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Raymond v State of Queensland (Queensland Ambulance Service)[2025] QIRC 25

Raymond v State of Queensland (Queensland Ambulance Service)[2025] QIRC 25

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Raymond v State of Queensland (Queensland Ambulance Service) [2025] QIRC 025

PARTIES:

Raymond, Bryce Anthony

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2024/74

PROCEEDING:

Public Sector Appeal – Casual employment conversion

DELIVERED ON:

28 January 2025

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a conversion decision – where the appellant has been employed on a non-permanent basis as an Advanced Care Paramedic within the Sunshine Coast and Wide Bay Region – where the appellant requested a review of his non-permanent employment – where the respondent determined to offer the appellant permanent employment as an Advanced Care Paramedic at various locations outside of the Sunshine Coast and Wide Bay Region –  decision not appealable as the Respondent has made an offer of permanent employment to a role which is substantially the same – appeal dismissed

LEGISLATION AND INSTRUMENTS:

Public Sector Act 2022 (Qld) s 114, s 115, s 129, s 131, s 133

Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564, s 567

Directive 02/23: Review of non-permanent employment cl 12, cl 15

CASES:

Ewart v State of Queensland (Queensland Ambulance Service) [2023] QIRC 304

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Keenan v State of Queensland (Queensland Health) [2023] QIRC 297

Reasons for Decision

Background

  1. [1]
    Mr Bryce Anthony Raymond (the Appellant) is employed by the State of Queensland (Queensland Ambulance Service) (the Respondent) in the role of Advanced Care Paramedic on a non-permanent basis in the Sunshine Coast and Wide Bay Region. The Appellant has been employed with the Respondent since 22 February 2022, on both casual and fixed-term temporary contracts. Currently, he is employed on a casual basis.
  2. [2]
    On 22 February 2024, the Appellant became eligible for a review in accordance with s 115 of the Public Sector Act 2022 (Qld) (PS Act). On 21 November 2023, the Appellant submitted written notice to the Respondent that he would be eligible for a non-permanent review in accordance with s 115 of the PS Act.
  3. [3]
    On 20 March 2024, the Appellant made a written request for information regarding what he considered to be deemed decision, after not having heard from the Respondent in relation to his conversion request.
  4. [4]
    On 21 March 2024, the Respondent gave written notice that a review was not conducted as the Appellant was not eligible, due to breaks in continuity of service. The Appellant advised the Respondent this was incorrect as the Appellant was eligible for review.
  5. [5]
    On 8 April 2024, Mr David Hill, A/Executive Director, Workforce, Queensland Ambulance Service wrote to the Appellant (the Decision), advising (emphasis added):
  1. I have been advised that you possess all mandatory qualifications and registrations required of an Advanced Care Paramedic, and you are not currently subject to any unresolved conduct or performance matters. As such, I consider you suitable to perform the role as defined in the Directive.
  1. Where the above requirements are satisfied, the QAS is required to offer to convert your employment to a permanent basis unless it is not viable or appropriate to do so having regards to the genuine operational requirements. Having considered these genuine operational requirements, the authorised delegate has determined that it is appropriate to offer you conversion on a permanent basis. This offer is contingent upon your acceptance of placement into a genuine vacancy (as outlined below) which may not be at your existing location.
  1. It is on this basis that that (sic) an offer of permanent employment is made in a location, or locations, which may be different to that in which you currently work. Currently there is an operational requirement to fill genuine permanent vacancies in the following locations:
  • Mount Isa, North West District
  • Warwick, Darling Downs District
  • Goondiwindi, Darling Downs District
  1. In addition to the above, there are currently limited opportunities for placement into certain locations within the Metro North and South Regions. These locations are still being identified in accordance with operational requirements.
  1. [6]
    On 29 April 2024, the Appellant filed this appeal against the Decision.
  1. Timeframe for appeal
  1. [7]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  2. [8]
    The Decision was given to the Appellant on 8 April 2024 and the Appeal Notice was filed with the Industrial Registry on 29 April 2024.
  1. [9]
    I am satisfied the Appeal was filed within the required timeframe.
  1. What decisions can the Commission make?
  1. [10]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • Confirm the decision appealed against; or
  • Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate;
  • Set the decision aside and substitute another decision.
  1. Appeal principles
  1. [11]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [12]
    The appeal is not conducted by way of re-hearing,[1] but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[2] 
  2. [13]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.
  1. Jurisdiction
  1. [14]
    Clause 15.2 of Directive 02/23: Review of non-permanent employment (the Directive) provides that a public sector employee "may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non-permanent employment, as provided for under chapter 3, part 10 of the Act".
  2. [15]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act states that an appeal may be made against "a conversion decision".[3]
  3. [16]
    The definition of "conversion decision" is outlined in s 129 of the PS Act, which is a decision "under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis".[4]A "conversion decision" is also a decision under s 115 of the PS Act:

… to convert the employment of a public sector employee mentioned in section 112 to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis …[5]

  1. [17]
    The Respondent submitted that the Commission does not have jurisdiction to hear this Appeal, as the Decision is an offer of employment on a permanent basis which satisfies the requirements of ss 114 and 115 of the PS Act.[6] Specifically, the Respondent determined to convert the Appellant's employment to permanent at either Mount Isa, Warwick or Goondiwindi. The Appellant was also advised that there were some limited opportunities available "within Metro North and Metro South Regions". If the Appellant wished to explore these options, he was required to advise the Respondent by 22 April 2024.[7]
  2. [18]
    The Appellant submitted he is appealing the Decision not to convert his employment:

… in his Role to permanent on the basis there were no current vacancies in the Sunshine Coast District and the Respondent instead offered the Appellant conversion to permanent contingent on the Appellant accepting a vacancy in a rural district where the Appellant has never worked … [8]

  1. [19]
    In reply to the jurisdictional issue raised by the Respondent, the Appellant submitted that the decision is appealable as "there was a decision not to convert [his] employment to permanent, instead, there was a decision to convert his employment, contingent on certain conditions".[9]
  2. [20]
    In light of the jurisdictional objection raised by the Respondent, I will first consider whether or not the Commission has jurisdiction to hear this appeal.
  1. Submissions
  1. [21]
    In accordance with the Directions Order issued on 7 May 2024, the parties filed written submissions
  2. [22]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  3. [23]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration.
  1. Relevant Legislation
  1. [24]
    Section 133 of the PS Act explains who may appeal a conversion decision:
  1. 133
    Who may appeal
  1. The following persons may appeal against the following decisions—
  1. (a)
    for a conversion decision—the public sector employee the subject of the decision
  1. [25]
    Section 129 of the PS Act defines a conversion decision as (emphasis added):
  1. 129
    Definitions for part
  1. In this part—
  1. conversion decision means a decision—
  1. (a)
    under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis; or
  1. (b)
    under section 115 to convert the employment of a public sector employee mentioned in section 112 to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis; or
  1. [26]
    Section 114 of the PS Act relevantly states:
  1. 114
    Chief executive must make decision on employee's request
  1. (1)
    This section applies if a public sector employee makes a request under section 113.
  1. (2)
    The employee's chief executive must decide the request within 28 days after receiving the request.
  1. (3)
    The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if—
  1. (a)
    the employee's chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
  1. (ii)
    the employee is suitable to perform the role; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (4)
    If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.
  1. (9)
    In this section—
  1. suitable, in relation to an employee performing a role, has the meaning given under a directive.
  1. [27]
    Section 115 of the PS Act provides:
  1. 115
    Chief executive must review status after 2 years of continuous employment
  1. (1)
    If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to—
  1. (a)
    continue the employee's employment according to the terms of the employee's existing employment; or
  1. (b)
    offer to convert the employee's employment to a permanent basis.
  1. (2)
    The employee's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.
  1. (3)
    In making the decision—
  1. (a)
    section 114(3) and (4) applies to the employee's chief executive; and
  1. (b)
    the employee's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.
  1. (10)
    This section does not limit or otherwise affect section 113.
  1. [28]
    The Directive relevantly provides (emphasis added):
  1. 12.
    Obligations when a decision is made to offer to convert an employee's employment to a permanent basis
  1. 12.1
    Where a chief executive decides to offer to convert an employee's employment to a permanent basis, they must provide written notice of the decision.
  1. 12.2
    The written notice provided for in clause 12.1 must include:
  1. a.
    the terms and conditions of the offer to convert to employment on a permanent basis (e.g. full-time or part-time, days and hours of work, pay, location of employment, and any changes to entitlements or conditions)
  1. b.
    where the employee is offered part-time employment on a permanent basis, an explanation of the days and hours of work being offered.
  1. 12.3
    The chief executive cannot convert a public sector employee to employment on a permanent basis unless the employee accepts the terms and conditions of the offer of employment.
  1. 15.
    Appeal rights
  1. 15.1
    In accordance with section 115(9)(b) of the Act, a public sector employee may appeal an offer made under section 115(1)(b) to convert the employee's employment to a permanent basis in the circumstances where the hours of work offered unreasonably disadvantage the employee in the circumstances.
  1. 15.2
    A public sector employee may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non-permanent employment, as provided for under chapter 3, part 10 of the Act.
  1. Consideration
  1. [29]
    Section 114(3) of the PS Act contains the mandatory decision criteria for temporary employment conversions to permanent, where the chief executive considers:
  • there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
  • the employee is suitable to perform the role; and
  • any requirements of an industrial instrument are complied with in relation to the decision.
  1. [30]
    Section 114(4) of the PS Act provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity."
  2. [31]
    The Delegate identified that there "is a continuing need for the role of Advanced Care Paramedic to be undertaken in various locations across Queensland" and that the Appellant is suitable to perform the role. With regard to the Respondent's genuine operational requirements, the Delegate determined "to offer [the Appellant] conversion on a permanent basis" which was "contingent upon [the Appellant's] acceptance of placement into a genuine vacancy (as outlined below) which may not be at [his] existing location."[10]
  3. [32]
    Section 114(3)(a)(i) of the PS Act prescribes the Delegate to consider conversion to permanent employment in the employee's role, or a role that is substantially the same. The Respondent submitted that in reviewing the requirements of s 114(3) of the PS Act, they determined the mandatory criteria were met and as such, made an offer to convert the Appellant's employment to "the same" role of Advanced Care Paramedic.[11]
  4. [33]
    In accordance with cl 12.1 of the Directive, the Delegate outlined the conditions in which permanent employment could be offered, which were at:
  • Mount Isa, North West District
  • Warwick, Darling Downs District
  • Goondiwindi, Darling Downs District
  1. [34]
    Pursuant to cl 12.3 of the Directive, the chief executive cannot convert a public sector employee to employment on a permanent basis, unless the employee accepts the terms and conditions of the offer of employment. In the Appellant's case, the conditions of employment were that he would be employed at a different location from where he is currently.
  2. [35]
    The Delegate explained that the present casual nature of the Appellant's employment arrangement in his current Region is operationally required as:

Whilst you have been continuously employed as a non-permanent employee, your engagement to date within your existing Region would accurately be categorised as being utilised for one or more of the following reasons:

  • filling a temporary/short-term vacancy arising from an absence;
  • performing work necessary to meet an unexpected short-term increase in workload;
  • filling gaps in work rosters and other short-term increases in workload where work patterns and demand are both variable and difficult to predict; and/or
  • filing (sic) a position for which work hours are irregular, informal, flexible, occasional or non-rostered.

QAS workforce planning and management practices are designed to ensure the QAS can achieve effective staffing levels through the proper allocation of employees throughout the organisation to ensure we fulfil our service obligations in all QAS locations. This includes incentivising opportunities in rural and remote locations and ensuring permanent employment opportunities are offered in a fair and equitable manner.

The QAS addresses this in part through the employee transfers and remote area incentive arrangements whereby incentives are offered for employees to accept placements in difficult to fill locations with the guarantee of having priority transfer status to the location of their choosing once the service has been completed. This ensures the QAS maintains the ability to move employees around the State to fulfil our service obligations.

The QAS is also required to maintain vacant positions to enable graduate training opportunities for new Advanced Care Paramedics coming into the system to ensure their clinical readiness as an independent practitioner. This ensures new graduates receive adequate supervision and exposure to the varying clinical situations and requirements for the role within the first 6 months which can only be delivered at stations equipped with appropriate staffing levels and clinical workload.

  1. [36]
    The Respondent submitted that the Decision is not an appealable conversion decision under ss 131 or 129 of the Act, as it is not a decision not to convert the employment of the Appellant, nor is it a decision about the hours of work offered.[12] The Respondent further submitted that they were unable to offer a permanent position within the Sunshine Coast and Wide Bay Region based on the Appellant's preferences, due to their being no vacant capacity and their operational requirements.
  2. [37]
    In response to this, the Appellant argued that the Respondent was unable to offer him a position within the Sunshine Coast and Wide Bay Region due to there being "no vacant capacity and the operational requirements". As a result, it was a decision not to convert the Appellant's employment to permanent. The Appellant referred the decision of Keenan v State of Queensland (Queensland Health)[13] in arguing that a budgeted vacancy is not required for conversion to permanent employment.
  3. [38]
    I do not accept the Appellant's arguments that a decision not to convert his employment was made.
  4. [39]
    The Respondent is not required to consider conversion into the specific position that the Appellant is employed in, or the specific location of the position. The requirement is for the Respondent to consider whether there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role. The Respondent has done that in my view.
  5. [40]
    The Respondent submitted that the role of Advanced Care Paramedic is the same in various locations across the State, as they undertake the same roles and duties, and their applicable industrial instruments, base pay, conditions and entitlements are the same across locations.[14] While some regional locations may require additional travel, the Respondent submitted that the nature of the duties and work to be undertaken in the role of Advanced Care Paramedic "is the same in the context in which they are employed".[15] Alternatively, the Respondent submitted that if they are wrong about the roles being 'the same', they are certainly 'substantially the same', as determined by Industrial Commissioner Pidgeon in Ewart v State of Queensland (Queensland Ambulance Service).[16]
  6. [41]
    The Appellant did not make any submissions regarding whether he considered the role offered to be 'the same' or 'substantially the same'. Rather, the Appellant's submissions in reply centred on the argument that there need not be a vacancy for the Respondent to convert the Appellant's employment to permanent in the Sunshine Coast and Wide Bay Region.
  7. [42]
    While a budgeted vacancy is not required for a conversion to take place, the circumstances the Appellant draws my attention to in Keenan v State of Queensland (Queensland Health)[17] are clearly distinguishable to the present case. In Keenan v State of Queensland (Queensland Health),[18] the Department concluded Mr Keenan should be employed on a temporary basis because he was backfilling an absent incumbent. I found in that case that:
  1. [84]
    Here the Department has simply concluded the Appellant should be employed on a temporary basis because he is backfilling an absent incumbent. That is not sufficient in my view, particularly where I have also concluded that the Department failed to discharge the onus of evidencing consideration of roles that are substantially the same.
  1. [85]
    Without specific evidence indicating the Appellant's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that an additional permanent staff member would pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant.
  1. [86]
    A budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees.
  1. [43]
    It is not the case that the Respondent failed to consider conversion into the Appellant's role, or roles that are substantially the same.
  2. [44]
    The Respondent has appropriately considered and offered the Appellant permanent employment in the role of Advanced Care Paramedic, at various locations across the State.
  3. [45]
    I concur with the view expressed by Industrial Commissioner Pidgeon in Ewart v State of Queensland (Queensland Ambulance Service)[19] with respect to whether the role offered was 'the same' or 'substantially the same' as the Appellant's current role of Advanced Care Paramedic, where she held:
  1. [59]
    If s 114(3)(a) referred to position, this would create a different scenario. In fact, if s 114(3)(a) referred to position, it may be that the decision would have involved a finding that there is an ongoing need for someone to perform the position Mr Ewart currently performs and that the criteria had been met. QAS would have then moved to explaining why conversion was not being offered based on genuine operational reasons meaning conversion is not viable or appropriate.
  1. [60]
    The role subject of this decision is that of Advanced Care Paramedic. It seems to me that once the criteria set out in s 114(3) had been met, QAS had to make an offer to convert Mr Ewart's employment. QAS has done so. QAS employs Advanced Care Paramedics across the state. The offer is permanent employment in the role of Advanced Care Paramedic in a range of locations.
  1. [61]
    In my view, the role of Advanced Care Paramedic is the same in different locations of the state. A role substantially the same as Advanced Care Paramedic would be a different role requiring the same or similar skills and qualifications; receiving the same or similar pay and conditions.
  1. Is the Advanced Care Paramedic role the 'substantially the same' in different locations?
  1. [62]
    I have had regard to the argument Mr Ewart makes that Advanced Care Paramedic roles in other parts of the state are not 'substantially the same' as Advanced Care Paramedic on the Gold Coast based on an analysis of matters such as those considered by the Fair Work Commission in Stratacrete. For the reasons set out above, I do not think the role of Advanced Care Paramedic in another part of the state is a different role to that of Advanced Care Paramedic on the Gold Coast. I am of the view that the roles are the same. However, if I am wrong on that, I will consider the matters listed in Stratacrete and consider whether the role of Advanced Care Paramedic in other parts of the state is substantially the same as the role of Advanced Care Paramedic on the Gold Coast.
  1. [63]
    While I am considering the decision in Stratacrete, any such consideration needs to be undertaken in the context of that decision addressing the matter of similarity of the role for the purpose of redundancy payments. The current matter occurs in the context of a state-wide public sector, a feature of which is that there are many locations across the state where the same or similar work is undertaken under state-wide employment arrangements.
  1. [64]
    It seems to me that Advanced Care Paramedics undertake the same role and duties in various contexts across the state. I accept the submission of QAS that the industrial instruments, base pay, conditions and entitlements applicable to Advanced Care Paramedic roles are the same across locations. All roles within the public sector are subject to state-wide transfer and employment procedures and to that extent, matters such as location and travel will differ across locations but I do not think they serve to make the role substantially different. A state-wide context may also mean that workloads, rosters, cultural or socio-economic complexities, location-specific challenges and the like will vary, however the nature of the work and the duties to be undertaken will be that expected of an Advanced Care Paramedic in the context in which they are employed. It may be that in some regional locations, the travel required to get to and from work will considerably vary greater than or less than others. It may also be that there is cost involved with relocating to a position, however this is a feature of a state-wide system. Opportunities for career advancement or to undertake higher duties positions may also differ from place to place but I do not find that such differences serve to make the role substantially different.
  1. [65]
    In my view, if the roles of Advanced Care Paramedic in different parts of the state are not the 'same', they are certainly 'substantially the same'.
  1. [46]
    In light of the above, I find that the Respondent has made an offer of permanency in accordance with the applicable legislation and Directive. The decision is therefore not appealable as it is not a decision "under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis".[20]
  1. Conclusion
  1. [47]
    For the reasons I have outlined above, the Commission does not have jurisdiction to hear this appeal. I will not go on to consider whether the decision was fair and reasonable.
  2. [48]
    I order accordingly.
  1. Orders
  1. The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[2] Industrial Relations Act 2016 (Qld) s 562B(2).

[3] Public Sector Act 2022 (Qld) s 131(1)(a).

[4] Ibid s 129(a) (emphasis added).

[5] Ibid s 129(b).

[6] Respondent's submissions filed 21 May 2024, [3].

[7] Ibid [5]-[6].

[8] Appellant's submissions filed 14 May 2024, [3].

[9] Appellant's submissions in reply filed 28 May 2024, [1].

[10] Appellant's submissions filed 14 May 2024, Attachment B.

[11] Respondent's submissions filed 21 May 2024, [11], [13].

[12] Public Sector Act 2022 (Qld) s 129(a)-(b).

[13] [2023] QIRC 297.

[14] Respondent's submissions filed 21 May 2024, [14].

[15] Ibid [16].

[16] [2023] QIRC 304.

[17] [2023] QIRC 297.

[18] Ibid.

[19] [2023] QIRC 304.

[20] Public Sector Act 2022 (Qld) s 129(a).

Close

Editorial Notes

  • Published Case Name:

    Raymond v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Raymond v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2025] QIRC 25

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    28 Jan 2025

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
Ewart v State of Queensland (Queensland Ambulance Service) [2023] QIRC 304
3 citations
Keenan v State of Queensland (Queensland Health) [2023] QIRC 297
3 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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