Naidoo v George[2016] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   On 13 April 2016 an application was lodged by Dr Navin Naidoo (Dr Naidoo) for an injunction pursuant to the Public Interest Disclosure Act 2010 (PIDA).

2. [2]
   The injunction was being sought to prevent further reprisals said to be envisaged by s 48 of the PIDA and which had caused Dr Naidoo a detriment within the meaning of the Industrial Relations Act 1999 (IR Act).

3. [3]
   The outcome sought (at paragraph 2 of the application) was:

"(a) That Dr Preety George be ordered to desist from taking any further reprisals against Dr Navin Naidoo.

2. (b)
   That Dr Preety George be ordered to retract the allegation she has made about Dr Navin Naidoo's safety to practice as a doctor.

3. (c)
   That Dr Preety George be ordered to retract the statement that Dr Navin Naidoo's conduct at the time in question, breached the threshold for mandatory notification in terms of the Health Practitioner Regulation National Law Act 2009.

4. (d)
   That a finding be made as to whether Dr Preety George's conduct constitutes a reprisal as envisaged by the Public Interest Disclosure Act 2010 Qld."

4. [4]
   On 21 April 2016 correspondence from the Crown Solicitor (representing the interests of Dr Preety George (Dr George)) was forwarded to the Industrial Registrar in which it was recorded that:

5. [5]
   A directions hearing was held in Brisbane on 22 April 2016 where upon it was determined that a hearing of the jurisdictional issues would be held at the Gympie Court House on 7 June 2016 with the following directions issued:

6. [6]
   On 6 May 2016 Dr George lodged with the Industrial Registrar a formal application to dismiss proceedings in the substantive application.  The relief sought was as follows:

Applicant (Strike out Application) ‑ Written Submissions

7. [7]
   The substantive application had purportedly been lodged pursuant to s 48 of the PIDA which provides:

8. [8]
   Section 48 of the PIDA permits an employee to apply to the QIRC for injunctive relief in relation to a reprisal.  Dr Naidoo as a medical practitioner, is an employee within the meaning of s 5(a) and (b) of the IR Act and prima facie is a person who may apply for an injunction under s 48 of the PIDA.

9. [9]
   The substantive application did not identify any breach for the purposes of s 48(1)(b) of the PIDA.

10. [10]
    Dr George had been employed by the Sunshine Coast Hospital and Health Service (SCHHS) since 2008 and in the period from the commencement of her employment and until June 2012 was a work colleague of Dr Naidoo at the Gympie Hospital.  Dr George remains in the same employment.

11. [11]
    On 12 December 2012 Dr George made a notification to AHPRA regarding the alleged inappropriate referral of a patient to the Gympie Hospital in August 2012 by Dr Naidoo in his capacity as the patient's treating medical practitioner.  The notification raised concerns about Dr Naidoo's "professional practice" as a medical practitioner.  AHPRA in April 2013 determined that the notification was not one for acceptance advising there would be no further action taken by them in respect of the notification.

12. [12]
    Dr George had not retracted her notification to AHPRA and despite the notification being determined as not one for acceptance her refusal to retract is being characterised as ongoing reprisal action which has caused and continues to cause Dr Naidoo to suffer a detriment.  That detriment has been identified as the requirement to disclose to any future prospective employer.

13. [13]
    The subject matter of the application for injunctive relief was said to largely replicate subject matter contained in a discrimination complaint against the State of Queensland and Dr George to the ADCQ by Dr Naidoo on 10 September 2015.  The alleged reprisals in the discrimination application were largely identical to those of District Court proceedings commenced by Dr Naidoo in 2013 against the State of Queensland and Dr George.  The ADCQ lapsed the complaint on 19 February 2016 on the basis that the compliant was misconceived or lacking substance.

14. [14]
    Since June 2012 Dr George had not worked in the same workplace as Dr Naidoo and since December of that year when the notification was made to AHPRA Dr George had not:

• raised any issues or complaints with Dr Naidoo, the SCHHS or with any other person regarding his conduct; or
• had any contact or involvement with Dr Naidoo, other than as a respondent to his District Court and ADCQ legal proceedings.

Dr George was not aware of any outstanding allegations, complaints, investigations or disciplinary processes on foot against Dr Naidoo.

15. [15]
    The orders being sought by Dr George in these proceedings were to strike out or dismiss the substantive application pursuant to s 274(2) or alternatively s 331(b)(ii) of the IR Act.  Section 274 provides:

16. [16]
    With regards to s 274(2) of the IR Act, there is a power conferred on the QIRC to dismiss an application where the QIRC considers that the application is one that might not succeed on any view of the facts or law.  Authorities supporting this argument were:

• Department of Corrective Services v The Queensland Public Sector Union of Employees^[1]; and
• State of Queensland (Metro South Hospital and Health Service) v Misiura^[2].

17. [17]
    The substantive application lodged with the QIRC pursuant to s 48 of the PIDA was an "industrial cause" for the purposes of the IR Act which allows for the operation of s 331 of the Act to be invoked.

18. [18]
    Previously the QIRC had noted the lack of authority as to the meaning of the term "public interest" in s 331 of the IR Act, see Agforce v AWU^[3].  However the High Court of Australia in the matter of O'Sullivan v Farrer^[4] had determined the expression "in the public interest" to mean:

"Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view'."

The reasoning in O'Sullivan had subsequently been applied in various judicial decisions including by the QIRC in:

• State of Queensland (Queensland Fire and Emergency Services) v United Firefighters' Union of Australia, Union of Employees, Queensland^[5]; and
• State of Queensland v Shankar^[6].

19. [19]
    In the context of the previously mentioned legislative provisions and judicial reasoning the QIRC should exercise its power under s 274(2) or s 331(b)(ii) of the IR Act to strike out or dismiss the substantive application in its entirety.  The QIRC does not have the jurisdiction to make orders as sought by Dr Naidoo.  The substantive application was silent as to the requirements of s 48(1)(b) of the PIDA and as such cannot succeed on any view of the facts or law.

20. [20]
    The lapsing of the ADCQ complaint brought into play s 50 of the PIDA in that it prohibits a person from applying for an injunction about a reprisal under ss 48 or 49 of the PIDA if the person had made a complaint under the Anti‑Discrimination Act 1991 (AD Act) about the reprisal:

"50 No right to apply for injunction if complaint made under the Anti‑Discrimination Act 1991

Despite sections 48 and 49, a person may not apply for an injunction about a reprisal under either of those provisions if the person makes a complaint under the Anti‑Discrimination Act 1991 about the reprisal.

Note ‑

See the Anti‑Discrimination Act 1991, section 144 (Applications for orders protecting complainant's interests (before reference to tribunal))."

21. [21]
    The subject matter of the lapsed complaint (as referred to previously) lodged on 10 September 2015, largely replicated the subject matter in the substantive application.  The lapsed complaint made by Dr Naidoo constituted a complaint under the AD Act was about an alleged reprisal.

22. [22]
    The operation of s 50 of PIDA is applicable to the circumstances of a proceeding such as:

• prevent the Respondent from being entitled to apply for an injunction under section 48 of the PIDA (as the Respondent seeks to do);
• therefore, deprive the Respondent of standing to bring his application; and
• have the effect that the QIRC does not have jurisdiction to hear and determine the application.

23. [23]
    The notification to AHPRA was made and conducted under lawful authority being the Health Practitioner Regulation National Law Act 2009 (HPRNL Act) and was a valid notification pursuant to prescriptive legislation.  The application by Dr Naidoo seeking to have Dr George retract her notifications to AHPRA cannot be the subject of an order by the QIRC.  Accordingly it is submitted that:

• the QIRC is unable to order a person to retract or withdraw a notification to AHPRA; and
• therefore, the QIRC is unable to make the orders sought in paragraphs 2(b) and 2(c) of the Respondent's application.

24. [24]
    The QIRC is also unable to order Dr George to refrain from taking any further reprisals against Dr Naidoo when on his material no further reprisals are established.  Section 48 of the PIDA can only be invoked to restrain a reprisal currently being taken against or contemplated against a person.  There is no evidence or assertion in the substantive application that Dr George is currently taking or proposing to take reprisal action.  Not taking action to retract a complaint or notification cannot constitute a reprisal.

25. [25]
    Dr Naidoo had failed to demonstrate an arguable case to support the orders sought and his application could not succeed on any view of the facts or law.

Respondent (Strike out Application) ‑ Written Submissions

26. [26]
    The application to strike out the substantive application was opposed with issue taken regarding the conduct of the application in respect to the following matters:

• the conduct of the Applicant and the Applicant's legal representatives, whereby the IR Act was wilfully breached and the Applicant failed to be present either telephonically or in person, at the first Directions Hearing, does not allow for any discussion between the parties, and none has been thus far;
• whether the representation of the Applicant by the State and Queensland Health lawyer's constitutes a conflict of interest; and
• a finding as to whether there has been any breach of the Australian Solicitor's Conduct Rules in the conduct of this matter thus far, and whether such in itself constitutes a reprisal.

27. [27]
    The grounds relied upon by Dr George in her application were said to be an attempt to either delay or evade the substantive matter and were opposed with reliance upon the following provisions of the IR Act:

28. [28]
    The fact that Dr George's legal costs were being paid by the taxpayer was inherently unfair and the fact she is indemnified by the State of Queensland was not just unfair but could be argued to be a further reprisal.

29. [29]
    The QIRC was not bound to issue the Orders as sought by Dr George.

30. [30]
    In terms of the argument advanced by Dr George that further proceedings were not necessary or desirable in the public interest, Dr Naidoo submitted:

• this case involves the bullying of a doctor who had raised safety concerns about a public hospital;
• the position of Dr George was as a medical practitioner she raised concerns about Dr Naidoo's "professional practice" yet in spite of AHPRA rejecting her notification she had refused to apologise or retract her statement and further acknowledge that the notification did not meet the criteria for a mandatory complaint; and
• the allegation made by Dr George was never supported by evidence and in her application to strike out the substantive application has continued to make defamatory comments which were seen as a continuing reprisal.

31. [31]
    Dr George was misguided in her opposition to the substantive application lodged pursuant to s 48 of the PIDA.  With regards to the lapsed ADCQ complaint it was the case that complaint was not substantially the same as the substantive matter and had dealt with the unauthorised sourcing of employment documents from Dr Naidoo's employer (Bundaberg Hospital) as a reprisal.

32. [32]
    On the inability of the QIRC to be unable to order Dr George to retract her AHPRA notification the substantive application sought not to retract that notification but to "retract her statement, or clarify that her notification did not meet the criteria for a mandatory notification".

33. [33]
    In summary, Dr Naidoo submitted he was entitled to the protection afforded by the PIDA as he was entitled to his good name and reputation.  No person should be allowed to maliciously harm another's reputation nor should the State target doctors who speak up about safety concerns.

34. [34]
    It was finally submitted that this application should be dismissed and a mediation between the parties ordered.

Applicant (Strike out Application) ‑ Written Submissions in Reply

35. [35]
    Dr George repeated her reliance on submissions filed on 6 May 2016 that included the following:

• "maintain my position that the Respondent's Application cannot succeed on any view of the fact or law, and further, that the Commission has no jurisdiction to hear and determine the Application; and
• continue to seek an order, under section 274(2) of the IR Act or, alternatively, section 331(b)(ii) of the IR Act, striking out or dismissing the Application in its entirety.  I also continue to seek an order that the Respondent pay my costs of and incidental to my Application to Dismiss Proceeding."

36. [36]
    In terms of the assertions made by Dr Naidoo in his written submissions opposing the strike out application issue was taken with numerous aspects of that content.

The QIRC was not bound by the orders sought in Dr Naidoo's application and therefore has jurisdiction to hear and determine the application

37. [37]
    Whilst acknowledging the QIRC has a discretionary power under ss 274(2) and 331 of the IR Act that power must be exercised within the confines of its jurisdiction and there is not an overarching power to hear and accept applications for which it has no jurisdiction.  This proposition has been supported by the Industrial Court and the QIRC in decisions under s 274(2) of the IR Act where it has been considered that applications might not succeed on any view of the facts or law,  See (as previously mentioned):

• Department of Corrective Services v The Queensland Public Sector Union of Employees^[7]; and
• State of Queensland (Metro South Hospital and Health Service) v Misiura^[8].

38. [38]
    In any event it was contended it was not merely the QIRC's lack of power to make the orders sought by Dr Naidoo, but also:

• Dr Naidoo's failure to establish the necessary threshold requirements of s 48 of the PIDA, the provision purportedly under which the substantive application was filed; and
• the effect of Dr Naidoo's lapsed complaint with the ADCQ and s 50 of the PIDA which deprives him of standing to bring his application.

39. [39]
    Accordingly Dr Naidoo's submissions on this point ought to be rejected by the QIRC.

Dr Naidoo's assertion that further proceedings in the substantive application are necessary and desirable in the public interest

40. [40]
    Dr Naidoo asserts that it is "very much in the public interest for this matter to be allowed to proceed" on the basis that the substantive application involves alleged bullying following his reporting of "safety concerns about a public hospital".

41. [41]
    The QIRC could not have a position that the substantive application should proceed in the public interest in circumstances where it had no jurisdiction under the IR Act to hear and determine that application.  This assertion by Dr Naidoo was misconceived and ought to be rejected by the QIRC.

42. [42]
    Further assertions regarding alleged legal representation during these proceedings and an alleged breach of the "solicitors code of conduct" should be rejected for reasons including:

• at no time during these proceedings had a lawyer appeared on Dr George's behalf at the QIRC;
• Dr George's representation at the directions hearing and the hearing in Gympie were by persons who are not lawyers; and
• leave had never been sought for Dr George to be represented by a lawyer during these proceedings.

43. [43]
    The submissions around these assertions were entirely baseless.

Dr Naidoo's assertion that his application satisfies the threshold requirements of s 48 of the PIDA

44. [44]
    The assertion that Dr George had failed to identify any breach of the IR Act for the purposes of s 48(1)(b) of the PIDA was said to be "misguided".  The only person that has the standing to lodge an application for an injunction about an alleged reprisal under s 48 of the PIDA is a person that has an arguable case that the alleged reprisal:

• has caused or may cause detriment to an employee within the meaning of the IR Act (s 48(1)(a) of the PIDA); and
• involves or may involve a breach of the IR Act or an industrial instrument under the IR Act (s 48(1)(b) of the PIDA).

45. [45]
    Dr Naidoo had failed to nominate a particular breach and had not particularised in his submission any alleged breach of the IR Act by Dr George or the SCHHS generally.  Dr Naidoo's allegations were merely stated in vague terms that "numerous" alleged breaches were referred to in his "founding papers".

46. [46]
    Dr George maintains the position that the substantive application had failed to satisfy the threshold requirements of s 48(1) of the PIDA making it impossible for the substantive application to succeed on any view of the facts or law.

Dr Naidoo's assertion that the subject matter of his lapsed ADCQ complaint was not substantially the same as his substantive application

47. [47]
    The assertion by Dr Naidoo that his ADCQ complaint concerned an alleged reprisal arising from the unauthorised sourcing of documentation from his then employer (Bundaberg Hospital) and that the lapsed complaint was not substantially the same as his substantive application was refuted.  Both the complaint and application specified that their subject matter and allegations were primarily referable to the alleged reprisals concerning Dr George's notification to AHPRA on 12 December 2012.  The alleged unauthorised sourcing of documents from the Bundaberg Hospital was only referred to in two of the 15 paragraphs of allegations supporting the ADCQ complaint.

48. [48]
    The operation of s 50 of the PIDA is applicable in the circumstances of these proceedings such as to deprive the QIRC of jurisdiction to hear and determine the substantive application.

Dr Naidoo's assertion regarding Dr George's notification to AHPRA on 12 December 2012

49. [49]
    Dr George did not dispute the terms of the orders sought by Dr Naidoo however his application was misconceived and ought to be rejected as there was no mechanism under the HPRNL Act for a retraction or withdrawal of the notification to AHPRA.  Accordingly the QIRC is unable to order Dr George to retract or withdraw her notification to AHPRA (which includes all statements comprising the notification).

Alleged allegations in Dr Naidoo's submission irrelevant to his substantive application

50. [50]
    Dr Naidoo had made various assertions regarding Dr George's conduct during the proceedings which were said to be irrelevant to the issue of the QIRC's jurisdiction to hear and determine the substantive application and ought to be disregarded by the QIRC.

Dr George's alleged representation and indemnification during these proceedings

51. [51]
    Given that Dr George was not legally represented before the QIRC and the submission offered by Dr Naidoo on these matters was consequently misconceived and ought to be refused by the QIRC.  The assertion that Dr George's indemnification and representation by the State of Queensland was inherently unfair and constitutes a reprisal ought to also be rejected by the QIRC.

Dr George's alleged breach of the IR Act during the Directions Hearing on 22 April 2016

52. [52]
    The assertions regarding this issue were said to be vague and un‑particularised, not supported by any evidence.  Dr George refuted the allegation that her absence from the Directions Hearing on 22 April 2016 was in anyway unlawful or inappropriate and noted that a SCHHS representative appeared at the Directions Hearing on her behalf.  During the Directions Hearing the QIRC:

• confirmed her absence from the Directions Hearing was permitted and appropriate in review of her representation by the SCHHS representative; and
• confirmed her entitlement under s 319(1)(a) of the IR Act to be represented during these proceedings by an agent who was not a lawyer.

Conclusion

53. [53]
    In conclusion, it was submitted:

• Dr Naidoo's substantive application cannot succeed on any view of the fact or law; and
• the QIRC had no jurisdiction to hear and determine the substantive application.

Gympie Hearing ‑ 7 June 2016

Applicant (Strike out Application)

54. [54]
    The Applicant provided a brief history of the substantive application filed by Dr Naidoo on 13 April 2016 and the course of action engaged upon in terms of not only their opposition to the application but the relief sought in the current proceedings to strike out the substantive application.

55. [55]
    There were orders being sought that the injunction application be either struck out or dismissed in its entirety pursuant to s 274(2) of the IR Act and that costs incurred in the strike out application incidental to that application be the subject of an order against Dr Naidoo.

56. [56]
    The grounds relied upon included:

• Dr Naidoo had failed to satisfied the threshold requirements of s 48 if the PIDA;
• the application of s 50 of the PIDA had the effect of depriving Dr Naidoo of standing to bring the substantive application because of the lapsed complaint to the ADCQ; and
• the QIRC lacked the power to order Dr George to retract her notification to AHPRA.

57. [57]
    The substantive application had failed to identify where Dr George had engaged in conduct that constituted a reprisal action therefore not enlivening the threshold requirements of s 48(1) of the PIDA leaving that application unable to succeed on any view of the facts or law.

58. [58]
    In regards to the complaint made to the ADCQ, advice had been provided to Dr Naidoo on 16 February 2016 by the ADCQ under the signature of Julie Ball ‑ Principal Lawyer that stated:

"As Principal Lawyer I have delegation under section 244 of the AD Act to exercise the powers, duties and functions under section 168 of the AD Act.

After careful consideration, I am not satisfied that the complaint is not misconceived or lacking in substance."

59. [59]
    The reasons for decision were set out in some detail including reference to a further submission that had been provided by Dr Naidoo comprising of 282 paragraphs which had included:

• an introduction and identification of issues;
• background leading up to the complaints of the public interest disclosure and his departure from the Gympie hospital; and
• the refusal by Dr George to retract the statement that he was guilty of notifiable conduct being an ongoing reprisal.

60. [60]
    The ADCQ according to the correspondence acknowledged that the effect of a mandatory notification to AHPRA in these circumstances "could" be a detriment in certain circumstances and "might" constitute a reprisal if there was a causal link to the factors relating to the public interest disclosure as set out in s 40 of the PIDA.  However in this case if Dr Naidoo was not able to demonstrate such a causal link to the public interest disclosure and the ADCQ did not have the jurisdiction to deal with the notification of an alleged reprisal because the complainant instituted proceedings in the District Court of the alleged reprisal before making the complaint to the ADCQ.  On this issue the PIDA at s 44 provides:

61. [61]
    The outcome of the court proceedings for reprisal were immaterial to the limits of the ADCQ jurisdiction.

62. [62]
    In conclusion the following was conveyed to Dr Naidoo:

"In my view the complaint material is incapable of establishing any alleged reprisal or unlawful request for information.

In the circumstances, I am of the reasonable opinion that the complaint is misconceived or lacking in substance.  Accordingly, as required by section 168(3) of the AD Act, I give notice that the complaint has lapsed."

63. [63]
    The argument of the Applicant was reinforced with regards to the operation of s 50 of the PIDA prohibiting an application for an injunction about a reprisal if a complaint had previously been made to the ADCQ.  In terms of this particular application it related to the same incident and claim as the ADCQ matter and effectively sought the same outcomes.

64. [64]
    The QIRC in light of the material before these proceedings does not have the jurisdiction to hear and determine Dr Naidoo's application for an injunction nor does a capacity exist for the QIRC to order Dr George to retract her notification to AHPRA which was a notification validly and lawfully made under the relevant Act.  Additionally there was no evidence on offer that Dr George was currently taking or proposing to take reprisal against Dr Naidoo.

65. [65]
    It was appropriate that the QIRC strike out or dismiss Dr Naidoo's injunction action utilising the discretionary power available at s 274(2) of the IR Act with the following authorities said to support such a proposition:

• Department of Corrective Services v The Queensland Public Sector Union of Employees^[9]; and
• State of Queensland (Metro South Hospital and Health Service) v Misiura^[10].

66. [66]
    Finally the QIRC was requested pursuant to s 335 of the IR Act to order Dr Naidoo to pay the Applicant's costs due to the substantive application having been made vexatiously and without reasonable cause.

Respondent (Strike out Application)

67. [67]
    In terms of the argument advanced that the QIRC does not have the jurisdiction to hear and make orders regarding the substantive injunctive application s 3 of the IR Act specifically stated that the principle of the Act was to provide a framework for industrial relations that supports economic prosperity and social justice and further provided at s 3(a) of the IR Act:

"…providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers…".

68. [68]
    The mandatory notification made against him in his professional capacity was said to have the effect of a reprisal and whilst Dr Naidoo's position was not to ask the Commission to have Dr George retract her notification to AHPRA he was seeking some form of acknowledgement that the notice did not meet the criteria for a mandatory notice.  The notice itself was in his opinion vexatious and had a damaging effect on him since 2012.

69. [69]
    Despite the notification made by Dr George to AHPRA being found not to have substance there continued a requirement for ongoing disclosure for matters including:

• applications for employment; and
• medical indemnity insurance.

70. [70]
    On the position of the Applicant that the issues sought to be dealt with in the substantive application had previously been before both the District Court and the ADCQ it was the case that information provided to the ADCQ and contained in the application subject to these proceedings that was similar in nature had been provided to the ADCQ "as an explanatory basis for relief that had been asked, which is not substantially the same as what has been asked for in this Commission".  The issue before the ADCQ had related to his rostering details being accessed without proper authorisation of such disclosure having taken place.

71. [71]
    Since the lapsing of the complaint before the ADCQ several factors had emerged which included:

• continued reprisals in the failure to correct a pay increase due for two years;
• Dr Naidoo had been telephonically advised by a senior medical officer that Dr George had been advised against proceeding with the mandatory notification to AHPRA (Note:  acknowledged by Dr Naidoo as "hearsay information");
• new affidavits suggest Dr George's recall of events to be incorrect; and
• confirmation his employment records were sourced at the Bundaberg Hospital without authorisation.

72. [72]
    The lapsed ADCQ complaint lodged by Dr Naidoo had not considered the material relied upon in the application to the Commission for injunctive relief.

73. [73]
    On the matter of costs it was the position of Dr Naidoo that each party bear their own costs in these proceedings.

Conclusion

74. [74]
    The sole purpose of these proceedings is first and foremost to address an application filed by Dr George on 6 May 2016 that sought to have:

"The 'Application for Injunction Pursuant to the Public Interest Disclosure Act 2010 "Qld' (Matter No. 2016/PID000001), filed by the Respondent in the Commission on 13 April 2016 purportedly under section 48 of the Public Interest Disclosure Act 2010 (Application), to be struck out or dismissed in its entirety."

75. [75]
    The application relied upon s 274(2) of the IR Act as the head of power available to the QIRC to make the findings sought and in the alternative the QIRC had the authority to strike out or dismiss the substantive application in its entirety pursuant to s 331(b)(ii) of the IR Act.

76. [76]
    In applications of this nature it is clear that either ss 274(2) and 331(b)(ii) of the IR Act are relevantly available to the QIRC in the exercise of determining applications to strike out or refrain from hearing an application and were not the subject of challenge by the Respondent to the strike out application.

77. [77]
    The substantive application was lodged by Dr Naidoo with the Industrial Registrar on 13 April 2016 and sought the following decisions:

78. [78]
    In this application Dr Naidoo provided material for the period between May 2009 and November 2011 which related to activities of numerous medical officers (other than himself) and whilst of some interest for the purposes of background did not relate directly to the injunctive relief sought.  There were however a number of pertinent inclusions that went directly to matters for which the strike out application sought the relief specified in the application.  These included:

• 22 June 2012 Dr Naidoo received notification from the Crime and Misconduct Commission (CMC) about the under‑reporting of safety statistics;
• 6 July 2012 Dr Naidoo informed by the Director of the Emergency Department at the Gympie Hospital that he had been issued with a section 123 of the Health Quality and Complaints Commission Act 2006 to provide a statement with regards to safety issues at the Gympie Hospital;
• on or around 26 October 2012 Dr Naidoo became aware that his submission regarding the under‑reporting of safety statistics at the Gympie Hospital had been accepted as a PID;
• in October 2012 Dr Naidoo provided information to the Complaints Resolution Manager at the SCHHS regarding SAC investigations at Gympie Hospital that were later accepted as a PID;
• in December 2012 Dr George made a mandatory notification to AHPRA alleging Dr Naidoo was unsafe to practice as a doctor;
• Dr Naidoo provided a response to AHPRA who ultimately found there were no grounds to support the notification and Dr George's complaint was rejected;
• since the rejection of Dr George's complaint she had refused to retract her statement that Dr Naidoo's conduct constituted notable conduct;
• at no time did Dr Naidoo's conduct exceed the threshold that AHPRA or the profession of medicine would consider worthy of mandatory notification;
• the mere making of a mandatory notification is extremely damaging to a doctor's career, self‑esteem and psychological wellbeing;
• Dr George persists she had a legitimate reason to come to her "erroneous conclusion" and refuses to apologise or retract her statement;
• as a consequence of Dr George's mandatory notification Dr Naidoo has been the subject of unfair notifications and allegations made against him in addition attempts to address the victimisation have been ignored;
• Dr Naidoo took the matter to the District Court in an effort to resolve the issues; and
• Dr George had rejected all attempts to negotiate the issues.

79. [79]
    The reliance on s 48 of the PIDA by Dr Naidoo was not challenged by Dr George in that prima facie he was a person entitled through his status as an employee pursuant to s 5(a) and (b) of the IR Act to make an application for an injunction however the content of the application was strongly refuted and the subject of challenge.

80. [80]
    The primary plank of the application to strike out or dismiss the substantive application emerged in the course of the proceedings as a prohibition on applying for injunctive relief through the Commission as a consequence of the content of s 50 of the PIDA which states:

"No right to apply for injunction if complaint made under the Anti‑Discrimination Act 1991

Despite sections 48 and 49, a person may not apply for an injunction about a reprisal under either of those provisions if the person makes a complaint under the Anti‑Discrimination Act 1991 about the reprisal.

Note ‑

See the Anti‑Discrimination Act 1991, section 144 (Applications for orders protecting complainant's interests (before reference to tribunal))."

81. [81]
    The factual circumstances are that on 10 September 2015 Dr Naidoo lodged a complaint with the ADCQ in which he stated:

82. [82]
    In an attachment to the ADCQ complaint Dr Naidoo provided details of his complaint that included the following content:

• he worked at the Gympie Hospital in the Emergency Department as a Senior Medical Officer;
• he made several reporting's to the SCHHS about safety issues and under‑reporting of safety issues at the Gympie Hospital.  The under‑reporting was accepted as a PID on 12 July 2012;
• in December 2012 Dr George made a mandatory notification against Dr Naidoo to AHPRA that he was unsafe to practice as a doctor;
• on 17 April 2013 following his response to the notification AHPRA officially rejected Dr George's notification stating:

"Your personal opinions and your interaction with Dr George as described in the notification, do not relate to a matter that is a ground for notification.";

• Dr Naidoo sent a "concerns notice" to Dr George requesting her to retract the allegations about his safety to practice as a doctor;
• Dr Naidoo initiated defamation proceedings and reprisal proceedings in the District Court in Gympie;
• the defendants in the District Court matter successfully applied to strike out all aspects of the reprisal leaving only the defamation aspect alive;
• Costs orders were made against Dr Naidoo for an amount in the vicinity of $60,000;
• in an attempt to resolve the matter Dr Naidoo requested a mediation between the parties which was unsuccessful.  Dr George did not attend but was legally represented;
• in November 2014 he received discovered documents which contained sourced information regarding his rosters at the Bundaberg Hospital that were sourced without his approval; and
• the conduct of Dr George and her legal representatives ongoing were said to be continued reprisals for his PID.

83. [83]
    Further regarding the factual circumstances the ADCQ formally advised Dr Naidoo (in correspondence dated 19 February 2016) that his complaint had lapsed.

84. [84]
    Dr George presented argument that the content of the lapsed ADCQ complaint had largely replicated the subject matter in the substantive application before the Commission.  Dr Naidoo on the other hand adopted the position that the lapsed ADCQ complaint was not substantially the same as his application to the QIRC and dealt with the sourcing of his employment details.

85. [85]
    On any reasonable examination of the material relating to the ADCQ complaint and the injunctive application before the QIRC it is evident that the content of both in real terms is significantly similar to the extent they relate to the same reprisal and I am not convinced that they are substantially different matters as portrayed by Dr Naidoo.

Finding

86. [86]
    Dr George has established on the requisite standard of proof (being on the balance of probabilities) that the application for injunction pursuant to the PIDA (Matter No. PID/2016/1) filed by Dr Naidoo with the QIRC on 13 April 2016 under s 48 of the PIDA be struck out on the basis that he has no right to apply for the said injunction pursuant to the provisions of s 50 of the PIDA which states that:

"Despite sections 48 and 49, a person may not apply for an injunction about a reprisal under either of those provisions if the person makes a complaint under the Anti-Discrimination Act 1991 about the reprisal."

Costs

87. [87]
    On consideration of the matter of costs, the power to award costs pursuant to s 335(1)(a) of the IR Act has limitations in that they may only be awarded where it is found that an application had been brought either vexatiously or without reasonable cause.

88. [88]
    In these particular circumstances that whilst the application for injunctive relief brought by Dr Naidoo may have been misconceived, it was not in my view a vexatious claim.  Therefore the order sought for costs is refused.

89. [89]
    I order accordingly.