration as to whether the legal practitioner proposes to act against the former client in the requisite sense.
  1. [36]
    Relevantly, with respect to question four, Dr Chen is not a former client of MinterEllison.
  1. [37]
    With respect to question five, Dr Chen has not established on the material that there is a real risk that the confidential information is relevant to the proceedings or that there is a real risk of the misuse of the confidential information.
  1. [38]
    Accordingly, on the material, there is no basis for the orders sought by Dr Chen restraining MinterEllison from acting for the GCHHS in relation to his matters.
  1. [39]
    This conclusion is consistent with the Commissioner's decision below.
  1. [40]
    Consequently, appeal ground one has poor prospects of success.

Ground three – joinder

  1. [41]
    Dr Chen appeals the decision dismissing his application to join his public service appeal, PSA/2020/449, to proceedings TD/2021/20 and GP/2020/27.
  1. [42]
    The Commission's reasons for the dismissal were as follows:[22]

All right. Thank you. I had given some thought to the application for joinder before this morning and nothing that I have heard this morning or in the submissions – in the written submissions serves to change that. I’m not going to join public service appeal 2020/449 to the other two matters. One of the reasons is that there is an order of the Industrial Court of Queensland by Vice President O'Connor that the matter be adjourned to the registry pending the outcome of the other two matters. And I – that as far as I’m aware – well, it’s been confirmed this morning, that order wasn’t appealed at the time and I understand that some of the facts behind – some of the factual – you know, a lot of the factual matters run across the three matters but, effectively, the questions that are being asked in the general protections and unfair dismissal are a particular set of questions and the questions to be answered in the public service appeal are different.

Also, the fact that we have legal representatives for the respondent and Dr Chen has indicated previously that he’s intending to seek legal representation for this matter, that’s another issue in terms of practicalities around the public service appeal. And the utility in terms of joining the three; in terms of the time being of the essence, if anything, I think that joining the PSA matter to the other two matters may take – may mean that it takes longer to hear the matters and to decide them because there are different tests to be applied. Also, this matter was meant to be being heard very shortly and it’s certainly not, respectfully, an issue of the Commission’s preference. My preference would have been to have had the hearing and be on the way to deciding the matters. So if time is of the essence, then continued interlocutory applications will just naturally – and it’s not a criticism – but they will naturally push back the capacity to hear the matter and we’ll get to setting down dates shortly. But for those reasons I’m not joining the PSA matter. It remains adjourned as per the order of the court in that matter of Chen v Queensland 2022 ICQ 15.

  1. [43]
    Dr Chen submits that the QIRC erred as follows:[23]

This appeal pleads the Commission erred not taking into account consideration the jurisdiction where amendments to the Public Service Act and the Industrial Relations Act 26 September 2020 were reflective of the policy objectives of maximising employment security and establishing permanent employment as the default basis for public sector employment, where reinstatement is the primary remedy by statute unless “impracticable”, remedy sought was reinstatement to the applicant’s “pattern of employment established since 2014” that would have also substantively resolved all matters in PSA/2020/449 in accordance stipulations Tribunal rules and statute with factual linkages between unfair dismissal, general protections, preservation of the applicant’s right to convert to permanent employment.

It is further appealed the Commission disregarded the main considerations of this Court’s previously handed down decision described in this Outline of Submissions [7–11], material consideration the respondent seeks to avoid Commission or Court findings of a second instance of repeat unreasonable and unfair conduct towards observance of the applicant’s right to convert to tenure, and the Commission disregarded material consideration the respondent has repeated represented to the Commission that more disputes will be raised in further processes whereas the “efficient course consistent with the requirements of fairness should be consolidation”.

  1. [44]
    Relevantly, Dr Chen's submissions do not meaningfully address the orders previously issued by the Court that proceedings PSA/2020/449 be adjourned to the Industrial Registry pending the hearing and determination in TD/2021/20 and GP/2020/27. That order was issued by the Court following the hearing of an earlier appeal filed by Dr Chen. Dr Chen did not appeal that order.
  1. [45]
    The QIRC was correct to consider that the order of the Court was a relevant consideration in the exercise of the discretion not to issue the orders sought by Dr Chen.
  1. [46]
    The other matters raised by Dr Chen do not disturb the fact that the Court has issued an order and that order remains operational.
  1. [47]
    The remaining matters raised by Dr Chen are of little relevance whilst the order of the Court continues to operate. For these reasons, I consider that Dr Chen has poor prospects of success with respect to appeal ground three.
  1. [48]
    Whilst the delay in filing the application to appeal was not excessive, Dr Chen did not provide a sufficient reason to explain the delay. Further, the merits of the appeal with respect to appeal grounds one and three are poor. Accordingly, I do not grant an extension of time to file the appeal with respect to appeal grounds one and three.

Ground two – discovery

  1. [49]
    Appeal ground two concerns the Commission's decision dismissing Dr Chen's application for further and better discovery. Whilst Dr Chen's application for discovery related to several categories of document, the terms of ground two are limited to the category of document with respect to the current employment details and future employment intentions regarding Dr Vo.
  1. [50]
    The Commissioner's reasonings for this decision is set out as follows:[24]

I do not find the current employment details, or future employment intentions for 2023 regarding Dr Vo,  to be directly relevant to the matters in issue between the parties in the unfair dismissal and general protections matters which pertain to circumstances which occurred some years earlier.  

  1. [51]
    Before the QIRC, Dr Chen had contended that the following two categories of discovery with respect to Dr Vo were relevant:[25]
  1. a.
    Further and better discovery around current employment details (whether temporary/permanent) and intent in 2023 around Dr Tony Vo, particularly whether Dr Vo is or will remain a temporary or become a permanent employee interventional cardiology SMO, what quanta FTEs while parties are awaiting Commission processes. This is directly relevant evidence to enable efficient rational planning ongoing Commission steps, such as litigation steps around practicableness of my reinstatement and I respectfully submit no rational planning of ongoing Commission steps is possible in absence of further and better discovery around these factual matters;
  1. …
  1. c.
    iii Further and better discovery from the respondent that 1 of 6 current interventional cardiologists, Dr Vo is currently a temporary fixed-term part-time SMO and further and better discovery whether Dr Vo's uncontroversially known ongoing operationally required role will terminate at a fixed term contract expiry date or whether GCHHS will act to extend the temporary contract or convert Dr Vo to permanent employment prior to completion of current Commission processes and decisions.
  1. [52]
    The QIRC correctly had regard to the principles to be applied in an application for discovery and applied the test of relevance.
  1. [53]
    On appeal, Dr Chen challenges the finding of lack of relevance.
  1. [54]
    There are several difficulties with Dr Chen's position. Firstly, Dr Chen contends that he was unfairly dismissed from his employment and filed an application for reinstatement in 2021. Similarly, Dr Chen's general protection application contending that adverse action was taken against him was also filed in 2021. Consequently, it is incumbent on Dr Chen to establish the relevance of these documents which post date the filing of his application.
  1. [55]
    Dr Chen did not establish that the continuing or potentially continuing employment of Dr Vo in 2022 and 2023 was relevant to the determination as to whether the dismissal of Dr Chen in 2021 was unfair.[26]
  1. [56]
    Similarly, Dr Chen did not establish that the documents about any intention to make Dr Vo a permanent employee of the Respondent some time in 2023 is relevant to the reinstatement application.
  1. [57]
    Dr Chen has established no error with respect to the decision.
  1. [58]
    Secondly, at the hearing of the appeal, Dr Chen sought to raise matters that were not included in his application to appeal. Relevantly, Dr Chen filed amended submissions identifying that he sought discovery with respect to "[MANAGERIAL RESPONSES] SAC 1 investigation in 2021".
  1. [59]
    This category of document differed to that sought by Dr Chen in his application before the QIRC. The category of discovery sought by Dr Chen and considered below was as follows:

Further and better discovery evidence factual circumstances around my unfair dismissal May or June 2021 when severe understaffing in a public hospital life preserving service after April 2021 (interventional cardiologist numbers at GCHHS reduced from prior status quo since 2014 of 7 to 5 interventionalist), knowledge of facts of understaffing whilst awaiting Commission processes was given as evidence to external investigators for Severity Assessment Code 1 ("SAC1" patient incident reviews.

…

  1. [60]
    It is apparent that the category of discovery sought by Dr Chen in the QIRC did not include managerial responses to the SAC 1 investigation. This was confirmed during the course of the appeal hearing when the following exchange occurred:[27]

…

HER HONOUR: Well, was it the basis of your application? Did you include those words in your application?

APPELLANT: That the SAC1 - - -

HER HONOUR: “The managerial responses to the SAC1”.

APPELLANT: My application - so on the wording:

Better and further discovery evidence, factual circumstances around my unfair dismissal when severe understaffing after April 2021, Gold Coast Hospital and Health Service reduced the prior status quo seven to five interventionalists. Knowledge of facts of understaffing given as evidence.

So there was no express discussion - - -

HER HONOUR: All right.

APPELLANT: - - - that the report was to be provided and there - there was no request for the report to be provided but obviously relevant factual circumstances to assess claims that I - my claim that I was unfairly dismissed because there was an ongoing operational need - there’s no savings of money to roster five and work them harder, more frequently, then to roster six or seven. There’s - there’s no, you know, there’s no logical rational inference that - and that the managerial response was to hire Dr Vo then. So - yes - those - those details could have been discussed.

…

  1. [61]
    Dr Chen's application before the QIRC did not articulate a category of document which included "Managerial responses to the SAC 1". The QIRC can not be criticised for failing to address this category of document in circumstances where Dr Chen has made a broad request for evidence regarding the factual circumstances around his unfair dismissal and the alleged severe understaffing after April 2021. I am satisfied that the discovery Dr Chen now seeks was not before the QIRC in the terms he now seeks to press.
  1. [62]
    Given that the QIRC was not asked to rule on the documents in the terms Dr Chen now articulates, it cannot be said to have committed an error of law or to have exceeded its jurisdiction.[28] Consequently, ground two of the appeal has not established any appealable error.

Ground four

  1. [63]
    Ground four contends that the directions order issued by the QIRC on 3 January 2023 was an error in law or jurisdiction because the orders are not objectively reasonable, and prejudicial if costs were to be determined prior to the substantive matter in the unfair dismissal proceedings and adverse action proceedings.
  1. [64]
    The QIRC's reasons with respect to how it proposed to deal with the Respondent's request for costs were as follows:[29]

I understand that the Respondent is seeking costs with regard to the aspects of the application in existing proceedings not related to the discovery matter. That is, the request for joinder and the order for recusal.  I understand that I initially suggested that these reasons would be delivered ex tempore and that I would hear the parties on costs at that hearing. However, given that I am writing these reasons on the final working day of the year, I determined to spare the parties the requirement to attend the Commission by releasing the outcome as a written decision.

I will issue a Directions Order seeking written submissions with regard to costs of the application in existing proceedings.

  1. [65]
    The QIRC then made the following order:[30]
  1. I will hear the parties as to costs of the aspects of the application in existing proceedings relating to a request for joinder of PSA/2022/449 to the current matters and the request for an order for recusal.
  1. [66]
    Relevantly, the QIRC having received a request from the Respondent for its costs indicated that it would hear the parties on the application and issued a directions order giving effect to that.
  1. [67]
    Dr Chen does not identify the error in law or excess or want of jurisdiction in the decision. The Court has general powers[31] to, inter alia, give directions about the hearing of the matter. The indication given by the Commissioner that she intended to issue directions to hear from the parties with respect to costs accords with the exercise of the general power contained in s 451(2)(a) of the IR Act.
  1. [68]
    Further, by issuing the directions order the Commission indicated that she would give each of the parties an opportunity to be heard and make submissions with respect to the Respondent's application for costs. Such an order was proper and orthodox.
  1. [69]
    Dr Chen has failed to establish any appealable error with respect to appeal ground four.

Conclusion

  1. [70]
    For the reasons set out above, I have dismissed the appeal. Accordingly, I make the following order:
  1. The appeal is dismissed.

Footnotes

[1] The reasons for the decision were published in Chen v Gold Coast Hospital and Health Service (No 2) [2023] QIRC 002 and Chen v Gold Coast Hospital and Health Service (No 3) [2023] QIRC 012.

[2] Chen v Gold Coast Hospital and Health Service (No 2) [2023] QIRC 002.

[3] Chen v Gold Coast Hospital and Health Service (No 3)  [2023] QIRC 012.

[4] Ibid.

[5] Chen v Gold Coast Hospital and Health Service [2021] QIRC 235.

[6] TD/2021/20 and GP/2020/27.

[7] Chen v State of Queensland (Queensland Health) [2022] ICQ 15.

[8] As listed in the Appeal Notice.

[9] Chen v Gold Coast Hospital and Health Service (No 2) [2023] QIRC 002 at [3].

[10] Industrial Relations Act 2016 (Qld) s 564(3)(a).

[11] A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16.

[12] On the basis that the decision was made on 1 December 2022.

[13] T1 – 50, l 47 – T 1 – 51, l 6; T1 – 51, ll 21 – 28.

[14] Industrial Relations Act 2016 (Qld), s 564(3).

[15] [2021] ICQ 10 ('Lam').

[16] Respondent's submissions at [11]; Appeal Book: 1-17.

[17] Respondents' submissions at [10]; Appeal Book: 1-17.

[18] Transcript in matters TD/2021/20 and GP/2020/27 dated 1 December 2022: T 1 – 7, ll 9 – 23.

[19] Appellant's Submissions dated 6 March 2023 at [58]. 

[20] Porter v Dyer [2022] FCAFC 116 at [74].

[21] Ibid.

[22] Transcript in matters TD/2021/20 and GP/2020/27 dated 1 December 2022: T 1 – 10, ll 1 – 27.

[23] Appellant's Submissions dated 6 March 2023 at [36] and [37]. 

[24] Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 002 at [23].

[25] Appeal Book: 2-4.

[26] Industrial Relations Act 2016 (Qld) s 316.

[27] T1 – 49, ll 8 – 34.

[28] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025.

[29] Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 002, [28]-[29].

[30] Ibid.

[31] Industrial Relations Act 2016 (Qld) s 451.

Close

Editorial Notes

  • Published Case Name:

    Chen v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    Chen v Gold Coast Hospital and Health Service

  • MNC:

    [2024] ICQ 1

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    03 Jan 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QIRC 203 Jan 2023Application for further and better discovery dismissed: Industrial Commissioner Pidgeon.
Primary Judgment[2023] QIRC 1218 Jan 2023Application for joinder of public service appeal and for recusal of solicitors dismissed: Industrial Commissioner Pidgeon.
Primary Judgment[2024] ICQ 103 Jan 2024Appeal dismissed: Hartigan DP.
Notice of Appeal FiledFile Number: CA 837/2423 Jan 2024Notice of appeal filed.
Appeal Determined (QCA)[2024] QCA 24126 Nov 2024Appeal dismissed (with costs on indemnity basis, excluding the costs of senior counsel, subject to parties being heard): Mullins P (Callaghan J agreeing), Bond JA dissenting in part.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
2 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Chen v Gold Coast Hospital and Health Service [2021] QIRC 235
2 citations
Jump To
Cite 1 - [2021] QIRC 235
Cite 2 - [2021] QIRC 235
Chen v Gold Coast Hospital and Health Service [2023] QIRC 2
7 citations
Jump To
Cite 1 - [2023] QIRC 2
Cite 2 - [2023] QIRC 2
Cite 3 - [2023] QIRC 2
Cite 4 - [2023] QIRC 2
Cite 5 - [2023] QIRC 2
Cite 6 - [2023] QIRC 2
Cite 7 - [2023] QIRC 2
Chen v Gold Coast Hospital and Health Service [2023] QIRC 12
3 citations
Jump To
Cite 1 - [2023] QIRC 12
Cite 2 - [2023] QIRC 12
Cite 3 - [2023] QIRC 12
Chen v State of Queensland (Queensland Health) [2022] ICQ 15
2 citations
Jump To
Cite 1 - [2022] ICQ 15
Cite 2 - [2022] ICQ 15
Lam v Gold Coast Hospital and Health Service [2021] ICQ 10
2 citations
Jump To
Cite 1 - [2021] ICQ 10
Cite 2 - [2021] ICQ 10
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Porter v Dyer [2022] FCAFC 116
2 citations
Jump To
Cite 1 - [2022] FCAFC 116
Cite 2 - [2022] FCAFC 116

Cases Citing

Case NameFull CitationFrequency
Chen v Gold Coast Hospital and Health Service [2024] QCA 2412 citations
Chen v Queensland Health [2024] QCA 421 citation
1

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