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  4. Pioch v State of Queensland (Department of Education) - [2024] QIRC 108

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Pioch v State of Queensland (Department of Education)[2024] QIRC 108

Pioch v State of Queensland (Department of Education)[2024] QIRC 108

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pioch v State of Queensland (Department of Education) [2024] QIRC 108

PARTIES:

Pioch, Nicole Ella

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/132

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

10 May 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

CATCHWORDS:

PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appellant failed to comply with directions orders – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – where appeal is dismissed

LEGISLATION AND

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 452

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45

CASES:

Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

Cooper v Hopgood & Ganim [1998] QCA 114

House v R (1936) 55 CLR 499

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

Quinlan v Rothwell & Anor [2001] QCA 176

Seymour v Workers' Compensation Regulator [2017] QIRC 061

Reasons for Decision

Background

  1. [1]
    On 11 July 2023, Ms Nicole Ella Pioch (the Appellant) filed an Appeal against the decision of Mr Jeff Shelden, Director, Recruitment and Employment Review, Engagement and Talent Acquisition, People Branch of the Department of Education (the Respondent), refusing the Appellant's request to be permanently employed in a position at the higher classification level (the Decision).
  2. [2]
    The Appellant's permanent substantive position with Respondent is Senior Health and Safety Consultant (AO6), HWS Projects, Safety Wellbeing & Capability, People Branch.
  3. [3]
    On 11 January 2021 until 8 July 2022, the Appellant performed in the Principal Project Officer position (AO7), Safety Wellbeing & Capability, People Branch, on the Occupational Violence and Aggression Prevention Strategy. That project that ended on 30 June 2022.
  4. [4]
    From 11 July 2022, the Appellant had commenced in the position of Principal Project Officer position (AO7) within Safety Framework Review, Safety Wellbeing & Capability, People Branch. The Appellant's higher classification position contract had an end date of 30 June 2023.
  5. [5]
    The Appellant made a request on 2 June 2023 under s 120 of the Public Sector Act 2022 (Qld) (PS Act) and cl 6 of Directive 03/23: Review of acting or secondment at higher classification level (the Directive), asking the chief executive (or relevant delegate) to employ her in the higher classification level on a permanent basis.
  6. [6]
    On 29 June 2023, Mr Shelden refused the Appellant's request to be permanently appointed to the higher classification level under s 120 of the PS Act the Directive. That is the Decision subject of this Appeal.

The Directions Order

  1. [7]
    On 18 July 2023, I issued a Directions Order to progress this Appeal in which I ordered the following:
  1. That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than five pages in length and any relevant attachments) in further support of the Appeal Notice by 4.00 pm on 25 July 2023.
  1. That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00 pm on 1 August 2023.
  1. That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00 pm on 8 August 2023.
  1. Unless any party files an application by 4:00pm on 9 August 2023 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).
  1. [8]
    Pursuant to the 18 July 2023 Directions Order, the Appellant's submissions in support of her Appeal Notice were due by 25 July 2023. No submissions were filed with the Industrial Registry by that date, no explanation for the non-compliance was provided and no extension was sought.
  2. [9]
    On 27 July 2023, the Respondent emailed the Industrial Registry and the Appellant advising the following:

On 11 July 2023, the Commission issued the Directions Order requiring the Appellant to file in the Industrial Registry and serve on the Respondent, written submissions in further support of the Appeal Notice by 4:00pm on 25 July 2023.

The Respondent respectfully seeks notification if the Appellant has filed written submissions in further support of the Appeal Notice.[1]

  1. [10]
    On 27 July 2023, the Industrial Registry responded by advising, "The Appellant has not filed their written submissions." The Industrial Registry copied the Appellant into that correspondence.
  2. [11]
    In accordance with the 18 July 2023 Directions Order, the Respondent filed and served its written submissions on 1 August 2023.
  3. [12]
    Pursuant to the 18 July 2023 Directions Order, the Appellant's submissions in reply to the Respondent's submissions, in any, were due by 8 August 2023. No submissions were filed with the Industrial Registry by that date and no extension was sought.
  4. [13]
    In email correspondence dated 17 October 2023, I advised the parties through the Industrial Registry:

A Directions Order was issued on 18 July 2023 directing Ms Pioch to file submissions in support of her Appeal Notice. That direction has not been complied with. Further, no communication was received from Ms Pioch requesting an extension of time.

In accordance with the Directions Order, the Respondent filed their submissions within the required timeframe. I note that the date for Ms Pioch’s reply submissions to be filed has now passed. The two points of non-compliance with Directions combined with a lack of communication with the Industrial Registry seeking an extension of time would enliven the question as to why this appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

Please find attached a Directions Order issued today at the hand of Industrial Commissioner McLennan. If Ms Pioch does not intend to proceed with the Appeal, a Form 27 Request to discontinue proceeding should be filed and can be accessed here: Forms | Queensland Industrial Relations (qirc.qld.gov.au).

  1. [14]
    Attached to that email correspondence, I issued a Directions Order dated 17 October 2023, requiring submissions as to why this Appeal ought not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Tribunal Rules).
  2. [15]
    In the 17 October 2023 Directions Order, I ordered as follows:
  1. That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) as to why the Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 4:00pm on 24 October 2023.
  1. That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions in response to the Appellant's submissions (of no more than three pages in length and any relevant attachments) by 4:00pm on 31 October 2023.
  1. That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than one page in length and any relevant attachments) in reply to the submissions of the Respondent, by 4:00pm on 7 November 2023.
  1. Unless any party files an application by 4:00pm on 8 November 2023 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.
  1. [16]
    Pursuant to the 17 October 2023 Directions Order, the Appellant's submissions as to why her appeal should not be dismissed under r 45 of the Tribunal Rules were due by 24 October 2023. No submissions were filed with the Industrial Registry by that date and no extension was sought.
  2. [17]
    In accordance with the 17 October 2023 Directions Order, the Respondent filed and served its written submissions on 31 October 2023.
  3. [18]
    Pursuant to the 17 October 2023 Directions Order, the Appellant's submissions in reply to the Respondent's submissions, if any, were due by 7 November 2023. No submissions as to why the appeal should not be dismissed were filed with the Industrial Registry by that date and no extension was sought.

Submissions

  1. [19]
    The Respondent filed submissions on 31 October 2023 in accordance with the 17 October 2023 Directions Order. I have carefully considered the submissions made and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to the key arguments in my consideration.

Relevant Principles

  1. [20]
    Rule 45 of the Tribunal Rules:

45  Failure to attend or to comply with directions order

  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  2. (b)
    the party fails to attend the hearing or conference.
  1. (2)
    This rule also applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  2. (b)
    the party fails to comply with the order.
  1. (3)
    The court, commission or registrar may—
  1. (a)
    dismiss the proceeding; or
  2. (b)
    make a further directions order; or
  3. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  4. (d)
    make orders under paragraphs (b) and (c).

Consideration

  1. [21]
    In the 17 October 2023 Directions Order, the parties were directed to make submissions with respect to r 45 of the Tribunal Rules.
  2. [22]
    Section 452(1)(a) of the Industrial Relations Act 2016 (Qld) empowers the Commission to exercise its power on its own initiative. I will now consider whether I should exercise my discretion to dismiss the proceeding pursuant to r 45(3)(a) of the Tribunals Rules.
  3. [23]
    The power under r 45(3)(a) of the Tribunal Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."[2] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[3]
  4. [24]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[4] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunal Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):

As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[5]

  1. [25]
    Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[6] and Seymour v Workers' Compensation Regulator,[7] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[8]
  2. [26]
    The Appellant's default is certainly continuing, given her ongoing failure to comply with the substantive requirements outlined in the Directions Orders. The Appellant has even failed to provide an informal explanation of delay and instead has blatantly disregarded the Directions Orders.
  3. [27]
    The Appellant has not filed any material or sent any correspondence to the Industrial Registry since the initiation of this Appeal on 11 July 2023.
  4. [28]
    On several occasions, the Appellant was issued with correspondence from the Industrial Registry and copied into correspondence from the Respondent that ought to have served as a reminder of her obligations under the Directions Orders and a prompt to action the requirements.
  5. [29]
    The Appellant's default imposes an unacceptable burden on the Respondent, as it is unable to meaningfully respond to the appeal without understanding the Appellant's case.
  6. [30]
    The Appellant's continuous disregard for timelines has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondent's detriment. This is evidenced by the fact that the Appellant has not responded to any correspondence sent to her by the Commission throughout the duration of this matter. For that reason, the Appellant has already demonstrated a complete disregard for the Commission's time and resources and even failed confirm an intention to proceed with this matter.
  7. [31]
    Noting that the Appellant has failed to comply with two sets of Directions Orders, the cumulative effect of her non-compliance is substantial enough to satisfy me that the Appellant is either unwilling to comply or for some reason is unable to do so and as a result, the Respondents' case is prejudiced.
  8. [32]
    In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunal Rules, as set out in r 6:

6Purpose 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.

  1. [33]
    The terms 'just' and 'expeditious' may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (emphasis added):

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.[9]

  1. [34]
    While his Honour Thomas JA was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions,[10] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.
  2. [35]
    Time limits are imposed to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with such directions is not consistent with r 6 of the Tribunal Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter. 
  3. [36]
    Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunal Rules to dismiss the Appellant's appeal.

Order

  1. [37]
    I make the following order:

That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

Footnotes

[1]Email from Ms N. Power, Senior Employee Relations Advisor of the Department of Education to the Industrial Registry and the Appellant dated 27 July 2023.

[2]House v R (1936) 55 CLR 499, 503.

[3]Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[4][1990] 98 ALR 200.

[5]Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.

[6][2019] QIRC 028.

[7][2017] QIRC 061.

[8][2019] QIRC 144.

[9]Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[10]See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.

Close

Editorial Notes

  • Published Case Name:

    Pioch v State of Queensland (Department of Education)

  • Shortened Case Name:

    Pioch v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 108

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    10 May 2024

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
Cady v Capital SMART Repairs Australia Pty Ltd [2019] QIRC 144
2 citations
Jump To
Cite 1 - [2019] QIRC 144
Cite 2 - [2019] QIRC 144
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1998] QCA 114
Cite 2 - [1998] QCA 114
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 98 ALR 200
3 citations
Jump To
Cite 1 - (1990) 98 ALR 200
Cite 2 - (1990) 98 ALR 200
Cite 3 - (1990) 98 ALR 200
Public Trustee v Hermann (1968) 88 W.N. Pt 1
1 citation
Jump To
Cite 1 - (1968) 88 W.N. Pt 1
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73
1 citation
Jump To
Cite 1 - [2005] QIC 73
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2001] QCA 176
Cite 2 - [2001] QCA 176
Seymour v Workers' Compensation Regulator [2017] QIRC 61
2 citations
Jump To
Cite 1 - [2017] QIRC 61
Cite 2 - [2017] QIRC 61
Workers' Compensation Regulator v Varga [2019] QIRC 28
2 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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