Perry v State of Queensland (Queensland Health)
[2024] ICQ 5
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- Unreported Judgment
- Perry v State of Queensland (Queensland Health)[2024] ICQ 5
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Perry v State of Queensland (Queensland Health)[2024] ICQ 5
Perry v State of Queensland (Queensland Health)[2024] ICQ 5
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Perry v State of Queensland (Queensland Health) [2024] ICQ 5 |
PARTIES: | SANDRA (ANDREA) PERRY (Appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (Respondent) |
CASE NO.: | C/2023/49 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 11 March 2024 |
HEARING DATE: | On the papers |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDER: | Pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding, to be represented by a lawyer. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION FOR LEAVE FOR RESPONDENT TO BE REPRESENTED BY A LAWYER – Appellant is a public service employee employed by the Respondent who is the subject of a disciplinary finding decision pursuant to the Public Sector Act 2022 – Appellant appealed to Queensland Industrial Relations Commission against the disciplinary finding decision – Commission confirmed the disciplinary finding decision – Appellant appealed to the Industrial Court of Queensland against the Commission decision – Respondent applied for leave, pursuant to s 530(1)(a) of the Industrial Relations Act 2016, to be represented by a lawyer in the appeal before the Court – whether leave should be given to the Respondent to be represented by a lawyer by reference to the considerations contained in s 530(4) of the Industrial Relations Act 2016 – leave granted as giving leave to the Respondent to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter |
LEGISLATION: | Industrial Relations Act 2016, s 529, s 530, s 530A, s 557, s 558, s 562C, s 565 and 567 Public Sector Act 2022, s 131 |
CASES: | Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Perry v State of Queensland (Queensland Health) [2023] QIRC 348 State of Queensland v Dodds [2021] ICQ 007 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 |
Reasons for Decision
- Introduction
- [1]Ms Sandra (Andrea) Perry is employed by the State of Queensland through Queensland Health ('the Department'). Ms Perry is employed in the position of Team Leader, Operational Services at the Gold Coast University Hospital which is operated by the Gold Coast Hospital and Health Service.
- [2]By letter dated 26 April 2023, Ms Perry was informed that two disciplinary allegations made against her were found to be substantiated ('the disciplinary finding decision'). The substantiated disciplinary allegations were:
Allegation one
That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you obtained a uniformed polo shirt designed for an Environmental Services Porterage employee and provided it to Tania Walker, a person who was not authorised to possess this apparel.
Allegation two
That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you failed to comply with a Public Health Directive, restricting personal visitations in Queensland Hospitals, by visiting a patient in Ward C at the Gold Coast University Hospital.[1]
- [3]The disciplinary finding decision was a decision that Ms Perry could appeal to the Queensland Industrial Relations Commission pursuant to ch 3, pt 10, div 2 of the Public Sector Act 2022.[2]
- [4]By notice of appeal filed on 10 May 2023, Ms Perry appealed against the disciplinary finding decision. By decision dated 1 December 2023, the Queensland Industrial Relations Commission, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 ('the IR Act') confirmed the disciplinary finding decision ('the Primary Decision').[3]
- [5]By application to appeal filed on 20 December 2023, Ms Perry appeals to this Court against the Primary Decision ('Ms Perry's Court appeal'). By directions order dated 19 January 2024, I ordered the parties to file and serve written submissions in respect of Ms Perry's Court appeal. Both parties have complied with those orders. Ms Perry's Court appeal will be heard on 11 April 2024.
- [6]By application in existing proceedings filed on 15 February 2024, the Department, pursuant to s 530(1)(a) of the IR Act, applies for leave to be represented by a lawyer, namely, counsel instructed by MinterEllison. The Department provided written submissions with its application. I directed Ms Perry to file written submissions in response. Ms Perry did so and she opposes such leave being given to the Department.
- [7]The present question I have to determine is whether or not I should give leave to the Department to be represented by a lawyer in Ms Perry's Court appeal.
- [8]For the reasons that follow, I will give leave to the Department to be represented by a lawyer in Ms Perry's Court appeal.
The relevant provisions of the Industrial Relations Act 2016
- [9]The combined effect of s 529(1)(a) and s 530(1)(a) of the IR Act is that a party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if, for proceedings before the Court:
- all parties consent; or
- the Court gives leave; or
- the proceedings are for the prosecution of an offence.
- [10]In considering whether or not to give leave for a lawyer to represent a party or person, the Court may give leave only if:
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;[4] or
- it would be unfair not to allow the party or person to be represented because the party or person is unable to represent their interests in the proceedings;[5] or
- it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.[6]
- [11]In the present case, in the absence of consent, for the Department to be represented by a lawyer, leave needs to be given to it pursuant to s 530(1)(a)(ii) of the IR Act.[7]
The parties' submissions
- [12]The Department, amongst other reasons, contends that the Court's discretion, to grant leave for the legal representation it seeks, is enlivened because of the application of s 530(4)(a) of the IR Act.
- [13]In its written submissions, the Department submitted that it being given such leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, and that the complexity in Ms Perry's Court appeal arises from the unclear nature of her grounds of appeal.
- [14]The Department submits that the basis for Ms Perry's appeal, as discerned from the document attached to her application to appeal, headed 'Outline of the Argument' (hereafter 'Ms Perry's outline') is difficult to follow. The Department further submits that it is difficult to identify, from Ms Perry's outline, any alleged errors of law or where the Commission is alleged to have acted in excess, or in want, of jurisdiction. Similarly, the Department submits that if Ms Perry is asserting that the Commission allegedly made errors of fact, the nature of those errors is not clear and it is not clear why leave should be granted, in the public interest, to appeal on that basis.
- [15]Upon my reading of Ms Perry's outline, there is substance to these submissions.
- [16]Ms Perry contends:
- the Primary Decision is '… unfair and unreasonable'; and
- the Industrial Commissioner, has '… not considered other Acts and statutory obligations of relevant duty holders to Queensland Health.'
- [17]Ms Perry relevantly submits that:
- her appeal is not complex, there are no unclear grounds, and the issues are narrow in context and are defined; and
- if the Department was given leave to be represented by counsel, that could compel her to engage private counsel which is unfair and unbalanced given the Department's vast resources.
- [18]By way of summary, Ms Perry submits:
- (15)In summary of key points - with respect:
- a.The matter in limited aspects is not entirely straightforward, but neither does it involve determining complex jurisdictional or technical matters to complicate. Para. # 4 and para. # 8 is the matter to resolve. The matter will resolve to QH procedures and PSC Directives regarding statutory duty-holder obligations that include the Appellant and Respondent.
- b.Regardless, representation by an in-house lawyer from Queensland Health would not likely result in a loss of efficiency, as competency will be available considering the ample size and human resources at the disposal of the Respondent (QH) and no unfairness attached to their in-house representation.
- c.The presence of private counsel is unlikely to expedite the handling of the Appeal. The issues have been clearly defined in the Appeal submissions, rooted in QH procedures and statutory holder obligations.
- d.Ms. Perry reasonably contends that IR Act (s) 530A applies to this Public Service Appeal and is relevant to her case. Granting leave for private counsel to represent the State would be unreasonable, as it carries considerable risks attached to intentional complexity than necessary to divert that matter to obscure and create unnecessary financial risk (para. #13).[8]
Leave should be granted to the Department to be represented by a lawyer
- [19]In State of Queensland (Queensland Health) v Hume,[9] I set out how, in my opinion, s 530(4) of the IR Act should be construed. I will not repeat here what I said in that case.
- [20]In my view, the Court's discretion to give leave to the Department to be represented by a lawyer (counsel instructed by MinterEllison) is enlivened having regard to s 530(4)(a) of the IR Act, and that discretion should be exercised in the Department's favour.
- [21]Pursuant to s 557(1) of the IR Act, Ms Perry can appeal, as of right, against the Primary Decision on the grounds of error of law or excess, or want, of jurisdiction. Pursuant to the combined effect of s 557(2) and s 565 of the IR Act, Ms Perry can appeal against the Primary Decision on grounds other than error of law or excess, or want, of jurisdiction, namely, errors of fact, only with the Court's leave but where leave must be given by the Court if it is satisfied it is in the public interest to do so.
- [22]Section 567(1) of the IR Act relevantly provides that an appeal to this Court is by way of re-hearing on the record. Section s 567(2) relevantly provides that the Court may hear evidence afresh or additional evidence if the Court considers it appropriate to effectively dispose of the appeal. On such an appeal, the powers of the Court, under s 558 of the IR Act, are exercisable only where an appellant can demonstrate that, having regard to all the evidence now before the Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[10]
- [23]The '…matter', for the purposes of s 530(4)(a) of the IR Act, is the basis upon which Ms Perry contends the Commission engaged in error that enlivens the Court's appellate powers. This matter is made complex for the reasons given by the Department in its submissions.
- [24]The complexity arises because Ms Perry's application to appeal does not clearly identify the basis upon which she contends the Court's appellate powers are enlivened. That is, Ms Perry has not, in her application to appeal and in her outline, been precise in identifying the alleged errors of law or alleged errors of jurisdiction in the Primary Decision. Similarly, if it is the case that Ms Perry is alleging errors of fact, then that is not clear from her application to appeal; and, if that is the case, Ms Perry does not make clear the basis upon which she contends that it is in the public interest that the Court allow her to appeal on the grounds of error of fact.
- [25]I understand Ms Perry's submission that, from her perspective, the central matters in her appeal are not complex and are clear. These are, as best as I understand it, that a material consideration ignored in the Primary Decision was the effect of the Work Health and Safety Act 2011, and that she was not trained properly in respect of staff visits.
- [26]However, having regard to Ms Perry's outline, the validity of the first of these contentions is not clear.
- [27]In my view, having the Department being represented by counsel will allow the appeal to be dealt with more efficiently. This is because of the complexity of Ms Perry's appeal brought about by the lack of precision as to why the decision is vitiated by any alleged error of law, fact or discretion. The assistance that would be given to the Court by counsel, in focusing on the precise issues that need to be considered as to whether or not the Court's appellate powers are enlivened, would enable Ms Perry's appeal to be dealt with more efficiently. For this reason, the Court's discretion for the Department to be given leave to be represented by a lawyer is enlivened.
- [28]Furthermore, that discretion, so enlivened, should be exercised in the Department's favour.
- [29]Ms Perry, at the present time, is representing herself. Ms Perry submits that if I grant leave to the Department to be represented by a lawyer, that could compel her to engage private counsel which may be seen to be unfair and unbalanced given the Department's resources. Such a matter is a relevant consideration as to whether or not I would exercise the Court's enlivened discretion in favour of the Department.
- [30]However, for the reasons I have given above about the efficiency that would be brought to bear to the hearing and determination of the appeal by the Department being represented by counsel, such efficiency outweighs the possibility that Ms Perry may decide to go to the expense of obtaining legal representation.
Conclusion
- [31]For the reasons given, I will give leave to the Department to be represented by a lawyer as sought by the Department, namely, counsel instructed by MinterEllison.
Order
- [32]I make the following order:
Pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding, to be represented by a lawyer.
Footnotes
[1] Perry v State of Queensland (Queensland Health) [2023] QIRC 348 ('the Primary Decision'), [5] and [9] (Industrial Commissioner McLennan).
[2] Public Sector Act 2022, s 131(1)(c).
[3] The Primary Decision, [94].
[4] Industrial Relations Act 2016, s 530(4)(a).
[5] Industrial Relations Act 2016, s 530(4)(b).
[6] Industrial Relations Act 2016, s 530(4)(c).
[7] State of Queensland v Dodds [2021] ICQ 007, [37] (Davis J, President).
[8] Section 530A of the Industrial Relations Act 2016 applies in relation to a proceeding for a public service appeal. However, Ms Perry's appeal to this Court is not a proceeding for a public service appeal. It is an appeal against a decision of the Commission. As a consequence, s 530A of the Industrial Relations Act 2016 has no application.
[9] [2022] ICQ 001, [33]-[44].
[10] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [23] (Gaudron, McHugh, Gummow and Hayne JJ).