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Murphy v State of Queensland (Darling Downs Hospital and Health Service)[2015] QIRC 129

Murphy v State of Queensland (Darling Downs Hospital and Health Service)[2015] QIRC 129

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129

PARTIES:

Murphy, Raymond Leo

(Applicant)

v

State of Queensland (Darling Downs Hospital and Health Service)

(Respondent)

CASE NO:

TD/2014/141

PROCEEDING:

Application for Extension of Time

DELIVERED ON:

10 July 2015

HEARING DATE:

28 April and 22 May 2015

MEMBER:

Industrial Commissioner Fisher

ORDER:

The time for filing the application for reinstatement is extended to 19 December 2014.

CATCHWORDS:

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application for extension of time - application filed beyond statutory time limit - Commission's statutory and unfettered discretion - length of delay - when did the dismissal take effect - explanation for the delay - whether prejudice to the applicant or respondent - prospects of success - applicant attempted to comply with the statutory time limit - on balance the justice of the case requires the exercise of discretion to extend the time for filing - application granted.

CASES:

Industrial Relations Act 1999, s 71, s 74, s 78, s 83, s 85, s 319, Schedule 3

Electronic Transactions (Queensland) Act 2001, s 21, s 24, s 25, Schedule 2

Electronic Transactions Act 2000 (NSW), s 13A

Industrial Relations Act 1990, s 295

Burns v Aboriginal Legal Service of Western Australia (Inc.) [2000] AIRCFB T3496

Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123

Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30

Wantling v Department of Community Safety (Queensland Corrective Services) (TD/2012/220) - Decision

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Aurukun Shire Council v Schardijn [2014] QIRC 091

Shane Rich v Chubb Protective Services (2001) 167 QGIG 159

Breust v QANTAS Airways Ltd (1995) 149 QGIG 777

Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Dut v Caterfare Pty Ltd [2014] FWC 2859

Herwin v Flexihire Pty Ltd (1995) QGIG 709

APPEARANCES:

Mr R.L. Murphy, in person, for the Applicant.

Mr C.J. Murdoch, Counsel instructed by Minter Ellison Lawyers for the Respondent.

Decision

  1. [1]
    The Darling Downs Hospital and Health Service instituted a disciplinary process against Raymond Murphy, who was employed as a Registered Nurse, by providing him with a letter dated 21 May 2014 setting out three allegations against him.  Each of the allegations had a number of components.  Mr Murphy responded to the allegations in writing on 9 June 2014.  By letter dated 13 August 2014 the decision maker found that all of the allegations had been substantiated.  He informed Mr Murphy that consideration was being given to the disciplinary penalty of dismissal.  Mr Murphy was given the opportunity to respond to the proposed penalty.  He did so by letter dated 9 September 2014.
  1. [2]
    In light of Mr Murphy's response the decision maker obtained further information.  By letter dated 15 October 2014 the decision maker advised Mr Murphy of his amended findings in relation to Allegations 1(b) and 2(c).  Notwithstanding the amended findings, the decision maker advised the same disciplinary penalty of dismissal was being considered.  Mr Murphy was given a further opportunity to respond to the proposed penalty and provided a submission on 25 October 2014.
  1. [3]
    On 25 November 2014, Dr Peter Gillies, the Acting Chief Executive of DDHHS, signed a letter confirming the disciplinary penalty of dismissal would be imposed on Mr Murphy with "immediate effect".  Dr Gillies delegated to Christopher Neilsen, Director of Human Resources, DDHHS, the task of conveying the letter to Mr Murphy.  Mr Neilsen decided to do this by firstly having the letter emailed to Mr Murphy, followed by a hard copy sent by registered mail.  To ensure he had the correct email address Mr Neilsen attempted to telephone Mr Murphy on the afternoon of 25 November 2014. When he was unable to contact Mr Murphy that day, he telephoned again on 26 November 2014.  Mr Neilsen was able to speak with Mr Murphy then.
  1. [4]
    Following the conversation Mr Neilsen delegated one of his staff, Jodie O'Dea, to send the correspondence to Mr Murphy's home email address.  The email was sent at 10.49 am on 26 November 2014.  The subject matter is shown as "Correspondence for Mr Ray Murphy" and "notice of Decision on penalty 19112014" is shown as an Attachment.  The body of the email reads:

"Good morning Mr Murphy

As per your conversation with Mr Chris Neilsen I have been asked to forward the attached correspondence from the Acting Chief Executive to you.

Regards

Jodie."

The attached correspondence was Dr Gillies' letter of 25 November 2014.

  1. [5]
    Mr Murphy accessed the email on 28 November 2014, on his return to his home in Toowoomba after working in Brisbane for the preceding two days.
  1. [6]
    In addition to advising of the dismissal, the letter of termination stated:

"You are entitled to appeal this decision by lodging an application for reinstatement with the Queensland Industrial Relations Commission within 21 calendar days of receipt of this letter."

  1. [7]
    Mr Murphy posted his application for reinstatement by ordinary mail from a post office in Toowoomba.  The Industrial Registry received his application for reinstatement on 19 December 2014

Matters to be Determined

  1. [8]
    Section 74(2)(a) of the Industrial Relations Act 1999 (IR Act) provides that an application for reinstatement is to be filed within 21 days after the dismissal takes effect.  The primary question before the Commission is when the dismissal took effect.  The answer will determine whether the Commission is required to consider allowing a further period for filing the application: s 74(2)(b) of the IR Act.
  1. [9]
    DDHHS contends that Mr Murphy's application was received two days outside the statutory time period.  Mr Murphy disputes this contention, arguing that it was not late, alternatively, if it was, then he was not responsible for the delay.
  1. [10]
    Both Mr Murphy and Mr Neilsen gave evidence at the hearing of the application to extend time.  Mr Murdoch, of Counsel, who was permitted by the Commission to appear pursuant to s 319(2)(ba)(B) of the IR Act, provided a written outline of submissions and made oral submissions at the conclusion of the evidence.  In fairness to Mr Murphy, who was representing himself, the Commission allowed Mr Murphy to make written submissions with DDHHS being able to make a reply submission on matters of law.  To assist Mr Murphy with his preparation my Associate emailed Mr Murphy a copy of the transcript when it became available.
  1. [11]
    Mr Murphy made multiple submissions in response to that of DDHHS, attaching a great number of documents.  Much of his submissions and many of the documents purport to give or be evidence of various matters.  Those meeting this description are inadmissible and are not capable of being considered by the Commission in reaching the decision on this preliminary argument.

When did the dismissal take effect?

  1. [12]
    Mr Murphy has advanced a number of arguments in support of his contention that his application was made within the statutorily prescribed time.  These are set out below, together with any relevant submission made by DDHHS followed by my consideration and conclusion.
  1. [13]
    No pay in lieu of notice received:  Mr Murphy submits that the dismissal took effect on 2 January 2015 because he did not receive five weeks pay in lieu of notice.  Further, the IR Act requires that an employer may only dismiss an employee if the employee has been given the period of notice required or paid compensation in accordance with relevant sections.  He submits the effect of these provisions is that his application for reinstatement could not have been made out of time because he had not received a notice payment.
  1. [14]
    Mr Murphy relies on s 71KC of the IR Act to make this submission.  The cited section is not applicable, however, comparable provisions are found in s 83.  In any event his submission can be rejected.  Section 83(4) requires that where there has been a failure to give the required notice or pay the required compensation, then certain orders can be made by the Commission (or magistrate in certain circumstances).  In relation to a failure to pay compensation, s 85 provides the calculation as to the minimum amount of compensation required to be paid.
  1. [15]
    Mr Murphy's contention that the employer failed to give notice or pay compensation is not supported by his own documents.  The pay advice slip attached to one of Mr Murphy's submissions shows that he was paid in lieu of notice.  There has been no breach of the IR Act.  Moreover, the fact Mr Murphy made an application for reinstatement in December 2014 shows that he was aware the dismissal took effect some time earlier.
  1. [16]
    No agreement about the email address:  Mr Murphy contends that in the telephone conversation of 26 November 2014 Mr Neilsen did not inform him of the nature of the correspondence or confirm the email address to which to send it.
  1. [17]
    The argument concerning the email address is relevant to the submissions made by DDHHS in relation to the application of the Electronic Transactions (Queensland) Act 2001 (ETQ Act).  The relevant section of that Act is set out below:

24 Time of receipt

  1. (1)
    Unless otherwise agreed between the originator and the addressee of an electronic communication -
  1. (a)
    the time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
  1. (b)
    the time of receipt of the electronic communication at another electronic address of the addressee is the time when both -
  1. (i)
    the electronic communication has become capable of being retrieved by the addressee at that address; and
  1. (ii)
    the addressee has become aware that the electronic communication has been sent to that address.
  1. (2)
    For subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
  1. (3)
    Subsection (1) applies even though the place the information system supporting an electronic address is located may be different from the place the electronic communication is taken to have been received under section 25."
  1. [18]
    Mr Neilsen's evidence is that in their telephone conversation of 26 November 2014 he told Mr Murphy a decision had been made confirming the penalty and he had a letter to that effect.  He asked Mr Murphy whether the email address on the HR files (being a home email address) was the most suitable address to which to send the letter and Mr Murphy confirmed that it was.  Mr Murphy said in evidence that Mr Neilsen did not advise of the nature of the correspondence.  Further, he had no recollection of an email address being mentioned in the conversation with Mr Neilsen and, in particular, that his home email address was identified.  However, he acknowledged he advised Mr Neilsen that email was the most appropriate way to convey the correspondence.  It is common ground that the correspondence was sent to Mr Murphy's home email address.
  1. [19]
    I prefer the evidence of Mr Neilsen.  Given the nature of the correspondence and that Mr Murphy was absent from the workplace at the time,[1] I accept the purpose of Mr Nielsen contacting Mr Murphy was to advise that he had the letter advising of the disciplinary penalty and to ensure the most effective means of sending it to him.  To that end Mr Neilsen confirmed Mr Murphy's home email address held on the HR files.  I find that Mr Murphy designated the email address by confirming to Mr Nielsen in the telephone conversation of 26 November 2014 that his home email address as read out by Mr Nielsen was the appropriate address to which to send the correspondence.
  1. [20]
    No agreement with the "originator" of the electronic communication:  Mr Murphy contends that the originator of the email was Ms O'Dea and he did not have an agreement with her that she could use his home email address.
  1. [21]
    Schedule 2 of the ETQ Act defines "originator" as a person by whom, or on whose behalf, the electronic communication has been sent or generated before storage, if any, but does not include a person acting as an intermediary for the electronic communication.  It is clear that Dr Gillies signed the letter of termination and delegated responsibility to Mr Neilsen to convey it to Mr Murphy.  After his conversation with Mr Murphy, Mr Neilsen delegated to Ms O'Dea the task of sending an email attaching the correspondence from Dr Gillies.  However, she was not the "originator" within the meaning of Schedule 2 to the ETQ Act, that was Mr Neilsen and he had agreed with Mr Murphy to have the letter sent electronically to an address Mr Murphy had designated.  Further, Ms O'Dea was not an intermediary but a person with delegated responsibility.
  1. [22]
    When was the letter of termination received by Mr Murphy?:  As mentioned earlier, s 74(2)(a) provides that an application must be made within 21 days after the dismissal takes effect.  The question of when a dismissal takes effect was considered by a Full Bench of the Australian Industrial Relations Commission in Burns v Aboriginal Legal Service of Western Australia (Inc.) where it was held:

"In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated."[2]

  1. [23]
    The Commission must therefore consider when the dismissal was communicated to Mr Murphy.
  1. [24]
    DDHHS submits that the dismissal took effect on 26 November 2014, the date the email and attached correspondence was sent to Mr Murphy's home email address.  In contending that the dismissal took effect on that date, DDHHS relies on s 24(1)(a) of the ETQ Act.  DDHHS submits that even if Mr Murphy did not choose to read the letter of termination until two days after it was sent it does not follow that the dismissal was not communicated to him on 26 November 2014.
  1. [25]
    DDHHS also notes that Mr Murphy nominates in his application for reinstatement the date of notification of the dismissal as 27 November 2014 .  In response to the next question in the application of when the dismissal took effect, Mr Murphy said "immediately".
  1. [26]
    Mr Murphy contends that the dismissal took effect on the day he opened Ms O'Dea's email and read the correspondence, i.e., 28 November 2014.  In response to the proposition that he had opened the email and read the letter on 27 November 2014, Mr Murphy said in evidence that he did not have a copy of the covering email when he completed the form and thus could not be certain about when he opened it.
  1. [27]
    I consider Mr Murphy opened the email and the attached letter on 28 November 2014.
  1. [28]
    The Commission accepts the submission of DDHHS that the time of receipt of the letter of termination is determined by s 24(1)(a) and (2) of the ETQ Act.  The effect of the application of these provisions to this case is that the time of receipt of the email and attached correspondence was when it was capable of being retrieved by Mr Murphy at his home email address, the address he had designated.  The email attaching the correspondence was sent within a few minutes of Mr Neilsen and Mr Murphy completing their conversation on 26 November 2014.  The date and time shown on the email is 26 November 2014 10:49 am.
  1. [29]
    The expression "capable of being retrieved" was considered by Sackar J in Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor[3] in the context of s 13A of the Electronic Transactions Act 2000 (NSW).  Except for the introductory words to s 13A(1), which do not impact on the meaning of the expression in question, s 13A(1)(a) is in the same terms as s 24(1)(a) of the ETQ Act.  Sackar J held:

"The words 'capable of being retrieved' are ample in their reach.  They certainly do not require an email to be opened, let alone read."[4]

  1. [30]
    This view was endorsed by McMurdo J in relation to s 24 of the ETQ Act in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor.[5]
  1. [31]
    It does not matter that Mr Murphy was not in Toowoomba on the day the email was sent and only opened it on 28 November 2014.  The effect of s 24(2) of the ETQ Act is that Mr Murphy received the electronic communication (email and attached correspondence) when it reached his email address.  There is no evidence before the Commission that the email did not reach Mr Murphy's email address on 26 November 2014.
  1. [32]
    Conclusion:  The date the dismissal took effect is the date the decision was communicated to Mr Murphy.  This was 26 November 2014, the date the email attaching the correspondence from Dr Gillies reached Mr Murphy's home email address and was capable of being retrieved by him.
  1. [33]
    To be filed within 21 days after the dismissal took effect the application was required to be made to the Industrial Registry no later than 17 December 2014.[6]  The application was filed two days past this date and was thus outside the 21 day time limit prescribed by s 74(2)(a) of the IR Act.  It is therefore necessary for the Commission to determine whether to exercise its discretion pursuant to s 74(2)(b) to extend the time for filing.

Extension of Time

  1. [34]
    DDHHS opposes an extension of time being granted.
  1. [35]
    In Wantling v Department of Community Safety (Queensland Corrective Services),[7] O'Connor DP drew on the decision of Brisbane South Regional Health Authority v Taylor[8] and a range of authorities from the Industrial Court of Queensland to arrive at the conclusion that the statutory time limit in s 74(2)(a) should only be departed from in the most compelling of circumstances to ensure that justice is done between the parties.  Kaufman DP agreed with that approach in Aurukun Shire Council v Schardijn.[9]
  1. [36]
    Section 74(2)(b) does not have equal standing with s 74(2)(a).[10]  An applicant has a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.[11]
  1. [37]
    The discretion provided by s 74(2)(b) is statutory and unfettered.[12]  However, in Breust v QANTAS Airways Ltd[13] ('Breust') Chief Commissioner Hall identified the key factors the Commission might, in ordinary circumstances, take into account in determining whether to exercise its discretion to grant an extension of time:
  1. (i)
    the length of the delay;
  2. (ii)
    the explanation for the delay;
  3. (iii)
    the prejudice to the applicant if the extension of time is not granted;
  4. (iv)
    the prejudice to the respondent if the extension of time is granted; and
  5. (v)
    any relevant conduct of the respondent.
  1. [38]
    In the decision of Paterson v Medical Benefits Fund of Australia Limited,[14] ('Paterson') Chief Commissioner Hall placed three caveats on the approach taken in Breust:

"First, s. 295(2)(b) vests an unlimited statutory discretion.  The discretion may never be surrendered to precedent or so called settled principles.  It must always be exercised.  Second, the time limit of 21 days which is imposed by s. 295(2)(a) is a time limit imposed not by rule of practice or a rule of court, but by the Legislature.  It must be respected.  Third, the applicant's prospects of success at the substantive hearing are always a relevant matter.  Where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time."  (references omitted.)

(Note:  s 74(2) is in substantially similar terms to s 295(2) of the Industrial Relations Act 1990.)

  1. (i)
    Length of the delay
  1. [39]
    The delay was not lengthy.  This much was conceded by DDHHS.  However, as Hall CC said in Paterson, the time limit is established by the Legislature and must be respected.
  1. (ii)
    Explanation for the delay
  1. [40]
    Because he believed that the date the dismissal took effect was either the date he received his termination pay or the date he opened the email, Mr Murphy was of the view that his application was lodged within the prescribed time.  For the reasons given above his beliefs were incorrect.
  1. [41]
    The submission concerning the effective date of termination being the date he received his termination pay was made in response to the submissions of DDHHS.  I am satisfied that this was an attempt by Mr Murphy to develop an argument that his application was filed within time.  I am further satisfied that this belief was not in his mind at the time of making his unfair dismissal application.  It is not relevant to considerations of extension of time.
  1. [42]
    Mr Murphy said he had completed most of his application by the end of November and then redrafted and fine-tuned it.  He posted the application to the Industrial Registry from a post office in Toowoomba on 15 December but acknowledged the date could have been 16 December 2014.  He denied posting it later than this.  By posting the application on either of 15 or 16 December 2014, Mr Murphy believed that he had three or four days for it to be received by the Industrial Registry to still be within the 21 day time limit. 
  1. [43]
    This submission is premised on the dismissal taking effect on 28 November 2014.  Despite my finding that the dismissal took effect on 26 November 2014, it is clear and I am prepared to accept that Mr Murphy acted on the basis that it took effect on the date he opened the email and attached correspondence, viz., 28 November 2014.
  1. [44]
    His application is dated 15 December 2014 and he answers "yes" to the question of whether the application is being made within 21 days of the dismissal taking effect.  This is confirmed in Schedule 3 of the application for reinstatement form which asks applicants to explain the reasons for the delay in filing.  Mr Murphy states "Not applicable - no delay in filing".
  1. [45]
    Although this information is not evidence that Mr Murphy posted the application on 15 December 2014, it lends credence to his contention that he was attempting to comply with the statutory time period to make his application.
  1. (iii)
    the prejudice to the applicant if the extension of time is not granted
  1. [46]
    Mr Murphy will be denied the opportunity to have the Commission determine whether his dismissal was harsh, unjust or unreasonable.
  1. (iv)
    the prejudice to the respondent if the extension of time is granted
  1. [47]
    DDHHS concedes that it will not suffer any substantial prejudice if the extension of time is granted.
  1. [48]
    The "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[15]  The Commission accepts the absence of prejudice is a "neutral consideration" that "neither favours nor acts against providing a further period for the application to be made."[16]
  1. (v)
    any relevant conduct of the respondent
  1. [49]
    There is no conduct of DDHHS which arises for consideration.
  1. [50]
    Other issues - Merits of the Application/Prospects of Success:  DDHHS submits that Mr Murphy's application lacks sufficient merit to warrant an extension of time.  In particular, DDHHS submits that Mr Murphy was subject to a fair disciplinary process with the result that allegations of continued attendance misconduct were substantiated.  From this Dr Gillies formed the opinion that the appropriate disciplinary penalty was dismissal.  Mr Murphy admitted to being absent on relevant dates and did not deny the allegations.  In the circumstances the Chief Executive acted on a valid reason in deciding to dismiss Mr Murphy.
  1. [51]
    Perusal of Mr Murphy's responses to the show cause letters reveals that he did not largely dispute the substance of the allegations.  His responses were taken into consideration and, when he provided relevant information, the decision was altered in relation to two sub-allegations.
  1. [52]
    In his closing submissions to the Commission, Mr Murphy has made some attempt to counter the submissions of DDHHS about the merits of his case and his prospects of success.  He has attached to his submissions various documents which were obtained after his dismissal but which he states were available to the decision maker.  He claims these contradict the basis on which the decision to dismiss him was made.  Because these documents are inadmissible at this point of these proceedings, the Commission is unable to determine whether these documents would be admissible in any substantive proceedings, are relevant to the allegations made and bear on the decision to terminate Mr Murphy's employment.  Nonetheless, his contention about the effect of the recently obtained documents at this late stage complicates the conclusion about his prospects of success.
  1. [53]
    I accept that Mr Murphy is self-represented and this may account for the absence of circumspection in the various documents he has provided both to DDHHS as part of the show cause process and to the Commission in these proceedings.  He makes various allegations about and maligns DDHHS employees engaged in the process and those acting for DDHHS, complains about past issues he has had with DDHHS, and threatens a variety of legal actions.  Although Mr Murphy might be concerned about his dismissal and the process involved in leading up to it, it is evident that Mr Murphy seeks to use the reinstatement proceedings in large part to vent his displeasure at his employer and its agents especially regarding matters not directly relevant to the reasons for his dismissal.
  1. [54]
    Moreover, it is clear that by his various allegations he has lost trust and confidence in his employer and many of its officers and agents.  In those circumstances were his dismissal be found to be unfair, the Commission will almost certainly remove the remedy of reinstatement from consideration.  Mr Murphy's application does not specify the remedy of re‑employment.  I note though that the remedy of compensation might be available if the primary remedy of reinstatement is not.  This alternative remedy is nominated in Mr Murphy's application as an order sought.
  1. [55]
    In my view the matters just considered are relevant to deciding whether to allow the time for filing to be extended.
  1. [56]
    Conclusion:  Mr Murphy has filed his application two days beyond the statutory time limit.  As the case law establishes this time limit must be respected and the worker has to positively demonstrate that the justice of the case requires an extension of time.  Whether time should be extended involves an exercise of discretion and the discretion is unfettered.
  1. [57]
    In reaching a decision the relevant considerations must be weighed and balanced.  Weighing in favour of an extension of time being granted is that Mr Murphy attempted to comply with the 21 day period.  He signed his application on 15 December 2014 and he gave evidence that he posted it either that day or the next.  Although there is nothing to corroborate that Mr Murphy took those steps on the dates nominated there is also nothing that establishes or persuades me that he did not.  I do not consider that Mr Murphy was being untruthful in his evidence on this issue.  I am prepared to accept that Mr Murphy was motivated to ensure that his application was received within time particularly as he has many grievances with DDHHS which he wishes to ventilate.
  1. [58]
    That he has so many issues, a large portion of which appear to be irrelevant to the issues involved in the termination, is a factor that counts against an extension of time.  This concern is exacerbated by Mr Murphy not substantially disputing the allegations that were made against him in the show cause process.  Belatedly, as part of the present proceedings, Mr Murphy contends that he now has documentary evidence showing the allegations and findings are incorrect.  His documentary evidence is unable to be taken into consideration by me.  However, the merits of an application have to be clear cut in order to be a factor in not extending time.[17]  The Commission cannot reach this conclusion given Mr Murphy asserts there is documentation that assists his case.
  1. [59]
    Also weighing against extending time is that the prospect of reinstatement, the primary remedy under the IR Act, is remote were his dismissal found to be unfair.  The remedy of compensation remains available however.
  1. [60]
    There is much about Mr Murphy's case that is unsatisfactory.  However, this is not a case where Mr Murphy prevaricated or otherwise acted in a manner that delayed the making of the application.  I am persuaded that Mr Murphy attempted to comply with the 21 day time limit which he believed commenced from 28 November 2014.  His attempt to comply is a compelling consideration which, in my view, prevails over the various difficulties with his case.  I do not consider justice is served by refusing to extend time when a self-represented applicant has tried to respect the statutory time limit.  When this is considered in combination with the minimal time delay, that the delay cannot be attributed to Mr Murphy's inactivity, and that no prejudice accrues to DDHHS, the Commission has decided on balance that the justice of the case requires the exercise of discretion to extend the time for filing.
  1. [61]
    The application for an extension of time is granted.
  1. [62]
    Order accordingly.

Footnotes

[1] It is unclear whether he was suspended from DDHHS or on recreation leave.

[2] Burns v Aboriginal Legal Service of Western Australia (Inc.) [2000] AIRCFB T3496.

[3] Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123.

[4] Ibid [77].

[5] Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30 [29].

[6] Section 38(1)(b) of the Acts Interpretation Act 1954.

[7] Wantling v Department of Community Safety (Queensland Corrective Services) (TD/2012/220) - Decision

[8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[9] Aurukun Shire Council v Schardijn [2014] QIRC 091 [19].

[10] Shane Rich v Chubb Protective Services (2001) 167 QGIG 159, 160.

[11] Ibid.

[12] Ibid.

[13] Breust v QANTAS Airways Ltd (1995) 149 QGIG 777, 778.

[14] Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232, 233.

[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[16] Dut v Caterfare Pty Ltd [2014] FWC 2859 [25].

[17] Herwin v Flexihire Pty Ltd (1995) QGIG 709, 710.

Close

Editorial Notes

  • Published Case Name:

    Murphy v State of Queensland (Darling Downs Hospital and Health Service)

  • Shortened Case Name:

    Murphy v State of Queensland (Darling Downs Hospital and Health Service)

  • MNC:

    [2015] QIRC 129

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    10 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aurukun Shire Council v Schardijn [2014] QIRC 91
2 citations
Jump To
Cite 1 - [2014] QIRC 91
Cite 2 - [2014] QIRC 91
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123
3 citations
Jump To
Cite 1 - [2012] NSWSC 1123
Cite 2 - [2012] NSWSC 1123
Cite 3 - [2012] NSWSC 1123
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Burns v Aboriginal Legal Service of Western Australia (Inc.) [2000] AIRCFB T 3496
2 citations
Jump To
Cite 1 - [2000] AIRCFB T 3496
Cite 2 - [2000] AIRCFB T 3496
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd[2015] 1 Qd R 265; [2014] QSC 30
2 citations
Jump To
Cite 1 - [2014] QSC 30
Cite 2 - [2014] QSC 30
Dut v Caterfare Pty Ltd [2014] FWC 2859
2 citations
Jump To
Cite 1 - [2014] FWC 2859
Cite 2 - [2014] FWC 2859
Herwin v Flexihire Pty Ltd (1995) QGIG 709
2 citations
Jump To
Cite 1 - (1995) QGIG 709
Cite 2 - (1995) QGIG 709
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Shane Rich v Chubb Protective Services (2001) 167 QGIG 159
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 159
Cite 2 - (2001) 167 QGIG 159
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
2 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43

Cases Citing

Case NameFull CitationFrequency
Ingram v State of Queensland [2017] QIRC 1062 citations
1

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