TK v State of Queensland (Queensland Health)
[2024] QIRC 189
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- Unreported Judgment
- TK v State of Queensland (Queensland Health)[2024] QIRC 189
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TK v State of Queensland (Queensland Health)[2024] QIRC 189
TK v State of Queensland (Queensland Health)[2024] QIRC 189
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | TK v State of Queensland (Queensland Health) [2024] QIRC 189 |
PARTIES: | TK (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | TD/2023/67 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 2 August 2024 |
HEARING DATE: | 31 July 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – CAPACITY TO CONDUCT PROCEEDINGS – application for reinstatement – where Applicant filed material that raises serious doubt as to his capacity to conduct proceedings on his own behalf – where Applicant ordered to attend registered consultant psychiatrist for examination – where examination report confirms Applicant lacks capacity to conduct proceedings – procedural fairness considered – stay of proceedings ordered |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 447, s 451 Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 |
CASES: | DR v IU & Ors [2023] QIRC 251 Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167 Kelsey v Logan City Council & Ors (No.7) [2019] QIRC 085 Robertson v McDonald’s Australia Limited (No 2) [2022] ICQ 11 |
Reasons for Decision
Introduction
- [1]On 8 June 2023, TK (‘the Applicant’) filed an application for reinstatement in the Queensland Industrial Commission Registry (‘the Registry’).
- [2]The matter underwent conciliation before another member, but it failed to resolve. The matter was subsequently referred to me for hearing.
- [3]A directions order was issued on 26 February 2024 that required, inter alia, the Applicant to file a Statement of Facts and Contentions (‘SOFC’).
- [4]The Applicant, who is unrepresented in the proceeding, filed his SOFC on 19 April 2024. The SOFC was not in the proper form but more particularly, it contained extensive content that alleged persecutory conduct by certain colleagues of the Applicant and various satanic references.
- [5]The Respondent emailed the Registry seeking a direction addressing the defects in the SOFC. A mention was held on 1 May 2024 at which I communicated to the parties that the content of the Applicant’s SOFC gave me serious cause for concern that the Applicant may lack capacity to conduct proceedings on his own behalf. Noting that my concerns could not be addressed without independent medical evidence, discussion ensued as to how that might be obtained.
- [6]The Applicant was wholly open to submitting to medical examination but, as he was still unemployed, he indicated he lacked resources to fund a report. It was then put to the Respondents that they might consider consenting to subsidising the cost of a report.
- [7]It ought to be noted the SOFC caused me significant cause to suspect that the Applicant lacked capacity to properly conduct proceedings on his own behalf. As such, in the absence of independent medical verification of capacity, I was unprepared to allow the matter to proceed. To be clear, I was unprepared to allow the matter to proceed while I held concerns about his capacity because I needed to ensure the Applicant could have an opportunity to lucidly present his case. But it is not for the Commission to simply declare a litigant unfit on a mere suspicion that they are. Fairness demands that any such conclusion, and any order that follows it, must be supported by independent expert evidence from a properly qualified registered medical practitioner.
- [8]In the circumstances where the Applicant was unable to meet the cost of providing a medical report an unfortunate impasse arose. As an impecunious litigant unable to comply with such a request, the Applicant was liable to suffer significant injustice until the impasse was broken. Given the situation, the Respondent, in a proper discharge of the model litigant principles and other professional duties, consented to pay for the report.[1]
- [9]Following the Respondent’s consent to pay the cost of the medical report, directions dealing with the process were issued by consent and the Applicant attended upon an appointment with Dr Igor Shvetsov, a registered consultant psychiatrist, for examination. Dr Shvetsov was briefed with a copy of the Applicant’s SOFC.
The medical evidence
- [10]The Registry received a copy of Dr Shvetsov’s report (dated 15 July 2024) on 25 July 2024 (‘the report’). The report concludes with a diagnosis of ‘Delusional Disorder’ and a differential diagnosis of ‘Schizophrenia’. The salient portions of the report read as follows:
(The Applicant) is not fit to conduct the proceeding, due to his judgment being affected by a mental illness. He does not fulfil first criteria undertaking the nature and effect of decisions about the matter, because his decisions are based on his delusional perception of events and he would not be able to productively participate in the debate of his claim. While (the Applicant’s) interpretation appears logical to him, the interpretation of the events would be in discord with the judgment of the general public.
…
I believe the (the Applicant) has capacity to provide instruction to his representative/agent during the trial, given the representative is well familiar with the case and is aware of (the Applicant’s) interpretation of the events, which could be different from the judgment of general public.
…
(The Applicant) has a family history of psychotic illness. He presented as a person of above average intelligence, who was quite successful with his studies and work career up to the moment when he developed persecutory delusional ideations, most likely, from 2008 that gradually progressed over the years… The delusional believes (sic) includes being unfairly treated at work, being subjected to interfering with his thinking and in this way compromising his performance. Current delusions involve being followed by his work colleagues or strangers, being pushed and shoved at the public places, and his life being in danger. His written production demonstrates disjointed, tangential thinking, ideas of reference and symbolic thinking (left side of his body, numeric symbolism). There is very limited insight of his condition. It appears that the delusional thinking is the major driver of his decision making, structuring his life’s activity of daily living.
(Emphasis added)
- [11]Having read the report I formed a view that the Applicant did not have capacity to conduct proceedings on his own behalf. In particular, noting the diagnosis and the impact it has on the Applicant’s decision making, I consider it would be grossly unfair to the Applicant to permit him to squander his right to be heard on the reinstatement application while he so plainly lacks capacity.
Legislative power to stay proceedings
- [12]Section 447 of the Industrial Relations Act 2016 (Qld) (‘IR Act’) relevantly provides:
447 Commissions functions
- The commission functions include the following –
...
- dealing with –
- applications brought under this Act or another Act, including for public service appeals; or
- claims relating to dismissals.
- The commission must perform its functions in a way that –
- is consistent with the objects of this Act; and
- avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
(Emphasis added)
- [13]Section 451 of the IR Act provides:
451 General powers
- The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- Without limiting subsection (1), the commission in proceedings may—
- give directions about the hearing of a matter; or
- make a decision it considers appropriate, irrespective of the relief sought by a party; or
- make an order it considers appropriate.
(Emphasis added)
- [14]
[24] It is accepted that Ms Kelsey has a prima facie entitlement to have her action tried within the ordinary course of the business of the Commission. It follows that it is a serious matter to interfere with that entitlement. The granting of a stay requires justification on proper grounds. The onus is on the Second to Ninth Respondents to demonstrate that it is just and convenient that Ms Kelsey 's ordinary rights should be interfered with. As stated by Hayne J in Australian Securities Commission v Cavanagh:
In my view it is therefore clear that unless reason is shown to the contrary, a plaintiff is entitled to have its action tried in the ordinary course of the procedure and business of the court and that it is a grave matter to interfere with that entitlement by a stay of proceedings, the grant of which would require justification on proper grounds. In the end the task is one of the balancing of justice between the parties taking account of all relevant factors and adjudging the case on its own merits.
(Emphasis added and citations omitted)
- [15]
The Commission as currently constituted has previously observed that an order staying the right to pursue legal proceedings represents a denial of a fundamental right to seek remedy for a grievance. The consideration of an application to either dismiss or stay proceedings must involve careful and thorough consideration of the relative prejudice to each party, and the Commission ought to strive to achieve an outcome that best serves the interests of justice.
The Commission is vested with the statutory powers to control proceedings, including dismissing proceedings or by imposing a stay on proceedings. The power extends to circumstances where the interests of justice require a stay of proceedings.
- [16]Neither party has sought a stay of proceedings in this matter. Section 451 of the IR Act allows the Commission in proceedings to make a decision it considers appropriate, irrespective of the relief sought by a party or an order it considers appropriate.[5]
Consideration
- [17]In circumstances where I am now in possession of compelling expert evidence confirming the Applicant’s lack of capacity to conduct proceedings on his own behalf, I am satisfied that the interests of justice are best served by staying the proceedings.
- [18]In coming to this conclusion, I am faced with a further dilemma in that I am now no longer able to act, with any confidence, on any submission made by the Applicant. This would include hearing from the Applicant as to why I should not stay the proceedings. This situation will persist until such time as the evidence of his incapacity that is contained in the report is displaced.
- [19]
The report provides extensive details confirming DR’s significant cognitive impairment. As such, it raises a serious concern for the Commission that DR lacks capacity to conduct these proceedings on his own behalf. Given the report is dated October 2021, it is open to conclude that (in the absence of evidence to the contrary) DR has been lacking in capacity since before he filed these proceedings and that he continues to lack capacity. Until the concerns of the Commission are displaced, fairness to DR requires the matter to be stayed.
Ordinarily, a party facing the prospect of a stay of their proceedings would have an opportunity to be heard on the matter. However, in the circumstances of this case, the Commission finds itself in the difficult position of being privy to the report that discloses DR’s serious cognitive impairment in clear and compelling terms. In those circumstances, not only is there little utility in seeking submissions on a stay from DR, but the exercise in doing so would itself be inherently unfair.
The only avenue open to ensure fair and practical conduct of these proceedings at this point is to stay the application until such time as DR can displace the concerns about his capacity. In the circumstances I propose to stay the matter for a period of 12 months from the date of this decision.
- [20]I consider the views I expressed in DR are wholly applicable in this matter. Having considered the report I am of the view that the only appropriate step is to stay the proceedings.
- [21]A mention was held on 31 July 2024 to inform the Applicant of my decision. The Respondent did not impugn the proposed order to stay the proceeding. The Applicant enquired about whether representation might alter my view, and I expressly declined to respond.[7] The Applicant will have the benefit of these reasons to better understand the decision I have made and any options open to him for the future conduct of his application.
Non-publication of names
- [22]With further reference to DR, I consider it proper to anonymise the Applicant in these proceedings. In DR, I concluded:[8]
For completeness, I would add that I consider it appropriate to make orders anonymising the parties to these proceeding. In light of the content of the report disclosed above and the serious question it raises as to the capacity of DR (dating back to the period before his application was filed in the QHRC), caution ought to be exercised to avoid unnecessary or unwarranted public disclosure of these matters.
It is one thing to rigorously apply the rule of open justice to a competent litigant possessed of all capacity and free will.[9] It is another thing again to impose the rule on a person who, possibly afflicted by a serious mental illness, started a proceeding they may not have started had they been unimpaired by mental illness.
- [23]For all of the same reasons set out immediately above, I consider the Applicant is entitled to his privacy in these circumstances.
Order
- [24]For all of the above reasons, I make the following Order:
- Pursuant to s 451(2)(b) and (c) of the Industrial Relations Act 2016 (Qld) the proceeding be stayed until 31 July 2025;
- The proceeding be listed for Mention on a date to be advised that is not before 31 July 2025;
- Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld) the name of the Applicant in the proceeding is not to be published; and
- The parties have liberty to apply.
Footnotes
[1] See Qld Government ‘Model Litigant Principles’ (in particular ‘not seeking to take advantage of an impecunious litigant’). See also Australian Solicitors Conduct Rules, paragraph 3, the Duty to the Court and the administration of justice.
[2] [2019] QIRC 085.
[3] Ibid, [24].
[4] [2023] QIRC 251.
[5] Industrial Relations Act 2016 (Qld) s 451(2)(b).
[6] [2023] QIRC 251, [18]–[20].
[7] Robertson v McDonald’s Australia Limited (No 2) [2022] ICQ 11.
[8] [2023] QIRC 251, [21].
[9]Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167, [21]–[24].