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Royce v State of Queensland (Department of Justice and Attorney-General) QCA 90
SUPREME COURT OF QUEENSLAND
Royce v State of Queensland (Department of Justice and Attorney-General)  QCA 90
STATE OF QUEENSLAND (DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL)
Appeal No 14057 of 2019
QIRC No 27 of 2019
Court of Appeal
General Civil Appeal
Industrial Court of Queensland –  ICQ 19 (Martin J)
5 May 2021
22 April 2021
Sofronoff P and Mullins JA and Ryan J
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO SUPREME COURT – PROCEDURE AND OTHER MATTERS RELATING TO APPEALS – where the appellant was dismissed from his employment – where he applied for reinstatement to the Industrial Relations Commission, arguing that his dismissal was unfair – where the Commission dismissed his application – where the appellant appealed to the Industrial Court of Queensland – where the Industrial Court dismissed appellant’s appeal on the basis that no errors of law had been demonstrated; nor had the appellant sought leave to raise errors of fact – where the appellant appealed to this Court – whether error of law on the part of the Industrial Court established
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO SUPREME COURT – PROCEDURE AND OTHER MATTERS RELATING TO APPEALS – where the applicant required leave to appeal to the Industrial Court on the ground of error of fact – where Industrial Court considered that no application for leave had been made – where the appellant contended that he had so applied – whether the appellant applied for leave to appeal
Dispute Resolution Centres Act 1990 (Qld), s 26, s 35, s 36, s 37
Industrial Relations Act 2016 (Qld), s 554, s 557, s 565
Industrial Relations (Tribunals) Rules 2011 (Qld) r 139, r 140
The appellant appeared on his own behalf
C J Murdoch QC, with A C Freeman, for the respondent
The appellant appeared on his own behalf
GR Cooper, Crown Solicitor for the respondent
- SOFRONOFF P: I agree with Ryan J’s reasons and with the orders proposed by her Honour.
- MULLINS JA: I agree with Ryan J.
- RYAN J: The State of Queensland dismissed Mr Royce from his employment as a mediator. He applied to the Queensland Industrial Relations Commission for reinstatement, arguing that his dismissal was unfair. His application was dismissed. He appealed to the Industrial Court. His appeal was dismissed. He appeals now to this Court.
- Mr Royce is only permitted to raise errors of law in this appeal. This Court cannot re-consider the circumstances of his dismissal or re-evaluate the facts to determine whether it was unfair.
- Mr Royce’s arguments to this Court raise no error of law. I would therefore dismiss his appeal and order that he pay the respondent’s costs of it. My reasons follow.
Unsuccessful application for reinstatement
- Mr Royce was dismissed from his employment on 18 October 2016.
- On 7 November 2016, he applied to the Queensland Industrial Relations Commission for reinstatement, alleging that his dismissal was unfair. His application was governed by the now repealed Industrial Relations Act 1999 (IRA). It was heard by the Deputy President of the Tribunal, and dismissed on 28 November 2018.
- On matters of credit, the Deputy President found that Mr Royce was a “very, very unreliable” witness who had been “untruthful”. Where Mr Royce’s evidence was contradicted by another witness, the Deputy President preferred the evidence of the other witness. He also found that Dr Douglas – one of Mr Royce’s witnesses – was not a particularly reliable witness.
- The findings of the Deputy President about the credibility and reliability of Mr Royce and his witness are not something which this Court may revisit.
- The Deputy President found that Mr Royce had not been unfairly dismissed. In broad terms, he found that –
- (a)Mr Royce had been notified of the reasons for his dismissal;
- (b)Mr Royce’s dismissal related to his conduct, capacity or performance;
- (c)Mr Royce had been given an opportunity to respond to the allegations made against him prior to his termination;
- (d)Mr Royce had incorrect views about his status as an employee; his powers; and his right to challenge and question the practices and policies which governed his employment;
- (e)Mr Royce ignored the directions and clear instructions of his line managers including about the parameters of his role and the policies and procedures which applied to him;
- (f)Mr Royce engaged in inappropriate and unauthorised correspondence – contrary to the instructions of his line managers;
- (g)Having been counselled about the upper financial limit of matters which fell within his remit, he dealt with a matter well beyond that limit;
- (h)Mr Royce dishonestly concealed his involvement in a matter exceeding the financial limit;
- (i)Mr Royce engaged in certain conduct after he had been reprimanded for that same conduct;
- (j)Mr Royce dishonestly concealed, for three years, his sexual relationship with a work colleague – in circumstances where he supervised her and where a potential conflict of interest was obvious;
- (k)Mr Royce was shamelessly dishonest in claiming “sick leave” while he was in fact holidaying with his sexual partner; and
- (l)Mr Royce was guilty of the conduct alleged against him which led to his termination.
- Having regard to the requirements of section 77 of the IRA, the Deputy President found that Mr Royce’s dismissal was not harsh, unjust or unreasonable.
- The Deputy President found that Mr Royce’s assertion that his dismissal was “for an invalid reason” (under section 73 of the IRA) was “fanciful”. Although Mr Royce “alluded” to arguments including that his discussion with Dr Douglas involved a public interest disclosure under the Public Interest Disclosure Act 2010, and that he had been discriminated against because he had an unwell son, he did not advance those matters at the hearing.
- He did advance to the Deputy President an argument that considerations which breached the Anti-Discrimination Act 1999 resulted in his dismissal. But the Deputy President rejected that argument, noting that it was “clearly apparent” that Mr Royce was dismissed on the strength of ten allegations concerning his conduct, which were found to be established on the balance of probabilities. He was not dismissed for the reason that he had stored two images on his computer of his sexual partner, topless, in a spa. (Mr Royce argued that discrimination was involved here because the only complaint was about the image of a topless woman: there was no complaint about the image of a topless man (Mr Royce himself) in the spa with her.)
- The Deputy President observed that the nature and degree of Mr Royce’s deceit about his relationship and the holiday reinforced the validity of the decision to terminate his employment.
Appeal to the Industrial Court
- On 17 December 2018, Mr Royce filed an application to appeal against the Deputy President’s decision in the Industrial Court of Queensland.
- His right to appeal was governed by section 557 of the Industrial Relations Act 2016 (IRA 2016).
- As a person aggrieved by a decision of the Commission, Mr Royce was allowed to appeal against it to the Industrial Court, without leave, on the ground of (a) error of law or (b) excess, or want, of jurisdiction.
- Under section 565 of the IRA 2016, he required leave from the Industrial Court to appeal on any other ground, which the Industrial Court could only give if it were satisfied that it was in the public interest to do so.
- On 29 November 2019, the Industrial Court (Martin J) dismissed Mr Royce’s appeal.
- His Honour found that Mr Royce’s application to appeal consisted, for the main part, of an attempt to revisit and reargue the matters agitated in the Commission. Mr Royce had not applied for leave to raise errors of fact and, even if he had, no grounds to support such an application were apparent on the material Mr Royce provided. Nor had Mr Royce demonstrated an error of law.
Whether Mr Royce applied for leave to appeal on the ground of an error or errors of fact
- Mr Royce complained to this Court that he had, in fact, applied to Martin J for leave to appeal on the ground of errors of fact, and assumed it had been granted. He argued that there had therefore been a miscarriage of justice before the Industrial Court because the Court had not understood that he made such an application and he had not been able to air errors of fact.
- Having considered the content of Mr Royce’s application to appeal to the Industrial Court, his written submissions and his oral submissions, it seems to me that Mr Royce was unaware of the requirement to actually apply for leave or the significance of the public interest to the giving of leave when he was appealing to the Industrial Court.
- Mr Royce’s application to appeal was set out in the approved form (Form 5) – but it did not comply with the Industrial Relations (Tribunals) Rules 2011 – particularly rules 139 and 140.
- Rule 139 concerns the form, content and process for applications to appeal. Rule 140 concerns the form, content and process for applications for leave to appeal.
- The Form 5 provided for a statement of the “Grounds of the Appeal”.
- Mr Royce’s statement of the grounds commenced with the following –
“a) Errors of law.
b) An excess and want, of jurisdiction.
c) Grounds other than (a and b) with leave of the Court.”
- Mr Royce claimed he was thereby applying for leave to appeal on errors of fact – that is, on a ground other than (a) or (b) above. That is not at all obvious from the way in which that paragraph is expressed.
- The Rules required an application for leave to appeal to be made separately from an application to appeal. They required an application for leave to appeal to state the facts and circumstances relied on to argue than an appeal should be brought in the public interest. They did not permit an application for leave to appeal to include grounds alleging an error of law, or excess, or want, of jurisdiction. Mr Royce’s “application for leave” met none of those requirements.
- Mr Royce’s statement of grounds continued as follows –
“1 Apprehension of bias and bias by the Commissioner against the Appellant.
2 Extensive delay from the first hearing date (before the presiding Commissioner) to the release of the decision. 541 days and 532 days after the last day of taking evidence. Denial of procedural fairness.
3 Key witnesses for the state committed perjury on two occasions and no implications followed regarding: that evidence, the initial complaints, advise to investigating officers, advise to decision maker, the new issues raised at the hearing, the criminal act of perjury.
4 Statutory protections not applied to the appellant, pursuant to the Dispute Resolutions Act 1990. Appellant’s contract of employment, DRC and Departmental Police and Procedure Documentation issues also ignored.
5 Use of privileged/confidential documents covered by statute were illegally used and admitted.
6 New issues raised at trial with NO real opportunity to consider or obtain documents to counter.
7 Uncontested evidence ignored.
8 Similar issues/conduct by departmental staff were treated totally differently by the department. No ramification –v – grounds for termination for the Appellant. Now sanctioned by the commissioner.
9 Case law not followed.
10 Flawed investigation into allegations that lead to dismissal.
11 Decision maker having regular meetings with complainant while investigation was underway, representations continued to be made to decision maker during this time, without the Applicant’s knowledge. Giving rise to at least an apprehension of bias.
12 Departmental pressure to terminate.”
- Putting to one side Mr Royce’s failure to comply with the Rules, his lengthy and detailed outline of argument to the Industrial Court said nothing about leave to appeal or the public interest. Nor did his reply to the submissions of the respondent State of Queensland.
- It seems to me that, by the opening paragraph of his statement of grounds, Mr Royce was attempting to “cover all bases” when it came to his complaints, avoiding the effort required to characterise alleged errors as ones of fact or law and, in the case of errors of fact, avoiding the need to give consideration to how it might be said necessary in the public interest to appeal from such an error. That is plain from his response when he was asked by the Industrial Court to identify which of his 12 grounds of appeal he was addressing in submissions concerning his correspondence. He said –
“Well, the points that I have raised to the best of my knowledge – I’ve covered what I thought was basically everything – errors, errors of law an excess or want of jurisdiction, grounds other than (a) and (b) with leave of the court. So if they’re not covered within those two, I would be seeking anything that I raise would be grounds other than (a) and (b) with leave of the court, and, specifically, I’ve mentioned an apprehension of bias by the Commissioner …” (my emphasis)
- That is not how it is done.
- While appropriate latitude is extended to persons who are self-represented, appeals cannot sensibly proceed on the basis that a ground must be either one of law or jurisdiction or not and, if “not” (if it is “something” other than an error of law or jurisdiction), that leave will routinely be granted to allow an appellant to make whatever argument he or she seeks to make. Apart from the unwieldy nature of such an approach, and the unfairness it would cause to the other side in an appeal, it would completely undermine the legislative constraints upon appeals in the industrial jurisdiction. Appellants, even those representing themselves, are bound by those constraints.
- Mr Royce did not apply for leave to appeal in an orthodox way, or in anything approximating an orthodox way. Nevertheless, it is plain from the transcript of the hearing before Martin J that his Honour entertained many of Mr Royce’s arguments which concerned only alleged errors of fact and allowed Mr Royce an opportunity to make those arguments. For example, Mr Royce made submissions about the Deputy President erring in fact in finding that Mr Royce had been counselled about certain conduct. And his Honour attempted to assist Mr Royce to make this point by encouraging him to identify relevant evidence before the Commission.
- In effect, Martin J considered Mr Royce’s application on the basis that he had applied for leave to raise errors of fact but found, as above, that nothing in the material provided by Mr Royce supported the giving of such leave.
- Also, whilst the respondent made the point in its written submissions to Martin J that Mr Royce had not been given leave to argue any ground other than one asserting an error of law or jurisdiction, it nevertheless responded to his error of fact arguments in its submissions.
The appeal to this court
- An appeal from the decision of the Industrial Court to the Court of Appeal may only proceed on the grounds of error of law or excess, or want, of jurisdiction (section 554 IRA 2016). As the President of the Court of Appeal explained to Mr Royce at the beginning of the hearing, neither an employee nor an employer is permitted to re-agitate the original dispute through the appellate tiers of the industrial jurisdiction. In other words, an appeal to this Court does not provide an opportunity for Mr Royce to attempt to demonstrate why the original decision maker got it wrong.
- To succeed in his appeal to this Court, Mr Royce was required to identify what he said were errors of law made by Martin J in reaching the conclusions he did on the grounds argued. Mr Royce was unable to do so.
- Martin J responded to Mr Royce’s 12 grounds of appeal as Mr Royce had expressed them in his outline of argument, supplemented by his oral submissions.
- As Mr Royce acknowledged, he was not able to put his arguments into “elegant legal vernacular”; nor was he able to make arguments under “the correct heading”. But he considered his submissions to the Industrial Court raised “intrinsic questions of law, natural justice, errors of fact [and] perjury”. Correctly, Martin J did what he could to construe Mr Royce’s grounds and submissions as viable legal ones – bearing in mind that the focus was on errors made by the Deputy President on the way to his conclusion that Mr Royce’s dismissal was not unfair.
- As to ground 1, Martin J found that the Deputy President did not demonstrate a reasonable apprehension of bias in the course of the hearing, having considered the relevant authorities. His Honour correctly applied those authorities. His Honour therefore committed no error of law. His Honour correctly observed that Mr Royce also complained about bias on the part of the investigators – but that was not something which suggested apprehended bias on the part of the Deputy President.
- As to ground 2, his Honour correctly stated the law when he said that delay of itself was not a ground of appeal. His Honour correctly considered whether anything in the Deputy President’s reasons suggested that delay had affected his decision making processes and concluded that it did not. There was no error of law in that approach.
- As to ground 3, his Honour treated Mr Royce’s argument about perjury as if he had sought leave to raise it. His Honour concluded that leave would not have been granted to argue about the evidence of one witness when the case against Mr Royce, without that witness, was so strong. There was no error of law in that approach, which implicitly considered the public interest.
- As to ground 4, Mr Royce seemed to suggest that, whether or not he raised the protections given to mediators under section 35(1) of the Dispute Resolution Centres Act 1990 (the DRCA), the Deputy President and Martin J ought to have considered their application in deciding whether his dismissal was unfair. His Honour assumed that proposition to be correct and concluded that the protections did not apply to the conduct which led to Mr Royce’s dismissal because they only attached to acts done in good faith for the purposes of that Act. Such an approach was legally, and factually, correct.
- As to ground 5, which concerned the inadmissibility of certain documents, his Honour observed that Mr Royce made no attempt to demonstrate why the documents were inadmissible, beyond citing sections 36 and 37 of the DRCA. The DRCA establishes dispute resolution centres and provides for the appointment of mediators. The evidence the subject of Mr Royce’s complaint was tendered to show that he had breached applicable policies and procedures and behaved dishonestly as a mediator.
- Section 36(4) of the DRCA states that evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body. Section 37 of the DRCA limits the circumstances in which a person may disclose information in connection with the administration of the DRCA.
- Section 26 of the DRCA states that dispute resolution centres are to operate within and as parts of the department, and that nothing in the DRCA derogates from the operation of the provisions of the Public Service Act 2008 (PSA). The relevant department is the Department of Justice and Attorney General. Mr Royce’s dismissal was in accordance with the disciplinary provisions of the PSA.
- In my view, Mr Royce’s purported reliance on the provisions of the DRCA to withhold from consideration evidence relevant to disciplinary action under the PSA would impermissibly derogate from the operation of the disciplinary provisions of the PSA. In my view, he could not rely upon them to prevent the documents from being considered by those responsible for taking disciplinary action against him or by the Deputy President. There was therefore no error of law occasioned by the dismissal of Mr Royce’s appeal on this ground.
- Mr Royce did not appear to make a complaint about his Honour’s conclusion as to ground 6.
- As to ground 7, Mr Royce asserted that the Deputy President was not allowed to discount the evidence of Dr Douglas if his evidence had not been challenged. That proposition is not correct. The Deputy President was not bound to accept Dr Douglas’ evidence in the absence of a challenge to it.
- The Deputy President discounted Dr Douglas’ evidence because he considered it not particularly reliable. He found Dr Douglas too keen to support Mr Royce; distracted during his evidence; purporting to recall events of three and a half years ago; and influenced by recent conversations with Mr Royce. The Deputy President’s approach involved no error. His Honour’s approach, in dismissing Mr Royce’s appeal on that ground, involved no error.
- Mr Royce complained that his Honour failed to find that the Deputy President erred in not finding that his employer’s witness, Ms Smith, committed perjury. The evidence relied upon to establish that Ms Smith had lied in her evidence did not do so. At best, it established that Ms Smith’s recollection in 2017 was inaccurate. At the 2017 hearing, Ms Smith’s recollection was that a certain email had been sent but she could not check because emails prior to December 2014 were “lost” in the “archive system”. However, it emerged that, in 2015, having “trawled” the archived emails, she could find no such email. An inaccurate statement in evidence is not perjury. The Deputy President did not err.
- Mr Royce did not appear to make a complaint about his Honour’s conclusions as to grounds 8 or 9.
- As to ground 10, Mr Royce made 14 complaints to his Honour about the investigative process. It seems that these were the same as, or similar to, the complaints made about the process to the Deputy President. But Mr Royce did not explain how he said that the Deputy President erred in his response to his complaints. Mr Royce, obviously, wanted the Deputy President to conclude that flaws in the investigation meant that his dismissal was unfair. The Deputy President did not reach that conclusion. Mr Royce wanted Martin J to revisit that conclusion but failed to articulate an error of law or fact on the part of the Deputy President. There was therefore no substance to his ground of appeal and his Honour did not err in dismissing it. Ground 11 was in the same category.
- Mr Royce did not appear to make a complaint about his Honour’s conclusions as to ground 12.
- I have now dealt with each of the grounds of appeal before Martin J and his Honour’s response to those grounds. Mr Royce has been unable to demonstrate any error of law by Martin J. Other complaints made by Mr Royce before this Court are irrelevant to his appeal.
- Finally, Mr Royce applied to this Court for leave to adduce additional evidence (certain pages of the transcript of the hearing before the Deputy President) in this appeal. In disposing of Mr Royce’s appeal, I have not found it necessary to go beyond the material already before the Court. I would dismiss his application for leave.
- Published Case Name:
Royce v State of Queensland (Department of Justice and Attorney-General)
- Shortened Case Name:
Royce v State of Queensland (Department of Justice and Attorney-General)
 QCA 90
Sofronoff P, Mullins JA, Ryan J
05 May 2021
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QIRC 143||28 Nov 2018||Application for reinstatement of employment as mediator, alleging unfair dismissal; application dismissed: Bloomfield DP.|
|Primary Judgment|| ICQ 19||29 Nov 2019||Application to appeal against  QIRC 143 dismissed: Martin J.|
|Primary Judgment|| ICQ 22||12 Dec 2019||Costs order following  ICQ 19: Martin J.|
|Appeal Determined (QCA)|| QCA 90||05 May 2021||Appeal from  ICQ 19 dismissed: Sofronoff P, Mullins JA, Ryan J.|
|Special Leave Refused (HCA)|| HCASL 177||09 Sep 2021||Application for special leave to appeal against  QCA 90 refused: Gageler and Gleeson JJ.|