Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2)
[2022] QIRC 96
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- Unreported Judgment
- Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2)[2022] QIRC 96
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Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2)[2022] QIRC 96
Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2)[2022] QIRC 96
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2) [2022] QIRC 96 |
PARTIES: | Huyghe, Pieter (Applicant) v State of Queensland (Mackay Hospital and Health Service) (First Respondent) AND Bartlett, Daniel (Second Respondent) AND Reasbeck, Philip (Third Respondent) |
CASE NO: | GP/2020/11 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 21 March 2022 |
MEMBER: | Knight IC |
HEARD AT: | On the papers Final submissions filed 2 March 2022 |
ORDER: | The application in existing proceedings filed 7 February 2022 is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – application in existing proceedings seeking leave to file and rely upon affidavits filed out of time – application dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 306 Industrial Relations (Tribunal) Rules 2011 (Qld) rr 6, 56 |
CASES: | Biel v Mansell (No 1) [2006] 2 Qd R 199 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Bushell v Repatriation Commission (1992) 175 CLR 408 Treanor v State of Queensland (Queensland Police Service) [2019] QIRC 146 Fowler v Workers' Compensation Regulator [2019] QIRC 149 House v The King (1933) 48 CLR 565 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QRC 014 Johnson v State of Queensland (Department of Justice and Attorney-General) [2015] QIRC 122 Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Quinlan v Rothwell & Anor [2002] 1 Qd R 647 Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182 Sommerfeld v State of Queensland (Queensland Health) [2021] QIRC 322 Ulowski v Miller (1968) SASR 227 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 |
Reasons for Decision
- [1]This is an application in existing proceedings filed by the substantive applicant, Dr Pieter Huyghe ('the Applicant'), seeking leave to file three affidavits, out of time. The application is opposed by the respondents to the substantive proceedings: the State of Queensland, Dr Daniel Bartlett and Professor Philip Reasbeck (together, 'the Respondents').
Background
- [2]On 10 September 2021, the Applicant filed the affidavit of Dr Neil Alan Barnett Paterson dated 3 September 2021 ('the Paterson Affidavit') and the affidavit of the Applicant dated 7 September 2021 ('the Huyghe Affidavit').
- [3]The Respondents objected to both affidavits being filed.
- [4]Relevantly, at the time the affidavits were filed, Directions were in place which had required the parties to file all affidavits of evidence to be relied upon at hearing by 28 May 2021 at the latest.[1]
- [5]At a Mention on 17 September 2021, I determined that, in circumstances where no application had been made to file the affidavits out of time, they ought to be removed from the file.
- [6]I informed the parties that if the Applicant sought to make such an application, I would consider it after an outstanding application in respect of further disclosure had been determined, the outcome of which may well have resulted in an application to file further materials.
- [7]The Applicant subsequently made attempts to obtain the Respondents' consent to filing the affidavits which was refused. The Respondents note in submissions that when the affidavits were first sought to be filed, no explanation was given for the delay in filing.
- [8]Consequently, the Applicant filed an application in existing proceedings on 7 February 2022, seeking leave to file:
- (a)the Paterson Affidavit;
- (b)the Huyghe Affidavit; and
- (c)a further supplementary Affidavit of the Applicant ('the Further Huyghe Affidavit') containing decisions of the Australian Health Practitioner Regulation Agency ('AHPRA') concerning the Applicant.
- [9]The parties were provided with an opportunity to file submissions in respect of the application.
Relevant Principles
- [10]The Industrial Relations (Tribunal) Rules 2011 (Qld) ('the Rules') relevantly provide:
56 Time for filing affidavits
If an affidavit must be filed within a particular time, an affidavit filed after that time can not be used in evidence unless the court, commission or registrar otherwise decides, with or without conditions.
- [11]
- [12]The factors relevant to considering whether the Commission ought to exercise its power to grant an extension of time are generally well established.[5]
- [13]
- (a)length of the delay;
- (b)explanation for the delay;
- (c)prejudice to the plaintiff if the discretion is not exercised;
- (d)prejudice to the respondent if the discretion is exercised; and
- (e)conduct of the respondent.[8]
- [14]Similar guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,[9] namely, that:
- special circumstances need not be shown, but an application for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension, although the mere absence of prejudice is not enough to justify the grant of an extension; and
- the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[10]
- [15]
Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.[12]
- [16]In making my decision I will be guided by the principles set out above.
The Paterson Affidavit and the Huyghe Affidavit
Length of Delay
- [17]The Applicant first sought to file the Paterson Affidavit and Huyghe Affidavit on 10 September 2021. This equates to a delay of approximately three and a half months after the date in the Directions.
Explanation for the Delay
- [18]The Applicant contends there is a sufficient explanation for the delay in filing the affidavits.[13] He explains the delay in filing the Paterson Affidavit and Huyghe Affidavit is a result of representative error, explaining that once his representative became aware Dr Paterson's report had been annexed to the incorrect affidavit, his representative caused both affidavits to be filed.[14] He contends the issue of delay in filing is outweighed by the materiality of the evidence.[15]
- [19]The Respondents argue an administrative oversight of nearly four months is not a satisfactory explanation for the delay having regard to the experience of the Applicant's representative.[16]
Prejudice to Each Party
- [20]The Applicant submits the purpose of filing the Paterson Affidavit is to adduce Dr Paterson's report dated 19 November 2020.[17] He explains that the report sets out Dr Paterson's expert opinion on an incident on 25 October 2019 ('Case 1') and a medication error made by the Applicant on 13 March 2020 ('Case 2').[18] The Applicant intends to rely on the report to establish that the views purportedly held by the decision-makers for the Respondents were not bona fide because they could not have been held by a reasonable person, and therefore should not be believed.[19]
- [21]Similarly, the Applicant submits the purpose of the Huyghe Affidavit is to adduce the Applicant's evidence regarding Case 1 and Case 2, which also formed the instructions provided to Dr Paterson.[20] Although this evidence is already contained, in part, in affidavits of the Applicant's legal representative, he submits the Huyghe Affidavit is intended to be a statement of fact from his own knowledge, as opposed to statements made on a hearsay basis.[21]
- [22]The Applicant argues that neither the report nor the Huyghe Affidavit are new evidence as the report was inadvertently annexed to an affidavit of the Applicant' already filed in the proceedings,[22] and various parts of the Huyghe Affidavit have already been filed in the affidavits of the Applicant's legal representative.[23]
- [23]He argues the Commission is under a duty to arrive at the correct decision based on the material before it.[24] He submits the information contained in the Paterson Affidavit and the Huyghe Affidavit contain direct evidence and expert opinion bearing on that consideration and, consequently, the interests of justice require the affidavits to be considered.[25]
- [24]The Applicant argues that granting leave to file the affidavits would not have the effect of preventing the Respondents from adequately responding to their content in the course of the proceedings.[26] This is so because the Respondents would have the opportunity to cross-examine Dr Paterson and the Applicant on their evidence and, as the evidence has already been disclosed, it would not take the Respondents by surprise.[27] Further, the Applicant states he would be amenable to the Respondents filing reply affidavits if necessary.[28]
- [25]Moreover, he argues the delay could not reasonably cause any material prejudice to the Respondents in circumstances where they have:
- (a)been on notice about the contents of both affidavits since 7 September 2021;
- (b)had access to the information in the Applicant's Affidavit since as early as 16 June 2020 and 26 August 2020 when parts were filed in the legal representative's affidavits; and
- (c)had access to Dr Paterson's report since 16 April 2021 when it was filed as an annexure to one of the Applicant's earlier affidavits.[29]
- [26]The Respondents contend the application is an abuse of process in that it seeks to relitigate matters already dismissed by the Commission.[30] They submit the issue of whether the affidavits ought to be allowed to be filed was ventilated before, and dismissed by, the Commission on 17 September 2021 when the affidavits were ordered to be removed from the file.[31]
- [27]In removing the affidavits, it was noted the issue could be revisited once the outstanding application in respect of disclosure was determined.[32] The Respondents argue the present application does not rely on any of the new evidence disclosed by virtue of the subsequent decision on disclosure.[33] Nor does it in any way link the late filing of the affidavits to the fresh disclosure.[34]
- [28]The Respondents explain that Dr Paterson's report was commissioned, in part, to respond to a report prepared by Associate Professor Riley which was commissioned after the Applicant commenced the substantive proceedings.[35] They note the Applicant has already sought disclosure of the documents in connection with Associate Professor Riley's report, and this Commission has already ruled such documents to be not relevant.[36] Consequently, the Respondents argue Dr Paterson's report is irrelevant to the matters in dispute and note they do not wish to cross-examine him.[37]
- [29]Although they maintain Dr Paterson's report is not relevant to proceedings, the Respondent argues that should the Commission grant leave for the Applicant to file the Paterson Affidavit, they will be prejudiced by the unreasonable delay in doing so and costs involved in responding.[38]
- [30]Moreover, should the affidavit be allowed, the Respondents submit they would be required to respond by seeking an affidavit at least from Associate Professor Riley.[39] To do so will cause additional cost in the preparation of evidence and amending submissions which they argue should not be imposed on them because of an unreasonable administrative oversight caused solely by the Applicant's representatives.[40]
- [31]With respect to the Huyghe Affidavit, the Respondents note the Applicant already has two earlier affidavits on file dated 16 April 2021 and 28 May 2021.[41] They argue that that the Applicant's evidence could and should have been addressed in either of those affidavits.[42] In any event, the Respondents submit that any discrepancy between his filed affidavits, and the information contained in affidavits of his representatives, can be adequately dealt with through cross-examination.[43]
- [32]Further, the Respondents reject the Applicant's assertion it does not contain new evidence.[44] Although they acknowledge the representative's affidavits refer to certain events taking place, they submit the Applicant now seeks to provide detailed accounts of these events and additional information in support of his claims.[45] Consequently, if the affidavit is accepted, the Respondents will be put to the additional cost of reviewing their own evidence and obtaining supplementary evidence, which will in turn prejudice their preparations for hearing.[46]
- [33]In reply submissions, the Applicant reiterated his submissions that Dr Paterson's report is material to the substantive proceedings, arguing it provides expert opinion concerning the views of an independent person with respect to Case 1 and Case 2.[47] This is relevant to the matters in dispute, he says, because the report considers the validity of Associate Professor Riley's report, and if the Commission only considers Associate Professor Riley's report, it will be prejudiced in reaching the correct decision.[48]
Conduct of Respondents
- [34]The Applicant submits he made attempts on 23 September 2021 and 10 November 2021 to obtain consent from the Respondents to file the affidavits out of time.[49] He submits that in doing so he set out his explanation that the materials are not new evidence and that he considered them to be material to the matters in dispute.[50] By way of letter dated 19 November 2021, the Respondents acknowledged the Applicant's reason for delay, however, they refused to provide their consent.[51]
Consideration – the Paterson Affidavit and the Huyghe Affidavit
- [35]I am not persuaded that either the Paterson Affidavit or the Huyghe Affidavit ought to be allowed. This is so for two reasons.
- [36]Firstly, a delay of approximately three and a half months is evidently a significant amount of time. This is particularly so in circumstances where the explanation for the delay is 'administrative oversight'. While I accept that the Commission has an obligation to receive and consider evidence in the course of making its determination, I note the purpose of the Rules which is provided for in r 6 as follows:
6 Purpose of rules
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.
- [37]
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules...[53]
- [38]The Applicant has been in possession of Dr Paterson's report since November 2020, well before the Directions required affidavits of evidence to be filed. Likewise, the Applicant was in a position to provide his own evidence and availed himself of that opportunity by filing his earlier affidavits of 16 April 2021 and 28 May 2021.
- [39]Secondly, and more importantly, I do not accept Dr Paterson's report is relevant to the substantive proceedings. The Applicant argues the report is material to establishing that the views purportedly held by the Respondents were not bona fide because they could not have been held by a reasonable person.
- [40]The difficulty I have with this submission is that Associate Professor Riley's report was commissioned after the Applicant commenced the substantive proceedings and well after the Respondents made the various complained of decisions.
- [41]As identified by the Respondents, this was the basis on which I refused further disclosure in relation to Associate Professor Riley's report. It is difficult to understand how a further report challenging Associate Professor Riley's report could be relevant in circumstances where I am not persuaded 'his findings are relevant and where the Respondents have confirmed they do not intend to rely on the report in any event.
The Further Huyghe Affidavit
Length of Delay
- [42]The Applicant first sought to file the Further Huyghe Affidavit on 7 February 2022, in the course of filing the present application. This equates to a delay of approximately eight months after the date in the Directions.
Explanation for Delay
- [43]The Applicant contends there is a reasonable and satisfactory explanation for the delay in filing the Further Huyghe Affidavit as the AHPRA decisions annexed to the affidavit were not known, or made available, to the Applicant until 14 January 2022.[54] Consequently, the Applicant submits he could not have complied with the Direction to file affidavits of evidence by no later than 28 May 2021.[55]
- [44]In any event, in reply he argues the delay is through no fault of his own and the materiality of the decisions outweighs any issue of delay.[56]
Prejudice to Each Party
- [45]The Applicant submits the purpose of the Further Huyghe Affidavit is to adduce two decisions made by AHPRA.[57] The Applicant explains that on 25 November 2021 and 13 January 2022, AHPRA made two decisions concerning the Applicant's conduct in relation to Case 1 and Case 2.[58] These decisions are relevant to allegations in the substantive proceedings in relation to whether the Applicant was the assigned supervisor for Case 1, and whether he failed to make adequate disclosure in relation to Case 2.[59]
- [46]These decisions, he argues, are highly material in that they are crucial to determining key points of fact in the substantive proceedings, without which the Commission will be unable to make an informed decision.[60]
- [47]As the Further Huyghe Affidavit was not filed with the application, the Respondents submit they are prejudiced in making a meaningful submission.[61] In any event, they argue the decisions of AHRPA are irrelevant to the matters in dispute.[62] They submit AHRPA is an external body concerned with the Applicant's medical scope of practice, whereas the substantive proceedings concern the Applicant's conduct as an employee of Queensland Health.[63]
- [48]In reply submissions, the Applicant denies the AHRPA decisions are irrelevant, arguing the matters considered by AHPRA are the same matters the subject of the substantive proceedings.[64] He also notes AHPRA's involvement is a direct consequence of the Second Respondent notifying the organisation of the Applicant's conduct in relation to Case 1 and Case 2.[65] Further, the Applicant notes he has now provided copies of the AHRPA decisions to the Respondents by way of further disclosure.[66]
Conduct of Respondents
- [49]Unlike the Paterson Affidavit and the Huyghe Affidavit, it appears the Applicant did not attempt to seek the consent of the Respondents before seeking to file the Further Huyghe Affidavit.
Consideration – the Further Huyghe Affidavit
- [50]I accept the Applicant's submissions with respect to his reasons for not filing the Further Huyghe Affidavit within time. Parties plainly cannot be expected to file material not in their possession or control, or not yet in existence. Further, I do not consider the delay in filing the affidavit after the AHPRA decisions came into the Applicant's possession unreasonable in circumstances where I had already indicated to the parties that I would consider the issue of further evidence after the outstanding disclosure issue had been determined.
- [51]However, as with the Paterson Affidavit and Huyghe Affidavit, I am not persuaded the AHPRA decisions are relevant to my consideration in the substantive proceedings.
- [52]In the substantive proceedings, the Applicant must first prove that the Respondents took adverse action against him and that he had exercised a workplace right. From that point, it is presumed the adverse action is taken for the proscribed reason, unless the Respondents prove that their reasons did not include a proscribed reason.[67]
- [53]The role of the Commission, thereafter, is to assess the reasons of the First to the Third Respondents for taking certain types of action in relation to the Applicant's employment, during the relevant period.
- [54]While it may be the case that AHPRA has made findings that are, in part, supportive of the Applicant, these are decisions of a separate external body considering somewhat different issues.
Conclusion
- [55]For the reasons set out above the application is dismissed.
- [56]I order accordingly.
Order
The application in existing proceedings filed 7 February 2022 is dismissed.
Footnotes
[1]Directions 2, 3 and 4 of the Further Directions Order issued 12 April 2021.
[2]Breust v Qantas Airways Ltd (1995) 149 QGIG 777, 778.
[3]Ulowski v Miller (1968) SASR 227, 280 ('Ulowski').
[4]House v The King (1933) 48 CLR 565, 503; Biel v Mansell (No 1) [2006] 2 Qd R 199, 207.
[5]Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129, [3]-[5]; Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182, [31]-[32].
[6]Ulowski (n 3).
[7]Ibid 280.
[8]Ibid.
[9](1984) 3 FCR 344.
[10]Ibid 348-349.
[11](1968) 88 WN (Pt 1) NSW 405.
[12]Ibid 412, endorsed by the Commission in Treanor v State of Queensland (Queensland Police Service) [2019] QIRC 146, [96].
[13]Applicant's Submissions filed 23 February 2022, [23].
[14]Ibid [14].
[15]Ibid [15].
[16]Respondents' Submissions filed 28 February 2022, [22].
[17]Applicant's Submissions filed 23 February 2022, [9].
[18]Ibid [8].
[19]Ibid [9].
[20]Ibid [12].
[21]Ibid.
[22]Ibid [10], referring to the affidavit of the Applicant filed 16 April 2021.
[23]Ibid [13], referring to various exhibits to the affidavits of Annie Louise Smeaton filed 16 June 2020 and 26 August 2020.
[24]Ibid [16], citing Bushell v Repatriation Commission (1992) 175 CLR 408, 425; Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988.
[25]Ibid [17], citing Fowler v Workers' Compensation Regulator [2019] QIRC 149, [48].
[26]Ibid [21]-[22], citing Johnson v State of Queensland (Department of Justice and Attorney-General) [2015] QIRC 122.
[27]Ibid [21].
[28]Ibid [24].
[29]Ibid [23].
[30]Respondents' Submissions filed 28 February 2022, [19].
[31]Ibid.
[32]Ibid [17].
[33]Ibid [19].
[34]Ibid.
[35]Ibid [25].
[36]Ibid [26]-[27] citing Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QRC 014, [57]-[61].
[37]Respondents' Submissions filed 28 February 2022, [24].
[38]Ibid [21].
[39]Ibid [28]-[29].
[40]Ibid [29].
[41]Respondents' Submissions filed 28 February 2022, [32].
[42]Ibid.
[43]Ibid [33].
[44]Ibid [34].
[45]Ibid [35].
[46]Ibid [36].
[47]Applicant's Reply Submissions filed 2 March 2022, [2].
[48]Ibid [3].
[49]Applicant's Submissions filed 23 February 2022, [22].
[50]Ibid.
[51]Ibid.
[52][2002] 1 Qd R 647.
[53]Ibid [29], cited in Sommerfeld v State of Queensland (Queensland Health) [2021] QIRC 322.
[54]Applicant's Submissions filed 23 February 2022, [27].
[55]Ibid.
[56]Applicant's Reply Submissions filed 2 March 2022, [10].
[57]Applicant's Submissions filed 23 February 2022, [25].
[58]Ibid.
[59]Ibid.
[60]Ibid [28].
[61]Respondents' Submissions filed 28 February 2022, [37].
[62]Ibid [38].
[63]Ibid.
[64]Applicant's Reply Submissions filed 2 March 2022, [4].
[65]Ibid.
[66]Ibid [9].
[67]Industrial Relations Act 2016 (Qld) s 306.