Gobus v Cairns Hinterland Hospital and Health Service
[2018] QCATA 121
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- Gobus v Cairns Hinterland Hospital and Health Service[2018] QCATA 121
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Gobus v Cairns Hinterland Hospital and Health Service[2018] QCATA 121
Gobus v Cairns Hinterland Hospital and Health Service[2018] QCATA 121
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gobus v Cairns Hinterland Hospital and Health Service & Ors [2018] QCATA 121 |
PARTIES: | HENRY HUBERT GOBUS (applicant) |
v | |
CAIRNS AND HINTERLAND HOSPITAL AND HEALTH SERVICE (first respondent) JULIE HARTLEY-JONES (second respondent) STATE OF QUEENSLAND (third respondent) CHERIE SCHAEFFER (fourth respondent) JOE PETRUCCI (fifth respondent) TIMOTHY SHAW (sixth respondent) | |
APPLICATION NO/S: | APL003-16 |
ORIGINATING APPLICATION NO/S: | ADL048-15 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 6 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President |
ORDERS: | Application for leave to appeal be refused |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where grounds of appeal are only that the Member erred in law and erred in fact – whether leave to appeal should be granted where grounds of appeal not substantiated District Court of Queensland Act 1967, s 118 Queensland Civil and Administrative Tribunal Act, s 142 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 18 Gobus v State of Queensland (Cairns and Hinterland Hospital & Health Service) [2016] ICQ 15 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119 Pickering v McArthur [2005] QCA 294 Metro South Hospital and Health Service & Leighton v Luthje [2015] QCATA 145 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | M Spry instructed by Crown Law |
APPEARANCES: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]In August 2014, the applicant lodged a complaint with the Anti-Discrimination Commission of Queensland alleging that he had been the subject of reprisals following the making of a Public Interest Disclosure on 26 May 2012.
- [2]That complaint was referred to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) on 15 May 2015, and became the subject of the current proceeding.
- [3]In late 2015, a number of applications in the proceeding came before the Tribunal. Relevantly, the applicant applied for certain interlocutory relief. Otherwise, on an application by the respondents, it was ordered that the principal proceeding before the Tribunal be stayed pending the publication of a decision by the Queensland Industrial Relations Commission on a reinstatement application by the applicant.[1]
- [4]By the applicant’s relevant interlocutory application to the Tribunal, he sought the following orders:
- (1)That Queensland Health contacts OPTUM immediately (within 2 days) and informs OPTUM that Queensland Health does no longer object to Mr Henry Hubert Gobus consulting Queensland Health employees.
- (2)That Queensland Health approaches OPTUM and convey the new direction with care to ensure that Mr Henry Hubert Gobus’ professional reputation is not in any way injured, damaged or could be viewed in an unfavourable light.
- (3)That OPTUM on the day it receives the instructions from Queensland Health, informs Sharon Daniels and Associates, the clinic Mr Henry Hubert Gobus contracts to, in writing, that Mr Henry Hubert Gobus can consult Queensland Health employees.
- (4)That Queensland Health in the future refrain from interfering with Mr Henry Hubert Gobus’ private psychology practice.
- [5]The interlocutory application was heard on 17 December 2015 and was dismissed with reasons given by the learned member (‘the Member’) on 21 December 2015.
- [6]On 5 January 2016, the applicant filed a Form 39 Application for leave to appeal or appeal in respect of the Member’s decision.
- [7]On 9 March 2016, a number of directions were made to progress the matter, including that the applicant have leave to file an amended application for leave to appeal by 23 March 2016.
- [8]The applicant’s amended application for leave to appeal was provided by the applicant to the Tribunal’s Registry under cover of an email dated 20 March 2016. The only grounds of appeal specified in the amended application were that the Member “erred in law” and “erred in fact”. The amended application sought the following orders:
A/ That the tribunal set the orders made by member Ann Fitzpatrick aside and implement the orders the applicant sought in the interlocutory application which were:
- (1)That Queensland Health contacts OPTUM immediately (within 2 days) and informs OPTUM that Queensland Health does no longer object to Mr Henry Hubert Gobus consulting Queensland Health employees.
- (2)That Queensland Health approaches OPTUM and convey the new direction with care to ensure that Mr Henry Hubert Gobus’ professional reputation is not in any way injured, damaged or could be viewed in an unfavourable light.
- (3)ignore the third order.
- (4)That Queensland Health in the future refrain from interfering with Mr Henry Hubert Gobus’ private psychology practice.
The amended application also wrongly asserted that leave to appeal had been granted by the Tribunal on 9 March 2016. No such leave to appeal was, in fact, granted on that date.
- [9]There were then a number of interlocutory applications, the details of which are not relevant for present purposes, but which took some time to resolve. Ultimately, on 4 April 2018, it was directed that the application for leave to appeal (and if successful, the appeal) be listed for hearing on the papers, without an oral hearing and on the basis of the parties’ written submissions.
The Member’s decision
- [10]The relevant factual background to the application for injunctive relief was summarised by the Member as follows:
[8] Mr Gobus explained that OPTUM is contracted to Queensland Health to provide an employee assistance program, including consultation with psychologists. There is no evidence as to whether the First Respondent or the Department of Health is the contracting party with OPTUM.
[9] Mr Gobus says that he is contracted to Sharon Daniels and Associates as a Clinical Psychologist. Sharon Daniels and Associates is said to be contracted in turn to OPTUM for the provision of psychology services as part of the Queensland Health employee assistance program.
[10] Mr Gobus’ evidence is that since the termination of his employment by Queensland Health he has only been able to secure sporadic work through Sharon Daniels and Associates. He says that Queensland Health referrals pursuant to the employee assistance program are a significant part of the work of Sharon Daniels and Associates. Mr Gobus says that since his termination of employment he has conducted a number of consultations with Queensland Health employees.
[11] On 29 May, 2015 Sharon Daniels and Associates were informed by OPTUM that: “We have been advised that Henry Gobus is not allowed to see any employees from the Cairns Health Service and/or all of Queensland Health, as he is an ex-employee and it is a conflict of interest.”
[12] The direction that Mr Gobus not see Queensland Health employees as part of the employee assistance program is said to be until further notice.
- [11]After summarising the parties’ submissions, and dealing with a necessary jurisdictional matter, the Member turned to the application for interim injunctions, properly invoked ss 58 and 59 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), and then said this:
[24] Based on Mr Gobus’ submissions as to his current circumstances, I have formed the view that Mr Gobus is seeking an immediate remedy for the difficult financial position in which he finds himself. He is seeking to do so without a hearing into the question of whether he has been the victim of a reprisal related to his public interest disclosure. That is an order which should not be made lightly.
- [12]The Member found that orders 2 and 4 sought by the applicant could not be made “given their imprecision and subjectivity”. Given the terms in which those injunctions were sought, this conclusion by the Member was plainly correct and not susceptible to challenge.
- [13]The Member also held that order 3 could not be made because OPTUM was not a party to the proceeding. Again, given the terms in which order 3 was cast, that conclusion was manifestly correct.
- [14]The Member expressed similar concerns about the purported reach of order 1, and expressed some reservations about whether it was necessary to secure the effectiveness of the Tribunal’s jurisdiction.
- [15]The Member went on, however, to consider “whether it is appropriate in the interests of justice that Order 1 [be] made, for a reason that includes the protection of Mr Gobus’ position for the duration of the proceeding”.
- [16]Invoking conventional authorities such as Australian Broadcasting Corporation v O'Neill,[2] the Member then applied the appropriate tests for the grant of interlocutory injunctions.
- [17]It was found that there had been no unacceptable delay in bringing the application.
- [18]As to whether there was a serious question to be tried, the Member found that the applicant had not expressly stated any basis for the assertion that the actions of the respondents were reprisals for the public interest disclosure. The Member said:
[30] As to whether there is a serious question to be tried, the proceeding is currently the subject of a strike out application which has been stayed. However, without determining that matter, as the case is currently set out in the amended contentions, there is no basis expressly stated for asserting that the actions of the respondents are reprisals for the public interest disclosure. During the strike out application heard immediately prior to this application, Mr Gobus submitted that the Tribunal should find reprisals had occurred, as a matter of inference. There is very limited evidence before the Tribunal at this time to justify the drawing of that inference. I find that there is not on the current state of the evidence, a sufficient likelihood of success to justify reverting to the previous position where Mr Gobus was available as a provider of psychology services in the employee assistance program.[3] The respondents submitted that the Tribunal will require a ‘high level of assurance’, before granting the relief sought, particularly where the relief sought has the effect of finally determining the rights of the parties.[4] Because Mr Gobus’ case is a case built on inference, with little supporting evidence, I do not have the necessary degree of assurance. As I have said Mr Gobus seeks relief without a finding of a reprisal at this stage.
- [19]Further, the Member found that there was no evidence to satisfy her that damages would not be an adequate remedy for the applicant.
- [20]The Member then turned to consider the question of the balance of convenience, including by noting on the one hand the applicant’s arguments concerning his potential loss of income against, on the other hand, the respondents’ contentions about objective concerns with allowing employees seeking psychological assistance to be seen by a person (i.e. the applicant) who was making wide-ranging and serious allegations against their employer. It was found that the balance of convenience did not favour the applicant.
- [21]The application for injunctive relief was therefore dismissed.
Leave to appeal
- [22]As already noted, contrary to the applicant’s assertion that the directions made on 9 March 2016 included that he have leave to appeal, the applicant has not been granted such leave.
- [23]As the Member’s decision to dismiss the application for injunctive relief was not a final decision, an appeal against that decision may only be made if the applicant has leave to appeal.[5]
- [24]Prior to its amendment in 2010,[6] s 118 of the District Court of Queensland Act 1967 effectively provided that leave to appeal was required for an appeal from an interlocutory judgment of the District Court to the Court of Appeal. In Pickering v McArthur,[7] Keane JA (as he then was), with whom McMurdo P and Dutney J agreed, said of that requirement:[8]
Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.
- [25]This approach has been adopted in this Appeal Tribunal relating to leave to appeal against interlocutory decisions of the Tribunal – see, for example, Metro South Hospital and Health Service and Leighton v Luthje.[9]
The present application
- [26]The applicant’s amended application does no more than baldly assert that the grounds of appeal are that the Member erred in law and erred in fact.
- [27]The written submissions filed by the applicant on the present application failed to address the necessity for the applicant to have leave to appeal, and did not articulate any proper basis for the grant of leave.
- [28]Rather, the applicant’s written submissions were a confusing amalgam of assertions on “matters of law” and “matters of fact” in which he purported to critique the approach and findings made by the Member.
- [29]Many of his submissions on “matters of law” were premised on, or expressly repeated, the applicant’s assertion that the direction to OPTUM not to refer Queensland Health employees’ assistance clients to him was illegal. This submission had, in fact, been expressly adverted to by the Member at paragraph [15] of her reasons.
- [30]So, for example, the applicant submitted that the Member:
Erred by failing to state on which statutory Act and relevant sections she found that in this case an unknown person or persons in Queensland Health can order/direct or request an organisation in this case OPTUM prevent the applicant from seeing Queensland Health employees which are in excess of 60000 (sixty thousand) people.
In fact, the Member did not make any such finding.
- [31]By way of further example, the applicant submitted that the learned Member:
Erred because as long as the identity or identities of the person or persons who contacted the organisation Optum and instructed them that Henry Gobus is not to consult Queensland Health employees is unknown, every aspect of Member Ann Fitzpatrick’s decision is based on conjecture and assumption, because the person or persons who contacted OPTUM could have been a prank caller or callers.
Apart from the fact that this is not a submission of an error of law, it assumes a necessity for the Member to have made such a finding when, in truth, this was unnecessary for the purposes of the application for interlocutory injunctive relief with which the Member was concerned.
- [32]The apogee of the applicant’s written submissions was in paragraph 7 in which he selectively quoted the first two sentences of paragraph [30] of the Member’s reasons (quoted in full above) and then asserted:
Member Ann Fitzpatrick should have found that the person or persons who contacted the organisation OPTUM and instructed OPTUM that Henry Gobus is not to consult Queensland Health employees because of conflict of interest, have no foundation in law and therefor such action is unlawful and it follows that on the balance of probability the action of the person or persons is reprisal action within the meaning of the [Public Interest Disclosure Act 2010].
- [33]These bald assertions ignore the fact that what was before the Member for decision was the applicant’s application for interlocutory mandatory injunctive relief. In paragraph [30] of her reasons, the learned Member identified matters which were directly relevant to the germane issue on that application, i.e. whether the applicant had identified the serious issue to be tried. The Member explained in paragraph [30] the foundation for her statement that, on the contentions presently before her, there was no basis for asserting that the respondents’ actions were reprisals for the public interest disclosure. The applicant’s criticism of the approach and reasoning adopted by the Member is misconceived. The Member clearly appreciated the relevant legal tests to be applied on the interlocutory application, and applied those tests to the evidence before her. There was no error in her approach.
- [34]Otherwise, the applicant’s written submissions amounted to complaints that the Member, by her decision, was victimising the applicant, and that she erred by preferring the respondents’ submissions to the applicant’s submissions. There is no proper point of appeal in any of these assertions. A further submission by the applicant that the Member should have found that the Minister for Health was criminally responsible as an accessory after the fact was mischievous and misconceived.
- [35]As to the applicant’s submissions on “matters of fact”, the applicant described as “questionable” the following finding in the Member’s reasons:
I note that there is no evidence from Sharon Daniels and Associates, that even if Queensland Health were to inform OPTUM that it no longer objects to Mr Gobus providing psychology services as part of the employee assistance program, that it would allocate work to him upon referral to that business.
- [36]The Member made that finding in the context of considering, for the purposes of the balance of convenience, the applicant’s assertion of continuing loss of income. In describing this finding as “questionable”, the applicant pointed to a number of emails which were in evidence before the Member concerning the work being undertaken by the applicant with respect to Queensland Health clients. Those emails certainly confirmed, as was the uncontested fact, that the applicant had been seeing Queensland Health clients. None of the emails, however, in any way confirmed that Sharon Daniels would allocate work to the applicant if Queensland Health informed OPTUM that it no longer objected to Mr Gobus providing psychology services as part of the employee assistance program. There is no basis for impugning the Member’s finding.
- [37]Otherwise, the applicant’s submissions on “matters of fact” amount to nothing more than the applicant contending that the learned Member’s findings were “derogatory” of him. Even if they were capable of being construed in that way, we do not consider that they give rise to any legitimate basis for overturning the findings the Member made or the orders she made. The findings do not cause substantial injustice to the applicant in the relevant sense, and there is no demonstrated error to be corrected.
- [38]The submissions also contained misconceived, gratuitous and unfounded observations on the Member’s understanding of the doctrine of separation of powers.
- [39]In short, there is no substance to any of the applicant’s complaints about “matters of fact” which are said to contain error.
Conclusion
- [40]Having regard to the test to be applied on an application for leave to appeal, it is clear that, not only has the applicant failed to demonstrate that an appeal is necessary to correct a substantial injustice, he has comprehensively failed to advance any, let alone any reasonable argument that there is error in the Member’s decision which needs to be corrected. It follows that the application for leave to appeal should be refused.
- [41]Finally, we should observe that even if leave to appeal had been granted, the appeal itself would inevitably have been dismissed. For the reasons we have given above, the applicant has demonstrated no error, either as a matter of law or in the exercise of the Member’s discretion, which would warrant appellate interference with her decision.
- [42]Accordingly, it is ordered that the application for leave to appeal be refused.
Footnotes
[1]That reinstatement application was subsequently dismissed (Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 18), and an appeal against that decision was then dismissed by the Industrial Court of Queensland (Gobus v State of Queensland (Cairns and Hinterland Hospital & Health Service) [2016] ICQ 15).
[2](2006) 227 CLR 57.
[3] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J and [7] per Gummow and Hayne JJ.
[4]Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119 at [21].
[5]QCAT Act, s 142(3)(a)(ii).
[6]by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
[7][2005] QCA 294.
[8]Ibid, at [3], and omitting references.
[9][2015] QCATA 145.