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Quarrell v State of Queensland (Queensland Health)[2024] QIRC 78

Quarrell v State of Queensland (Queensland Health)[2024] QIRC 78

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Quarrell v State of Queensland (Queensland Health) [2024] QIRC 078

PARTIES:

Quarrell, Tony

Applicant

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

B/2022/89

PROCEEDING:

Application to reopen proceedings

DELIVERED ON:

4 April 2024

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

The application to reopen proceedings is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO REOPEN PROCEEDINGS – application to set aside a notice of discontinuance – where the applicant maintains there is new evidence – whether it is in the interests of justice to reopen proceedings – application is dismissed

LEGISLATION AND INSTRUMENTS:

Industrial Relations Act 2016 (Qld) ss 309, 314, 484, 485

Industrial Relations (Tribunal) Rules 2011 (Qld) r 78

Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 539, 540, 541, 542, 543, 544, 545, 546, 547

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 148

CASES:

Application for Re-opening of TH/2008/4 [2011] QIRC 15

Bell v Simon Blackwood (Workers Compensation Regulator) [2020] QIRC 037

EB v CT (No 2) [2008] QSC 306

Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232

Finborough Investments v Airlie Beach Pty Ltd [1995] 1 Qd R 12

Fowler v Workers' Compensation Regulator [2019] QIRC 149

Myers v State of Queensland (Department of Education) [2021] QIRC 108

Orchid Avenue Realty Pty Ltd (t/a Ray White Surfers Paradise) v Percival (2003) 174 QGIG 643

Seidler v University of New South Wales & Anor [2010] FMCA 887

Reasons for Decision

  1. [1]
    On 26 October 2021, Mr Tony Quarrell signed a request to discontinue a General Protections Application ('GP Proceedings'),[1] whereafter the Industrial Registry issued a 'Notice of Approval of Withdrawal' granting Mr Quarrell leave to withdraw the GP Proceedings.[2]
  2. [2]
    Mr Quarrell now applies,[3] 13 months later, to reopen the GP Proceedings pursuant to s 484 of the Industrial Relations Act 2016 (Qld) ('the Act').
  3. [3]
    Mr Quarrell relies on several grounds in support of his application to reopen, including that he has obtained new material evidence, a breakdown in communication between himself and his former representatives at the time he signed the discontinuance; and his incapacity both before and after signing the discontinuance due to a psychological injury.[4]
  4. [4]
    The State of Queensland (Queensland Health) maintains the materials being relied on as 'new evidence' do not constitute evidence of the question of fact and law in issue in the GP Proceedings he is seeking to reopen. Queensland Health argues that an adequate explanation for Mr Quarrell's inaction for more than a year has not been provided and that there is a real and substantial risk of prejudice if the matter is reopened in circumstances where witnesses may be required to recall events that took place more than seven years ago.[5]

Background – GP Proceedings and Application to Withdraw

  1. [5]
    Mr Quarrell was employed as a Registered Nurse in the Mental Health Ward of the Nambour General Hospital with the Sunshine Coast Hospital and Health Service ('SCHHS') on 25 April 2011.
  2. [6]
    After obtaining a position as a Nurse Practitioner at the Prince Charles Hospital, Metro North Hospital and Health Service ('MNHHS'), Mr Quarrell resigned from his position with SCHHS, commencing in a new role with the MNHHS on 30 April 2018.
  3. [7]
    Mr Quarrell filed a General Protections Application ('GP Application')[6] on 8 March 2021[7] claiming he had been subject to adverse action by the SCHHS both before and following his resignation in 2018.[8]
  4. [8]
    Mr Quarrell was represented by the Queensland Nurses and Midwives' Union of Employees ('QNMU') during the GP Proceedings.[9]
  5. [9]
    Within the GP application, Mr Quarrell submitted that after exercising a workplace right through a relevant industrial instrument where he sought to pursue previously approved tertiary studies, he was subsequently injured in his employment. 
  6. [10]
    The injuries complained of included Mr Quarrell experiencing a delay in completing his studies and being frustrated by representatives of SCHHS in his attempts to secure a position closer to his home, both before and after accepting a role at Prince Charles Hospital.[10]
  7. [11]
    In response, Queensland Health argued there was no workplace right conferred by the relevant award, that it did not engage in adverse action and that any delay to Mr Quarrell's studies arose because of reasonable management action and operational requirements. Furthermore, any recruitment activities that led to Mr Quarrell being unsuccessful or ineligible for available positions at SCHHS during the relevant period were conducted lawfully and in accordance with accepted recruitment processes.
  8. [12]
    On 19 May 2021, Industrial Commissioner Power issued a Directions Order programming the matter to hearing.[11]
  9. [13]
    The Orders were later amended by Commissioner Power on 29 June 2021 and again on 22 October 2021. By October 2021 the parties had filed and exchanged Statements of Facts and Contentions, Lists of Documents and outlines of witness' evidence.
  10. [14]
    The Further Directions Order issued on 22 October 2021, provided both Mr Quarrell and Queensland Health with additional time to file an Outline of Argument in respect of the proceedings.[12]
  11. [15]
    Mr Quarrell signed a Form 27 – Request to discontinue the GP Application on 26 October 2021.[13]
  12. [16]
    The Industrial Registry granted Mr Quarrell leave to withdraw the application on 15 November 2021.

Reasons for reopening

  1. [17]
    Mr Quarrell deposes that he seeks to reopen the GP Proceedings 'due to new evidence', namely:
  • an Independent Medical Examination Report completed by Dr Sanjeev Ranjan, Consultant Psychiatrist, dated 2 December 2021 ('IME Report');[14] and
  • a copy of the reasons for the decision of the Workers' Compensation Regulator, dated 18 November 2022 ('First WCR Decision').[15]

Relevant Principles

  1. [18]
    Sections 484 and 485 of the Industrial Relations Act 2016 (Qld) provides:

484Power to reopen proceedings

  1. On application by a person mentioned in section 485, proceedings may be re-opened  by—

(a)for proceedings taken before the full bench – the full bench; or

(b)otherwise – the commission.

...

485Who may apply to reopen proceedings

An application for reopening of proceedings may be made by—

...

(b)a party to the proceedings; or

...

  1. [19]
    The Commission has a discretionary power to reopen proceedings by application from a party to those proceedings. The power is not subject to any statutory preconditions.[16]
  2. [20]
    In Fowler v Workers' Compensation Regulator ('Fowler'),[17] Merrell DP helpfully identified several guiding principles when determining whether to exercise discretion to reopen a case:

[40]The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2).

[41]In that case his Honour stated:

(a)first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;

(b)secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;

(c)thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be:

  1. the further evidence is so material that the interests of justice require its admission;
  1. the further evidence, if accepted, would most probably affect the result of the case;
  1. the further evidence could not by reasonable diligence have been discovered earlier; and
  1. no prejudice would ensue to the other party by reason of the late admission of the further evidence;
  1. fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice,  require account to be taken of the strain that litigation imposes on personal litigants;  and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation  cannot  always be measured in terms of money  or cured by an order for costs; and
  1. finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.[18]
  1. [21]
    Although the Commission's ability to reopen a proceeding is not inhibited by any conditions and the appellant in Fowler sought leave to reopen his case after the re-examination of his final witness, these principles are relevant when determining whether to exercise my discretion.

Submissions

Mr Quarrell's Submissions

  1. [22]
    In addition to his reliance on new evidence which he asserts is material to the determination of the GP Proceedings, the grounds which Mr Quarrell relies upon as to the reasons for the delay in the application to reopen the GP Proceedings and why leave should be granted include:
  1. a breakdown in communication between himself and his industrial representative, the QNMU, at the time he was suffering a psychological injury;
  2. the withdrawal of the GP Proceedings under duress;
  3. his involvement in a motor vehicle accident in the period after the withdrawal of the GP Proceedings and the onset of a 'major depressive disorder', leading to further delays.
  1. [23]
    In support of the reopening application, Mr Quarrell submits:
  • The interests of justice have not been met as the Queensland Industrial Relations Commission ('QIRC') was denied the opportunity to determine an outcome in the original proceedings;
  • The challenges associated with the period of time that has elapsed since the events referred to in the application took place, are surmountable in circumstances where the events which contributed to the adverse action are documented;
  • Neither the IME report, nor the First WCR Decision existed when Mr Quarrell withdrew from the GP Proceedings, but these documents now provide ample evidence of the unreasonable management action taken by the Respondent;
  • The release of the First WCR Decision has buoyed his desire to seek justice for his injury.[19]
  1. [24]
    Mr Quarrell argues the Respondent has continued to engage in prejudicial behaviour both before and since filing the GP Application and has experienced 'injustice'.
  2. [25]
    As for the delay in requesting that the matter be reopened, Mr Quarrell submits there was a breakdown in communication between himself and the QNMU because of his psychological injury. Mr Quarrell further submits he was only provided with three hours' notice to comply with a Directions Order and that he withdrew from the GP proceedings under duress.[20]
  3. [26]
    After extensive email discussions with the QNMU to reopen his case, he maintains that his request for a representative was refused.[21]
  4. [27]
    Mr Quarrell further contends that in the period after he discontinued the GP Proceedings, he was involved in a motor vehicle accident which, in addition to his psychological injury, contributed to further delays.[22]

Queensland Health's Submissions

  1. [28]
    Queensland Health submits:
  • The IME Report and the First WCR Decision do not constitute evidence of the questions of fact and law in issue within the GP Application;[23]
  • It was always open to Mr Quarrell to acquire a medical report or IME report as part of the original GP Proceedings and such a report cannot now be classified as 'new evidence', given the option to obtain such a report was always available;[24]
  • Queensland Health should not now be penalised for Mr Quarrell's decisions as to how he conducted the earlier litigation;[25]
  • The IME Report proceeds on an assumption that the version of events, as told to the doctor during his examination of Mr Quarrell is accurate in circumstances where the report cannot be objectively considered probative evidence to warrant a reopening of the matter;[26]
  • The First WCR Decision, on which Mr Quarrell relies has been set aside by consent on 9 February 2023, due to a lack of procedural fairness afforded to Queensland Health with a Second WCR Decision issued the 3 April 2023;[27]
  • The Decisions do not constitute evidence of a question of fact or law relevant to the GP Proceedings;[28]
  • The WCR Decisions are made under a different statutory framework which encompasses different legislative objects and criteria;[29] and
  • The WCR Decision is an 'opinion' and not 'evidence' that could be properly led in a proceeding.[30]
  1. [29]
    In response to the reasons Mr Quarrell provided for having discontinued his GP Proceedings, Queensland Health argues the submissions are inadequate for the following reasons:
  1. In respect of Mr Quarrell's complaints about being provided with approximately three hours to comply with the Directions Order, a more appropriate course of action would have been for Mr Quarrell to have sought an extension from Queensland Health and/or the Commission.[31]
  2. Mr Quarrell personally chose to withdraw the proceedings and was not under duress.[32]
  1. Mr Quarrell's assertions he was medically incapacitated and unable to deal with the GP Proceedings are inconsistent with other submissions in the proceedings, including that he was capable of engaging extensively with the QNMU in respect of his application.[33]
  2. Mr Quarrell's submissions that he was medically incapacitated by a motor vehicle accident in the period after the withdrawal of the GP Proceedings do not align with information in the IME Report which confirms the accident occurred on 5 May 2021, five months prior to Mr Quarrell discontinuing his application.[34]
  3. There is an inconsistency between Mr Quarrell's submissions and the IME Report, with the report concluding that 'his incapacity for work is being driven by his need to work closer to his home and by his deep sense of injustice caused by the alleged prejudicial treatment from the management, rather than the motor vehicle accident itself.'[35]
  1. [30]
    As for the prejudice Queensland Health considers it would suffer if the matter were to be reopened, it is submitted:
  • the length of delay is significant and will result in serious challenges for witnesses who will be required to recall events and conversations from seven years ago.[36]
  • several witnesses, which it may wish to call no longer work for Queensland Health, and/or no longer reside in Queensland.[37] 
  1. [31]
    Queensland Health contends Mr Quarrell was not deprived of the opportunity to have his case heard, maintaining that it engaged actively and in good faith during the period Mr Quarrell was pursuing the GP Application.[38]

Mr Quarrell's Reply Submissions

  1. [32]
    Mr Quarrell clarified in his reply submissions that a separate IME Report was completed prior to filing a Form 27 – Request to discontinue the GP Proceedings. He maintains the report stated he was incapacitated due to the motor vehicle accident, and therefore, the filing of a discontinuance could not have been a forensic or informed decision in circumstances where he did not have the capacity to make a decision or understand the ramifications of any decisions he made at the time.[39]
  2. [33]
    He claims it was only after the matter was discontinued that the second IME report identified a separate diagnosis.
  3. [34]
    Given the differences in the IME reports, Mr Quarrell submits that the IME Report is new material evidence relevant to establishing his injury.[40]
  4. [35]
    As for the WCR Review Decision, Mr Quarrell contends it is  fresh evidence regarding questions in fact and law given that the WCR Decision contains the events outlined in the GP Application.[41]
  5. [36]
    He also clarifies that as he was being represented by the QNMU, up until he discontinued the application, he did not have a copy of the documents list or outlines of witness evidence and were he to continue his matter at that time he would have been at a disadvantage.[42]
  6. [37]
    As to witnesses' memory, Mr Quarrell attests that witnesses would not be relying on their memory alone and that assistance from outlines of evidence filed by Queensland Health and various other documents, such as meeting minutes, could be utilised during the hearing.[43]

Consideration

Should Mr Quarrell be granted leave to reopen the GP proceedings?

  1. [38]
    Where proceedings have been finalised by the filing of a Form 27 - Request to discontinue proceedings, leading to one or more parties being afforded the expectation of finality, a reopening of a matter is generally limited to exceptional circumstances, such as fraud or mistake or where it is otherwise appropriate in the administration of justice.[44]

New evidence

  1. [39]
    Mr Quarrell signed a Form 27 – Request to discontinue the GP Proceedings on 26 October 2021.[45] He now relies on an IME Report prepared by Dr Sanjeev Ranjan[46] and the release of a Review Decision by the Workers' Compensation Regulator[47] as the basis for reopening the GP Proceedings. The IME report was prepared on 2 December 2021 approximately twelve months before the application to reopen was filed with the Industrial Registry. The Review Decision was dated 18 November 2022.
  2. [40]
    Within his submissions, Mr Quarrell seems to be asserting that both documents are evidence of not only the injury he suffered due to adverse treatment he claims to have been the recipient of while employed by SCHHS and thereafter, but also other events, conduct or circumstances which comprise or led to the adverse action.
  3. [41]
    In my assessment, the IME report and the Review Decision are not capable of being sufficiently characterised as material evidence to the extent that either document warrants a reopening of the GP Proceedings. There are several reasons for this conclusion.
  4. [42]
    First, the Review Decision Mr Quarrell seeks to rely on was undertaken 'on the papers' and crafted having regard to materials gathered by a review officer in a process not bound by the rules of evidence and made under a separate statutory framework with a different objective and purpose.[48]
  5. [43]
    Although I appreciate that the thrust of Mr Quarrell's submissions is that the Review Decision deals with the issue of reasonable management action, the Commission's role cannot be augmented or appropriated by accepting an administrative decision prepared by another body for a different purpose, under a separate legislative regime, in lieu of a de novo process. Instead, it must find its own facts and draw its own conclusions from those facts having regard to the application it is required to determine.
  6. [44]
    An acceptance of the review decision as 'new evidence' as proposed by Mr Quarrell assumes the Commission should adopt the conclusions within the decision when instead its role in respect of the GP Proceedings is to conduct a fresh hearing and consider evidence relevant to the questions of fact and law for that application.
  7. [45]
    Secondly, the IME report sets out a series of observations about the nature and causes of Mr Quarrell's injuries and his capacity to return to work, as of December 2021.[49] The specialist arrives at a conclusion having regard to documents supplied by Workcover and Mr Quarrell's account of the events that he alleges contributed to the onset of his injury.
  8. [46]
    In circumstances where the report was procured in the context of a Workers' Compensation claim and where aspects of the report include a summary of behaviour or conduct of other parties in the relevant period, based on Mr Quarrell’s recollection, I am not persuaded it is so material, in respect of the issues to be determined in the GP Proceedings, that it justifies a reopening of those proceedings.
  9. [47]
    Even if that was not the case, a reopening application is not a process that permits a litigant to revisit a decision they or their representatives made or did not make about the conduct of their case in hindsight.[50]
  10. [48]
    In this regard, there is no evidence that supports a conclusion Mr Quarrell or his representatives were precluded, through additional diligence, from obtaining a further report in the months between when the GP Application was initially filed on 8 March 2021, until it was discontinued on 26 October 2021. In any event, Mr Quarrell or his representatives could have approached the Commission to request an extension or variation to the existing Directions Order to accommodate a need for additional medical evidence.

Other reasons in support of reopening GP Proceedings

  1. [49]
    The primary grounds relied on by Mr Quarrell to reopen the GP Proceedings in his original application concerned only new evidence.[51] Within his submissions, he has subsequently highlighted other factors in support of his application, which he contends contributed to the initial decision to discontinue the proceedings and the subsequent delay in lodging an application to reopen.

Reasons for Delay

  1. [50]
    Mr Quarrell signed a Form 27 – Request to Discontinue the GP Proceedings and the QNMU filed the discontinuance on his behalf on 26 October 2021. The Commission issued a Notice of Approval of Withdrawal on 15 November 2021.
  2. [51]
    Mr Quarrell maintains he signed the request to discontinue the GP Proceedings under duress following a breakdown in communication between himself and the QNMU, which resulted in him being left with three hours to present an argument to the QIRC. Moreover, that he was incapable of representing himself at the time because he was incapacitated due to his psychological injury and lacked experience in industrial relations.
  3. [52]
    It is the case that on 29 June 2021, a Directions Order issued by Commissioner Power required Mr Quarrell or his representative to file an outline of argument by 4.00pm on 22 October 2021. A subsequent Directions Order providing Mr Quarrell with an extension to file an outline of argument on 26 October 2021 was issued on 22 October 2021.
  1. [53]
    However, in an email to Mr Quarrell dated 26 October 2021,[52] Ms Anne-Maree Roche of the QNMU advised:

324870 26-10-2021 Quarrell v State of Queensland (Queensland Health) GP2021/3 – no longer being represented by the QNMU

Anne-Maree Roche ...

Tue 26/10/2021 12:44pm

To: tony ...

Cc: Jo-Anne Munro ...

Dear Tony

The QNMU has been unable to obtain instructions from you regarding the three options in my previous emails.

This morning the QNMU will provide email advice, to the QIRC Registry and the Respondent's lawyer, that the QNMU is (sic) longer representing you in these proceedings.

If you wish (sic) represent yourself you need to file an Outline of Argument by 4.00pm today 26 October 2021.

If you wish to discontinue the proceedings you will need to file a Form 27 Request to Discontinue Proceedings.

Regards

Anne-Maree Roache

Servicing Industrial Officer[53]

  1. [54]
    Aside from the above email and Mr Quarrell's assertions within his submissions about a communication breakdown, there is no other evidence before the Commission about the reasons and nature of the problems he experienced with the QNMU or how these circumstances impacted his ability to engage with the Commission about the progress of the matter. Moreover, there is no evidence to support the assertion that he signed the form under duress or that the discontinuance was filed against his will.
  2. [55]
    Other than asserting, within his submissions, that he was incapacitated around the time the discontinuance was filed, it is not clear what steps, if any, Mr Quarrell took to obtain alternative advice or representation before signing a request for a discontinuance.
  3. [56]
    Similarly, aside from assertions about his incapacity due to a psychological injury, I have no other evidence or meaningful explanation before me about the reasons why Mr Quarrell did not request an extension of time for the filing of an outline of argument, in circumstances where a date was yet to be set for the hearing of the matter and all other aspects of the Amended Directions Order, including a requirement for both parties to serve an outline of evidence, had previously been satisfied.
  4. [57]
    Within the IME report he relies upon as the basis for the reopening of the proceedings, Mr Quarrell is diagnosed with an adjustment disorder with mild anxiety.[54] The specialist, Dr Sanjeev Ranjan reports:

Considering that he kept functioning after the alleged bullying, I would not consider that as an incapacitating injury.

  1. [58]
    In a Workcover claim summary included within the IME Report, Mr Quarrell is reported as having lodged a Workers' Compensation claim on 25 October 2021, one day before the discontinuance for the GP Proceedings was filed.[55] As best I understand, the claim was accompanied by a detailed statement, aspects of which are summarised by Dr Ranjan within the report.
  2. [59]
    Although there is a reference within the IME report to a medical certificate that indicated Mr Quarrell was incapacitated for work until 30 November 2021, I was unable to locate any opinions within the report or other materials before the Commission that would support a conclusion he was under duress or precluded from obtaining advice or contacting the QIRC about the GP proceeding as a result of any incapacity at the time the discontinuance was signed.

Explanation for Delay – 26 October 2021 to 9 December 2022

  1. [60]
    Mr Quarrell attributes the cause of the delay in seeking to reopen the GP Proceedings to:
  1. his inability to enlist the services of the QNMU in the period from February 2022 to December 2022, despite extensive email interaction with the QNMU and his subsequent escalation of the matter to other senior staff within the union;
  1. his involvement in a motor vehicle accident which resulted in six months of incapacity;
  2. his incapacity due to a 'major depressive disorder'; and
  3. his unwillingness to face the respondent in this period due to his views it had been the 'perpetrator' of his injury.
  1. [61]
    Other than Mr Quarrell's assertions within his submissions about his interaction with the QNMU, he did not file any evidence in support of his attempts to engage with the union or the challenges he experienced. Even if it was the case, however, that he experienced difficulties enlisting the support of the QNMU, Mr Quarrell has not provided any evidence in support of other actions he took to seek alternative representation during the relevant period.
  2. [62]
    Similarly, Mr Quarrell has not filed any evidence to assist the Commission to better understand how his concerns about the Respondent contributed to the delay.[56]
  3. [63]
    Within the IME Report attached to the application to reopen, Mr Quarrell is reported as having been involved in a motor vehicle accident on 5 May 2021. The accident is summarised within the report by Dr Ranjan in the following way:

Mr Quarrell presents with a history of anxiety and depressive symptoms, nightmares, ruminative thinking and avoidant safety behaviours in the context of a motor vehicle accident dated 05/05/2021 when he was driving to his work and hit a concrete barrier. The information available to me indicated that Mr Quarrell turned around and drove back to his home after the accident and the accident site did not have attendance of QAS or fire services. It is unclear if he had any physical injury at all.[57]

  1. [64]
    In the same report, Dr Ranjan opines the injury associated with the motor vehicle accident on 5 May 2021 is stable and stationary,[58] expressing an opinion that Mr Quarrell's incapacity from the injury had ceased.[59]
  2. [65]
    Within his reply submissions, Mr Quarrell relies on a further IME report prepared for Workcover by Dr Sharon Harding on 1 February 2023 as evidence of his incapacity due to a motor vehicle accident, submitting:

IME Dr Hardings report found "residual" symptoms from MVA in 2023, evidencing the effects of the MVA remained throughout the period in question and also diagnosed with MDE[60]

  1. [66]
    While I accept Dr Harding's conclusion, in response to a query about Mr Quarrell's work-related injuries, observed he had minor residual symptoms from a motor vehicle accident,[61] I was unable to locate any opinion within either IME report that would support a conclusion the motor vehicle accident of 5 May 2021 and any residual injury was a contributing factor in the delay in lodging an application to reopen the proceedings.
  2. [67]
    It appears that if any inference is to be drawn about Mr Quarrell's capacity in the period between 25 October 2021 and 9 December 2022 when he filed the application to reopen proceedings, it is that he was capable of working and making decisions,[62] driving his children to school,[63] attending the gym,[64] riding his bike,[65] engaging extensively with the QNMU,[66] engaging with Workcover[67] and later the Regulator, in respect of a review of a Workers' compensation claim, and inquiring about several roles with the SCHHS during this time.[68]
  3. [68]
    Within his submissions, Mr Quarrell does not address how he was capable of working on a part-time basis, applying or inquiring about employment, pursuing a Workers' Compensation claim and engaging extensively with the QNMU, yet precluded from filing an application to reopen the GP proceedings in the same period due to incapacity.
  4. [69]
    Nor has Mr Quarrell filed any evidence that adequately explains the delay between his receipt of the IME Report authored by Dr Sanjeev Ranjan[69] and the filing of the application to reopen one year later.
  5. [70]
    According to Dr Harding's report,[70] Mr Quarrell resigned from his position at a medical clinic on 21 December 2022, approximately five weeks after the decision by Workcover to reject his application for compensation was set aside and substituted with a decision to accept an earlier Workcover application.[71]
  6. [71]
    In the same period he resigned from his employment, Mr Quarrell obtained a medical certificate stating he was totally unfit for employment from 21 December 2022 to 3 February 2023.[72]
  7. [72]
    Relevantly, the diagnosis of Major Depressive Disorder referred to in Mr Quarrell's submissions, and upon which he relies in support of his incapacity, was confirmed by Dr Harding on 1 February 2023, approximately two months after the application to reopen was filed.
  8. [73]
    Having regard to the materials filed by Mr Quarrell, I find that although there have been periods where his psychological injury may have prevented him from attending work and it is now the case that he has been diagnosed with a Major Depressive Disorder, there is insufficient evidence before me to support a conclusion that he was incapacitated either at the time of signing the discontinuance or thereafter, to such an extent that he was prevented or precluded from taking action until 9 December 2022.
  9. [74]
    For the foregoing reasons, I consider the circumstances detailed in [60] do not constitute an adequate explanation for the delay in filing an application to re-open the GP proceedings in the period 26 October 2021 to 9 December 2022. 

Readiness to proceed

  1. [75]
    Although both parties to the original GP Proceedings had progressed the matter to the point where an Outline of Argument was to be filed, Mr Quarrell has provided no information as to how the new evidence he is proposing to rely on would impact the readiness of the matter to be heard in the event leave was granted to re-open.
  2. [76]
    It is not clear from Mr Quarrell's submissions if he intends to file and serve an amended statement of facts and contentions or whether he proposes to call other witnesses aside from those previously identified during the GP Proceedings.
  3. [77]
    While he refers to Queensland Health's witnesses and their respective outlines of evidence within his submissions,[73] Mr Quarrell has not advised how he considers the 'new evidence' on which he seeks to rely, would impact the matter or delay its progression.
  4. [78]
    I am not persuaded therefore that the substantive proceedings are capable, at this point, of proceeding to a hearing in a timely manner.

Prejudice to the parties if the application is not granted

  1. [79]
    While Queensland Health accepts that the opportunity for Mr Quarrell to litigate his claim is a matter weighed in his favour[74] it argues the length of delay is significant, giving rise to a general presumption of prejudice.
  2. [80]
    It is submitted that despite having carriage of the proceedings and the matter progressing to a point where it was time for Mr Quarrell to articulate his case before the Commission, he voluntarily elected to discontinue the matter.[75] In those circumstances, it is argued that the witnesses who were advised of Mr Quarrell's discontinuance in 2021, were entitled to assume the issues raised were at an end and move on with their lives.
  3. [81]
    Mr Quarrell concedes that some time has passed since the GP Proceeding was discontinued, however he submits there are existing records of the events that occurred while he was employed by the SCHHS, upon which both parties can rely. Moreover, both IME reports[76] in combination with the Regulator's decision are ample evidence of his injury and that his employer is the 'perpetrator' of the injury.
  4. [82]
    Although refuted by Queensland Health, Mr Quarrell filed further submissions in support of reopening the GP proceedings, which describe events or actions in the period before and after the filing of the discontinuance which he characterises as ongoing prejudicial behaviour on the part of Queensland Health, as it relates to recruitment processes and his attempts to obtain a position within the SCHHS.
  5. [83]
    Mr Quarrell submits that if leave is not granted to reopen, he may well be denied the opportunity to obtain a job closer to home, in a context where he argues the actions of Queensland Health have prevented him from securing a suitable position within the SCHHS and where a resolution of the concerns he holds about his employer would assist in his recovery from his diagnosed psychological injury.[77]
  6. [84]
    Mr Quarrell lodged his General Protections application on 8 March 2021.[78] It is not in contention that if the matter were to be reopened, the evidence about the alleged adverse action, would require witnesses to recall events and conversations which took place more than seven years ago.[79]
  7. [85]
    I accept there is a serious risk that Queensland Health's witnesses' memories of some, if not most, of these events may well have faded and that details could be forgotten.
  8. [86]
    Moreover, given Mr Quarrell's proposed reliance on 'new evidence' and the possibility that amended facts and contentions would be filed, it would be necessary for Queensland Health to revisit its response to and management of the GP Application. If this occurs, it is likely further costs will be incurred which may not be recoverable.
  9. [87]
    In this context, Queensland Health has provided the Commission with a list of 11 witnesses it may wish to call in the event leave to reopen is granted. In the period between 2015 when the events said to have proceeded the adverse action first arose and 9 December 2021, when the application to reopen was filed, eight witnesses have either retired or left the employment of SCHHS.
  10. [88]
    In addition to having to bear the costs of locating these witnesses, they along with Mr Quarrell, would be required to recollect events and circumstances which occurred up to seven years ago.
  11. [89]
    In my assessment, there is a real and substantial risk of prejudice to Queensland Health particularly where details may well be forgotten which in turn will impact its ability to defend the GP proceedings in a context where allegations of contraventions of Chapter 8 of the Industrial Relations Act 2016 carry a reverse onus.
  12. [90]
    For the foregoing reasons, it seems to me that there is a serious risk Queensland Health will be prejudiced to such a degree that the hearing may well be unfair.

Conclusion - Interests of Justice

  1. [91]
    In deciding whether to exercise the discretion to grant leave to reopen this matter, the primary consideration is whether the interests of justice are better served by allowing or refusing leave to reopen.[80]
  2. [92]
    It is a serious matter to dismiss such an application and deprive Mr Quarrell of the opportunity to have the GP Proceedings determined by the Commission. Equally, however, the discretion to reopen must not be exercised lightly or without good reason.
  3. [93]
    Mr Quarrell primarily relies on an IME Report prepared by Dr Sanjeev Ranjan[81] and the release of a Review Decision by the Workers Compensation Regulator[82] as the basis for reopening the GP Proceedings
  4. [94]
    I am not persuaded, however, for the reasons touched on earlier, that this is a case where the materiality of the Workers' Compensation Review Decision[83] and the IME Report[84] and the relationship either may have to the issues to be determined in the GP Proceedings outweigh other factors, when determining whether to grant the application.
  5. [95]
    On 26 October 2021, Mr Quarrell elected to complete a form to discontinue the GP Proceedings. While Mr Quarrell contends he signed the request following a breakdown in communication with his representatives and under duress, at its highest the materials before the Commission indicate the QNMU elected to discontinue its representation and provide him with advice about his options after it was unable to obtain instructions.
  6. [96]
    There is no evidence before the Commission to support a conclusion Mr Quarrell took steps to seek alternative advice, support or representation at the time the discontinuance was filed.
  7. [97]
    Similarly, in the period 26 October 2021 to 9 December 2021, despite being aware the GP Proceedings had been discontinued, other than his assertions about his interaction with the QNMU, there is no evidence as to what steps Mr Quarrell took to protect his interests, particularly in the twelve months after the IME Report,[85] which he now characterises as 'new evidence', was finalised.
  8. [98]
    While I accept the opinions within either IME Report confirm he was suffering from a psychological injury, there is no direct evidence that the injury precluded Mr Quarrell from pursuing his claim, both before the discontinuance or thereafter.[86]
  9. [99]
    In any event, it is not clear how he was able to file a Workers' Compensation Claim and pursue a review of the claim through the Regulator, undertake a part-time role and engage in a grievance process with the QNMU, in the same period he claims he was precluded from pursuing a reopening application due to incapacity.
  10. [100]
    Given Mr Quarrell's reliance on new evidence, I consider it would be necessary for both Mr Quarrell and Queensland Health to revisit their respective cases. I therefore have limited confidence the substantive matter would be capable of proceeding in a timely manner.
  11. [101]
    Of greatest concern, however, is the delay between the events that are said to have initially contributed to the adverse action in or around 2015 and the time the application to reopen was filed. Having taken until 9 December 2022 to file the application, I am satisfied Mr Quarrell's lack of action has led to an outcome where Queensland Health will be prejudiced in the event leave to reopen is granted.
  12. [102]
    For the foregoing reasons, I am not persuaded the interests of justice would be better served by granting leave to reopen the GP Proceedings.

Conclusion

  1. [103]
    The application to reopen B/2022/38 is dismissed.

Orders

  1. [104]
    I order accordingly:

The application to reopen proceedings is dismissed.

Footnotes

[1] Form 27 – Request to discontinue proceeding filed on 26 October 2021 in matter GP/2021/3.

[2] Notice of Approval of Withdrawal issued on 15 November 2021.

[3] Mr Quarrell's Form 2 – Application to Queensland Industrial Relations Commission – non-chapter approved form filed on 9 December 2022.

[4]Mr Quarrell's submissions filed 12 June 2023, p 3.

[5] Queensland Health's submissions filed 24 April 2023 [24]-[30].

[6] Industrial Relations Act 2016 (Qld) s 309(2).

[7] Mr Quarrell's Form 2 – General Application to Queensland Industrial Relations Commission filed on 8 March 2021 in matter GP/2021/3.

[8] Affidavit of Mr Tony Quarrell filed on 8 March 2021 in matter GP/2021/3.

[9] Mr Quarrell's Form 2 – General Application to Queensland Industrial Relations Commission filed on 8 March 2021 in matter GP/2021/3.

[10] Mr Quarrell's Statement of Facts and Contentions filed 9 June 2021 for matter GP/2021/3.

[11] Directions Order issued on 19 May 2021 in matter GP/2021/3.

[12] Further Directions Order issued on 22 October 2021 in matter GP/2021/3.

[13] Queensland Health's submissions filed 24 April 2023, Attachment 3.

[14] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A.

[15] Ibid, Exhibit B.

[16] Industrial Relations Act 2016 (Qld) ss 484, 485.

[17] [2019] QIRC 149.

[18] Ibid [40]-[41].

[19] Mr Quaearrell's submissions filed 12 June 2023.

[20] Ibid 2-3.

[21] Ibid.

[22] Ibid 3.

[23] Queensland Health's submissions filed 24 April 2023 [3].

[24] Ibid [17]. 

[25] Ibid [17].

[26] Ibid [18].

[27] Ibid [19].

[28] Ibid [20].

[29] Ibid.

[30] Ibid [21].

[31] Ibid [23a].

[32] Ibid.

[33] Ibid [23b].

[34] Ibid [23c].

[35] Ibid [23d].

[36] Ibid [27].

[37] Ibid [28].

[38] Ibid [30].

[39] Mr Quarrell's reply submissions filed 10 May 2023 1.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid 2.

[44] Seidler v University of New South Wales & Anor [2010] FMCA 887 [34].

[45] Queensland Health's submissions filed 24 April 2023 [8].

[46] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A.

[47] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit B,

[48] Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 539 – 547; Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 148.

[49] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A.

[50] Application for Re-opening of TH/2008/4 [2011] QIRC 15.

[51] Mr Quarrell's Form 2 – Application to Queensland Industrial Relations Commission – non-chapter approved form filed on 9 December 2022.

[52] Mr Quarrell's submissions filed 12 June 2023, attached email from Ms Anne-Maree Roche dated 26 October 2021, 7.

[53] Ibid.

[54] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A, 17.

[55] Ibid 4.

[56] As outlined in [49](d).

[57] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A, 13.

[58] Ibid 16.

[59] Ibid 17.

[60] Mr Quarrell's reply submissions filed 10 May 2023.

[61] Ibid, attached Independent Medical Examination Report, 10.

[62] Ibid, attached Independent Medical Examination Report, 2. Mr Quarrell is reported as having worked for up to 48 hours per fortnight in a nurse practitioner role with Sunny Street in Maroochydore in the period August 2022 until early December 2022.

[63] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A, 3.

[64] Ibid.

[65] Ibid.

[66] Mr Quarrell's submissions filed 12 June 2023, 3.

[67] Mr Quarrell's reply submissions filed 10 May 2023, attached Independent Medical Examination Report.

[68] Mr Quarrell's submissions filed 12 June 2023.

[69] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A.

[70] Mr Quarrell's reply submissions filed 10 May 2023.

[71] Mr Quarrell's Form 2 – Application to Queensland Industrial Relations Commission – non-chapter approved form filed on 9 December 2022.

[72] Mr Quarrell's reply submissions filed 10 May 2023, attached Independent Medical Examination Report, 2.

[73] Mr Quarrell's submissions filed 12 June 2023, 1.

[74] Queensland Health's submissions filed 24 April 2023 [24].

[75] Ibid [24]-[25].

[76] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A; Mr Quarrell's reply submissions filed 10 May 2023, attached Independent Medical Examination Report.

[77] Mr Quarrell's submissions filed 12 June 2023, 2.

[78] Mr Quarrell's Form 2 – General Application to Queensland Industrial Relations Commission filed on 8 March 2021 in matter GP/2021/3.

[79] Mr Quarrell's Statement of Facts and Contentions filed on 9 June 2021 in matter GP/2021/3.

[80] EB v CT (No 2) [2008] QSC 306; Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 QdR 12, 16-17 cited with approval in Emaaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232, [19].

[81] Affidavit of Mr Tony Quarrell filed 9 December 2022, Exhibit A.

[82] Ibid, Exhibit B.

[83] Ibid.

[84] Ibid, Exhibit A.

[85] Ibid.

[86] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Quarrell v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Quarrell v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 78

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    04 Apr 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
Application for Re-opening of TH/2008/4 [2011] QIRC 15
2 citations
Jump To
Cite 1 - [2011] QIRC 15
Cite 2 - [2011] QIRC 15
Bell v Simon Blackwood (Workers' Compensation Regulator) [2020] QIRC 37
1 citation
Jump To
Cite 1 - [2020] QIRC 37
EB v CT (No 2) [2008] QSC 306
2 citations
Jump To
Cite 1 - [2008] QSC 306
Cite 2 - [2008] QSC 306
Emaaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 232
2 citations
Jump To
Cite 1 - [2003] QCA 232
Cite 2 - [2003] QCA 232
Finborough Investments Pty Ltd v Airlie Beach Pty Ltd[1995] 1 Qd R 12; [1993] QSC 268
2 citations
Jump To
Cite 1 - [1995] 1 Qd R 12
Cite 2 - [1995] 1 Qd R 12
Fowler v Workers' Compensation Regulator [2019] QIRC 149
2 citations
Jump To
Cite 1 - [2019] QIRC 149
Cite 2 - [2019] QIRC 149
Myers v State of Queensland (Department of Education) [2021] QIRC 108
1 citation
Jump To
Cite 1 - [2021] QIRC 108
Orchid Avenue Realty Pty Ltd t/a Ray White Surfers Paradise v Percival (2003) 174 QGIG 643
1 citation
Jump To
Cite 1 - (2003) 174 QGIG 643
Seidler v University of New South Wales & Anor [2010] FMCA 887
2 citations
Jump To
Cite 1 - [2010] FMCA 887
Cite 2 - [2010] FMCA 887

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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