Kay v Chief Executive, Queensland Corrective Services [No 2]
[2024] QSC 195
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- Unreported Judgment
- Appeal Determined (QCA)
- Kay v Chief Executive, Queensland Corrective Services [No 2][2024] QSC 195
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Kay v Chief Executive, Queensland Corrective Services [No 2][2024] QSC 195
Kay v Chief Executive, Queensland Corrective Services [No 2][2024] QSC 195
SUPREME COURT OF QUEENSLAND
CITATION: | Kay v Chief Executive of Queensland Corrective Services (No 2) [2024] QSC 195 |
PARTIES: | TIMOTHY KAY (first applicant) KAREL DE JAGER (second applicant) RENE HENSEN (third applicant) MICHAEL SUTCLIFFE (fourth applicant) LEESA BICKERS (fifth applicant) DAVID TU’IPULOTU (sixth applicant) ANTHONY FARQUHARSON (seventh applicant) JARED TALLOTT (eighth applicant) ANTONY COOPER (ninth applicant) v CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES (respondent) |
FILE NO: | 8786 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 26 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Determined without oral argument pursuant to orders made on 5 August 2024 |
JUDGE: | Davis J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicants brought an application for judicial review – where the respondent sought to strike out parts of the application for judicial review – where the applicants sought to amend the application for judicial review – where the strike out application failed – where the amendment application failed – whether costs should be awarded Public Sector Act 2022 (Qld) Public Service Act 2008 (Qld) Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167, related |
SOLICITORS: | Sibley Lawyers for the applicants G R Cooper, Crown Solicitor for the respondent |
- [1]On 5 August 2024, I dismissed interlocutory applications brought both by the applicants and the respondent. On that day, I also ordered the parties to exchange written submissions on costs and that failing any application for leave to make oral submissions on costs, I would determine costs on the written submissions.
- [2]Written submissions were received from each party.
- [3]No application for leave to make oral submissions was made by either party.
- [4]The applicants are all employees of the State through the Department of Queensland Corrective Services. The respondent, the Chief Executive of Queensland Corrective Services (the CEQCS), during the COVID-19 pandemic directed staff to obtain vaccination from COVID-19 (the COVID-19 Directions). The applicants did not obtain vaccination, and disciplinary proceedings were commenced alleging a failure to comply with the COVID-19 Directions. In due course, the CEQCS made findings that disciplinary grounds existed in relation to each of the applicants (the Disciplinary Finding Decisions). The disciplinary proceedings have not been completed.
- [5]The applicants filed an originating application[1] to challenge decisions of the CEQCS including the Disciplinary Finding Decisions. That application sought to challenge the COVID-19 Directions as part of the challenge to the Disciplinary Finding Decisions. No relief was sought directly in relation to the COVID-19 Directions.[2]
- [6]The respondent sought to strike out the challenge to the Disciplinary Finding Decisions on four grounds:
- the lawfulness of the COVID-19 Directions was not relevant to the making of the Disciplinary Finding Decisions;
- the Disciplinary Finding Decisions were “fair treatment decisions” and consequently, could have been appealed to the Queensland Industrial Relations Commission;
- the challenge to the Disciplinary Finding Decisions fragmented an administrative process which is only complete once disciplinary orders are made; and
- it was an abuse of process to collaterally challenge the COVID-19 Directions.
- [7]The applicants brought an application to amend the originating application to:
- seek declarations that the COVID-19 Directions are invalid;
- join the Chief Health Officer (CHO); and
- seek declarations that directions given by the CHO (which are for practical purposes relevant to the COVID-19 Directions) are invalid.
- [8]I dismissed both interlocutory applications for reasons which are explained in detail in the primary judgment.[3]
- [9]The applicants seek orders that the respondent pay their costs of both interlocutory applications. The respondent seeks an order that the costs of both applications be reserved.
- [10]Both interlocutory applications failed, so in a sense, both parties had some success against the other. While the applicants’ interlocutory application was no doubt brought, at least in part, as a defensive measure to the respondent’s interlocutory application, it failed on discretionary grounds. An application to join a new party and seek declarations of invalidity of directions which have long ago expired was very ambitious.
- [11]The interlocutory applications led to consideration of various provisions of the Public Service Act 2008 (repealed) and the Public Sector Act 2022. Many of those issues would have to be determined at some point in the litigation so the costs of the respondent’s interlocutory application have not been completely wasted.
- [12]Taking everything into account, it is just for the costs of both parties in both interlocutory applications to follow the event of the final determination of the originating application.
Orders
- [13]It is ordered:
- Each parties’ costs of the applicants’ application to amend the originating application be their costs in the originating application.
- Each parties’ costs of the respondent’s application to strike out parts of the originating application be their costs in the originating application.
Footnotes
[1]Which is now an amended application. I will refer to it simply as the originating application.
[2]The full circumstances are described in the primary judgment, Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167.
[3]Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167.