Drage v Gold Coast Hospital and Health Service
[2024] QSC 255
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- Notable Unreported Decision
- Drage v Gold Coast Hospital and Health Service[2024] QSC 255
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Drage v Gold Coast Hospital and Health Service[2024] QSC 255
Drage v Gold Coast Hospital and Health Service[2024] QSC 255
SUPREME COURT OF QUEENSLAND
CITATION: | Drage v Gold Coast Hospital and Health Service [2024] QSC 255 |
PARTIES: | STEVEN GEOFFREY DRAGE (applicant) v GOLD COAST HOSPITAL AND HEALTH SERVICE (first respondent) STATE OF QUEENSLAND (QUEENSLAND HEALTH) (second respondent) |
FILE NO/S: | BS 4176 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Respondents’ interlocutory application filed 28 June 2024; Applicant’s interlocutory application filed 5 July 2024 |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 17 October 2024, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 October 2024 |
JUDGE: | Bradley J |
ORDERS: | THE ORDER OF THE COURT IS THAT:
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – GENERALLY – where the applicant was employed by the respondents – where, in September 2021, the second respondent (Queensland Health) issued directives requiring all employees to be vaccinated against COVID-19 – where the applicant applied for an exemption from the COVID-19 vaccination requirement – where the exemption was refused – where, at the applicant’s request, Queensland Health twice reviewed the decision to refuse the exemption and maintained its refusal – where, in February 2022, Queensland Health terminated his employment on the ground that the applicant, without reasonable excuse, had contravened the directive requiring him to be vaccinated against COVID-19 – where, in March 2022, the applicant initiated Queensland Industrial Relations Commission (QIRC) proceedings seeking reinstatement of his employment – where the QIRC matter proceeded to a two day hearing in December 2023 – where, on the date the parties were scheduled to make closing submissions in March 2024, with the QIRC’s leave, the applicant discontinued the QIRC proceeding – where, contrary to the limitation periods in the Judicial Review Act 1991 (Qld) (JRA), the applicant filed an application in April 2024 seeking judicial review of the respondents’ decisions to refuse his application for an exemption from the COVID-19 vaccination requirement – where the applicant seeks an extension of time to pursue his application for judicial review – whether the limitation period should be extended ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – where, in June 2024, the respondents filed an application seeking dismissal of the application for judicial review pursuant to ss 12, 13, 26, 46 or 48 of the JRA – whether the application for judicial review should be dismissed Human Rights Act 2019 (Qld), s 49 Industrial Relations Act 2016 (Qld), s 9, s 316, s 318, s 321, s 322, s 447, s 448 Judicial Review Act 1991 (Qld), s 12, s 13, s 20, s 26, s 43, s 46, s 48 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, cited Chibanda v Chief Executive, Queensland Health [2018] QSC 128, considered Doyle v Chief Executive of General Staff (1982) 71 FLR 56; [1982] FCA 124, cited Gallow v Dawson (1990) 64 ALJR 458; [1990] HCA 30, cited Hall v City of Burnside [2006] SASC 283, cited Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176, considered Mahaffey v Thomson [2002] QSC 45, considered Witthahn v Chief Executive, Hospital and Health Services (2021) 9 QR 642; [2021] QCA 282, cited |
COUNSEL: | The applicant appeared on his own behalf, assisted by his McKenzie friend H Stancliffe C Murdoch KC, with M Brooks, for the respondents |
SOLICITORS: | The applicant appeared on his own behalf Minter Ellison for the respondents |
- [1]The applicant wishes to challenge decisions made by the first respondent (the Hospital) and the second respondent (Queensland Health). On 4 April 2024, he filed his application for review, under s 43 of the Judicial Review Act 1991 (Qld) (JRA), or perhaps it was an application in part for a statutory order of review, under s 20 of the JRA. He has asked the Court to allow him further time until that date to make the application. The request for an extension is under s 46(1)(b), or perhaps s 26(1)(b) of the JRA.
The decisions
- [2]The background and the decisions can be described relatively briefly.
- [3]On 30 September 2021, Queensland Health re-issued Health Employment Directive No. 12/21 (the Directive).[1] It set out, in cl 8, certain mandatory requirements for existing health service employees employed in a statutory body established under the Hospital and Health Boards Act 2011 (Qld) (HHBA) or in Queensland Health.[2] Existing employees were required to have:
- received a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose by 31 October 2021;
- provided a line manager or uploaded to a designated system evidence of such vaccinations within seven days of receiving each dose; and
- received prescribed subsequent doses of a COVID-19 vaccine within any recommended timeframe following the second dose.
- [4]It is common ground that the Directive was not a legislative instrument in nature, but that it was a statutory instrument.
- [5]The applicant was an employee of Queensland Health. He was employed in the Hospital. The Hospital was a statutory body established under the HHBA.
- [6]On 30 September 2021, the applicant applied for an exemption under cl 10 of the Directive on the ground of genuinely held religious beliefs and on the ground that exceptional circumstances existed. If granted an exemption, the mandatory requirements for receiving doses of a COVID-19 vaccine (and providing evidence of having done so) would not apply to the applicant.
- [7]On 25 October 2021, Queensland Health[3] advised the applicant that it had decided to refuse to grant him an exemption.
- [8]On 9 November 2021, the applicant sought an internal review of the earlier refusal.
- [9]On 24 November 2021, Queensland Health advised the applicant it had again refused to grant him an exemption.
- [10]On 27 November 2021, the applicant requested a further review of the decision to refuse his exemption application. Queensland Health did not respond to this request.[4]
- [11]In the absence of an exemption, Queensland Health suspended the applicant from duty, first with pay and later without pay on the ground that he was not vaccinated.
- [12]On 10 February 2022, Queensland Health terminated his employment. The Court was told this decision was made as a form of disciplinary action under s 188(1) of the since repealed Public Service Act 2008 (Qld), on the ground that the applicant had contravened, without reasonable excuse, a direction given to him by a responsible person within the meaning of s 187(1)(d) of that act. That day, Queensland Health advised the applicant that he could lodge an application for reinstatement with the Queensland Industrial Relations Commission (QIRC) within 21 days of his termination in accordance with chapter 8, part 2 of the Industrial Relations Act 2016 (Qld) (IRA). Queensland Health directed the applicant to the QIRC website to find information about lodging an application.
- [13]On 4 March 2022, the applicant lodged an application for reinstatement with the QIRC. On 11 April 2022, at a conciliation conference, the applicant says he raised an issue about the operation of ss 51A and 51B of the HHBA and the validity of the Directive. In March 2023, the respondents succeeded in having the applicant’s reinstatement application dismissed by Deputy President Hartigan. He appealed that decision. On 27 September 2023, the QIRC President upheld the applicant’s appeal, reinstating the reinstatement application.
- [14]On 10 February 2023, the applicant had complained to the Queensland Human Rights Commission of an alleged contravention of his rights under the Human Rights Act 2019 (Qld) (HRA) or the Anti-Discrimination Act 1991 (Qld). On 6 November 2023, at a conciliation of this complaint, the applicant says he raised his concern that Queensland Health had not acted lawfully.
- [15]On 19 and 20 December 2023, both the reinstatement application and the HRA complaint came before Vice President of the QIRC for hearing. The case did not conclude, and after a further mention, the parties were scheduled to make closing submissions on 7 March 2024. On that day, the applicant sought and was given leave to discontinue the proceedings in the QIRC.
- [16]In this Court, the applicant seeks an order quashing the decisions to deny him an exemption, to terminate his employment, and to record a finding of misconduct on his employment record. He seeks an injunction to restrain the “enforcement of the termination and the misconduct finding”, presumably by Queensland Health. He also seeks, or may seek, a declaration that the decision of Queensland Health to issue the Directive was unlawful, and a declaration that the decisions of Queensland Health to refuse him an exemption and the decision to terminate his employment were also void or unlawful. In each instance, the applicant relies on s 58 of the HRA.
- [17]The respondents oppose the Court allowing the applicant further time. They also ask the Court to dismiss the applicant’s application on seven alternative grounds, relying on ss 12, 13, 26, 46 or 48 of the JRA.
- [18]The respondents’ first two grounds for dismissal are, in effect, that the applicant failed to make his application within the time limited by the JRA. Until the Court decides whether it will allow the applicant further time and so extend the period for making his application, it cannot be known with certainty that the applicant has failed to make his application within time.
- [19]Some, if not all, of the respondents’ other five alternative grounds for dismissal raise issues that may be relevant to the Court’s decision on whether to allow the applicant further time to make his application.
The extension of time
- [20]As Applegarth J observed in Chibanda v Chief Executive, Queensland Health (Chibanda):
“Judicial review of administrative decisions should be undertaken promptly. The requirement to bring a proceeding within the stipulated or a reasonable time is normally essential to that outcome. As was observed in Aurukun Bauxite Development Pty Ltd v Queensland, a party is “not entitled to arrogate the decision when to start a proceeding to themselves, in violation of a statutory requirement to bring it within a particular timeframe…” Entities and individuals are entitled to proceed on the basis that a decision is not going to be the subject of a judicial review challenge if no such challenge is brought within a reasonable time.
Ordinarily, a proceeding commenced outside the limitation period should not be entertained, unless the applicant shows an acceptable explanation for the delay, and that it would be fair and equitable in the circumstances to extend the time. The absence of an explanation is a persuasive factor against granting an extension of time.
The prospects of success of an application may be a relevant factor. An application which is without prospects is unlikely to be granted an extension of time, even if there is a satisfactory explanation for delay.”[5]
- [21]The applicant seeks the equivalent of a prerogative writ challenging the efficacy of the acts or decisions of two public bodies, or perhaps only one. There is a public interest in the finality of such matters. In this case, the delay between the decisions challenged and the institution of proceedings requires that the applicant show it is proper to grant the extension. The Court’s discretion to extend time serves to enable the Court to do justice between the parties, ensuring that time limitations “do not become instruments of injustice.”[6] Where an applicant shows that strict compliance will work an injustice, the time should be extended.
- [22]The general approach to an application to extend time has remained consistent across Commonwealth and State statutory schemes, since the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment,[7] which, denuded of citations and case references, may be expressed in this way:
- Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. It is a pre-condition to the favourable exercise of the discretion that the applicant for an extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.
- Action taken by the applicant, other than by making an application for review under the JRA, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem.
- Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
- The mere absence of prejudice is not enough to justify the grant of an extension. Public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
- The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
- Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion.
- [23]The parties’ submissions dealt with these matters in the ways set out below.
The length of the delay
- [24]The applicant commenced this proceeding on 4 April 2024. So, the period between the last decision (on 10 February 2022) and that date was about 22 months. By any measure, this is a significant period of delay.
The explanation for the delay
- [25]In its letter of 10 February 2022, Queensland Health did not make any reference to the right to seek judicial review of its decision under the JRA. The applicant says he was not aware at that time that he could seek judicial review, nor was he aware of the fixed period for making an application for review (or a statutory order for review). In the circumstances, the applicant says he was misled as to his legal rights by Queensland Health’s letter.
- [26]The respondents assert that Queensland Health was not obliged to advise the applicant of any other legal rights available to him in relation to the decision to terminate his employment. Queensland Health says it was obliged to refer the applicant to the QIRC remedy by a provision in a now superseded discipline directive made by the Public Service Commission.
- [27]The respondents’ submissions may well be correct. They do not answer the applicant’s contention that he was misled by the Queensland Health letter because it directed his attention solely to a remedy in the QIRC, with a very short time frame. Nor is the contention by the respondents a basis on which the Court could be satisfied that the applicant was not misled. Indeed, the respondents do not challenge the applicant’s evidence that he was misled.
- [28]To avoid any doubt, in light of the submissions made on behalf of the applicant, I do not find that Queensland Health was under a duty to advise the applicant of the remedies that are available to him under the JRA.
- [29]The applicant says he is a person of very limited financial resources because of the Hospital’s decision to dismiss him. This, he says, significantly affected his ability to safeguard his own interests. He has not had the benefit of legal representation. The respondents concede in their written submissions that the applicant “misapprehends court processes and procedures, and the powers of commissioners and judges.” In the circumstances it seems churlish for the respondents to assert that the applicant was “free to make any enquiries or applications he wished to make outside of the proceedings he commenced in the [QIRC].”
- [30]The applicant says he raised concerns about whether the QIRC was the appropriate forum in which to seek a remedy but was assured by the respondents that he was in the right place. One might think that he had enough to handle in dealing with the respondents’ initially successful application to dismiss the reinstatement application without thinking about exploring other avenues.
- [31]The applicant says it was not until about 27 February 2024, when the decision in Johnston v Carroll[8] was published, that he realised that he could seek a review of the respondents’ decisions under the JRA.
- [32]On 7 March 2024, the transcript of the QIRC hearing records that Ms Stancliffe (who, as she did at this hearing, appeared as the applicant’s McKenzie friend) told the Vice President that “this case is being heard in the wrong jurisdiction due to errors of law by the decision-maker.” His Honour questioned Ms Stancliffe about this, and the following exchanges occurred:
“MS STANCLIFFE: Well, we believe it should be referred to a higher court, your Honour, to deal with the human rights aspects and how it’s been interpreted under the Act.
HIS HONOUR: Well, you’ve brought the application here. So ---
MS STANCLIFFE: With respect, your Honour, because that’s where we were told to bring it through the respondents when we were receiving the termination.
HIS HONOUR: Right. Well, if you think you’re in the wrong jurisdiction, have you made any attempts to file it in another jurisdiction?
MS STANCLIFFE: I haven’t, as yet, your Honour, but that’s what we seek to understand today. You know I am not a lawyer. I am representing my husband. We believe it needs to be held in a higher jurisdiction and a judicial review of the errors of law that have occurred.
HIS HONOUR: Well, that’s purely a matter for you then. If you want to discontinue here and commence somewhere else, that’s a matter for you.
MS STANCLIFFE: As long as that, your Honour, isn’t being dismissed on the fact that there’s no basis for the claim.
HIS HONOUR: Well, I’ve made no ruling on it. But if you discontinue here, all matters before this Commission, including your anti-discrimination and this matter which have been combined to be heard, would come to an end. And you’d need to take your own advice, or get some advice, on what jurisdiction you need to file in, if that’s your view.
MS STANCLIFFE: That is our view, your Honour. Because as we spoke in the hearing in December, we raised errors of law with regards to section 51B of the Hospital and Health Board Act under which they were required to consider the human rights, and that if a directive is inconsistent with those rights, it – the human right overrides that directive. …
…
HIS HONOUR: Well, I think I may have said then that I think I’ve got the jurisdiction, but these are questions for you to decide, ultimately.
MS STANCLIFFE: The applicant seeks to take it to the higher court.”
- [33]His Honour then asked the respondents’ counsel, Dr Brooks, about this topic:
“HIS HONOUR: Well, what do you want to do, Dr Brooks?
DR BROOKS: Thank you Vice President. As we said at the outset of the hearing in December, we think the tribunal does have jurisdiction to deal with the matters that have been raised.
… There is, of course, the opportunity to appeal, as the applicant is aware, because they’ve previously done it. Appeal to the Industrial Court, and of course then to the Court of Appeal, and then to the High Court.
… So there is a pathway available. But I won’t say anything else. It is a matter for the applicant, of course.”
- [34]His Honour then continued his exchange with Ms Stancliffe:
“HIS HONOUR: So ---
MS STANCLIFFE: Your Honour, I’ll just – the applicant seeks to have the case heard in a higher court, your Honour.
HIS HONOUR: So you wish to discontinue both matters here?
MS STANCLIFFE: Yes, your Honour.
HIS HONOUR: Very well. You know, I’ve tried to make myself clear. I think I have jurisdiction to do it. I’m – you know, you need to be cautious about it. But if that’s your – I can discontinue it on the record.”
- [35]In these exchanges, the applicant did not expressly refer to s 49 of the HRA. Nor did the respondents’ counsel. So, no party drew the Vice President’s attention to that provision. It provides that:
- “49Referral to Supreme Court
- (1)This section applies if, in a proceeding before a court or tribunal—
- (a)a question of law arises that relates to the application of this Act; or
- (b)a question arises in relation to the interpretation of a statutory provision in accordance with this Act.
- (2)The question may be referred to the Supreme Court if—
- (a)a party to the proceeding has made an application for referral; and
- (b)the court or tribunal considers the question is appropriate to be decided by the Supreme Court.
- (3)If a question is referred under subsection (2), the court or tribunal referring the question must not—
- (a)make a decision about the matter to which the question is relevant while the referral is pending; or
- (b)proceed in a way or make a decision that is inconsistent with the Supreme Court’s decision on the question.
- (4)If a question is referred under subsection (2) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.
- (5)Despite any other Act, if a question arises of a kind mentioned in subsection (1), the question may only be referred to the Supreme Court under this section.”
- [36]For the purposes of this hearing, I accept that the applicant was misled by Queensland Health’s letter and, being impecunious and without the benefit of legal advice, he pursued his challenge to the respondents’ decisions in the QIRC.
- [37]In the QIRC, the applicant sought to have his claims referred to the Court pursuant to s 49 of the HRA. That request was not understood by the Vice President. This misunderstanding led his Honour to invite the applicant to discontinue the proceedings in the QIRC and commence proceedings in this Court. The respondents, perhaps sharing the same misunderstanding, did not alert his Honour to the statutory power to refer under s 49 of the HRA.
- [38]Had the QIRC proceedings been referred to the Court, there would be no issue about an extension of time or indeed about a pre-emptive dismissal of the application for review. In a sense, it is the commencement of this proceeding, in accordance with the Vice President’s suggestion, that has put the applicant in a position where needs to obtain an extension of time.
Arguable case for review
- [39]The respondents accepted this hearing should proceed on the basis that the applicant had an arguable case for judicial review.[9] So, it is not necessary to further consider that topic.
Any prejudice to the respondents
- [40]Between 10 February 2022, when Queensland Health terminated his employment, and 4 April 2024, when the applicant commenced this proceeding, the applicant did not rest on his rights.[10] From 4 March 2022 to 7 March 2024, he conducted his proceeding in the QIRC, to which the respondents were parties.[11] The applicant did not allow the respondents to believe the matter had been finally concluded due to his failure to file an application for review.
- [41]The respondents submit that they will be prejudiced by an extension of time, because “the recollections of key witnesses will potentially be diminished”. This submission was made in circumstances where those key witnesses apparently gave evidence about the applicant’s termination as recently as 19 and 20 December 2023. That is fewer than four months before the application for review was filed. Whether the witnesses gave evidence in written form or orally, the respondents’ submission about the potential of diminished memories has little weight.
A “heavier duty to act expeditiously”
- [42]The respondents contend that the applicant was under a duty to “act expeditiously” because any challenge to the respondents’ decisions could potentially affect other Queensland Health employees that were subject to the Directive, including those whose employment was terminated for an alleged failure to comply with it. They also say the applicant was bound to act quickly because his challenge had the potential to affect the administration of the Hospital.
- [43]In most applications under the JRA, the Court is concerned with matters affecting public administration. Even in cases seeking to protect individual rights, the Court is concerned with “the extent of power and the legality of its exercise”,[12] which necessarily has the potential to affect other individuals subject to the same or similar administrative action.
- [44]As Doyle CJ observed in Hall v City of Burnside:
“The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.”[13]
- [45]Without deciding whether the applicant was under a heavier duty, I am satisfied that the applicant did act expeditiously. However, on his case, he was misled into thinking that the QIRC was the only forum in which to challenge the decision. In any event, the applicant was pursuing other possible means of challenge throughout the relevant period.
Preliminary conclusion on an extension of time
- [46]There is an acceptable explanation for the applicant’s delay in commencing the present proceeding. His delay was not intentional in any relevant sense. It was a result of a bona fide mistake or blunder. By it, the applicant did not manifest any contempt for the JRA or the process of the Court; certainly none that might itself justify denying him an extension of time.
- [47]There is no evidence of any prejudice to the respondents caused by the delay, other than the potential prospect of witnesses’ recollections which is dealt with at paragraph [41] above. Within the usual limitation period, they were aware of the applicant’s challenge to their decisions. They could have taken, in good time, any prudent measures to meet the challenge. The applicant commenced this proceeding within a month of discontinuing the QIRC proceeding. Although his reason for persisting with the reinstatement application until March 2024 may bear closer examination, the applicant would suffer an injustice if his challenge to the decisions were excluded because of the late realisation that he was, in his view, in the incorrect forum.
- [48]In the circumstances, before considering the other matters raised by the respondents in their application to dismiss, it would appear to be fair and equitable to grant the applicant an extension to 4 April 2024.
Dismissal of the application for review
- [49]As noted above, in addition to the two challenges based on the commencement of the proceeding after the usual statutory periods had expired, the respondents advance five alternative grounds for dismissal of the application for review. These are as follows:
- The first is that the applicant is entitled to seek a review of the respondents’ decisions by another court, tribunal, or person under another law, and having regard to the interests of justice, the Court should dismiss the application.
- Secondly, that the Court should exercise its discretion to dismiss the application because the applicant has sought a review of the respondents’ decisions by another court otherwise than under the JRA.
- Thirdly, that the Court should exercise its discretion to dismiss the application because the applicant is entitled to seek a review of the respondents’ decisions by another court under other legislation that makes adequate provision for such a review.
- Fourthly, that the Court should exercise its discretion to dismiss the application because it would be inappropriate for the proceedings to continue.
- Lastly, that the Court should exercise its discretion to dismiss the application because the application is an abuse of the process of the Court.
Whether the application for review should be dismissed because of the prior review in the QIRC
- [50]The first challenge concerns whether there was a prior review. The applicant sought to challenge Queensland Health’s decision to terminate his employment in the QIRC. That process continued until the QIRC ended it at the applicant’s request.
- [51]The respondents say that the “matters” before the QIRC “related to” Queensland Health’s decision not to grant the applicant an exemption and its decision to make the Directive. They say “matters before” the QIRC included whether the decisions were contrary to law, whether the Directive was inconsistent with the HRA, whether a relevant law supported the requirement to be vaccinated, whether limits on the applicant’s religious beliefs were lawful, proportionate or demonstrably justified, whether Queensland Health’s decision to dismiss the application limited his human rights, whether the applicant’s request for an exemption was given genuine, lawful and reasonable consideration, and whether the chief executive had power to override the requirement to act in accordance with the law by operation of the Directive or ss 51A or 51B of the HHBA.
- [52]The respondents submit that the “matters” before the Court in this application for review “encapsulate those matters ventilated before” the QIRC. Later in the written submissions, the respondents say “the matters before this Court have been heard in full” by the QIRC.
- [53]In an application for reinstatement, the QIRC may order an employer to reinstate an employee who was unfairly dismissed.[14] The QIRC may also:
- make any order it considers necessary to maintain the continuity of the employee’s employment or service;
- order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
- order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.[15]
- [54]If the QIRC considers reinstatement would be impracticable, it may order the employer to re-employ the employee in another available and suitable position,[16] and it may order the employer to pay the employee an amount of compensation, within certain limits and subject to certain considerations.[17]
- [55]For the purposes of a reinstatement application in the QIRC, a dismissal is unfair if it is harsh, unjust, or unreasonable.[18] These “are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated.”[19] As the respondents submit, the QIRC has statutory power to consider matters relevant to deciding whether a termination of employment was harsh, unjust, or unreasonable.
- [56]It must be accepted that the “matters” the respondents say were “before” or “ventilated before” the QIRC may have been raised in the conciliation process the QIRC was obliged to undertake before hearing the reinstatement application.[20] They could have been raised in the conciliation process, which the QIRC was obliged to undertake before hearing the reinstatement application. It is not immediately apparent that they would all have been relevant to a determination of whether the termination of the applicant’s employment was harsh, unjust, or unreasonable.
- [57]For example, the fact that the applicant sought an exemption under the Directive might be relevant to whether his dismissal, after the exemption was refused, was harsh, unjust, or unreasonable. In deciding that “matter” it seems unlikely the QIRC would have jurisdiction to declare that the exemption should have been granted. That is not within the scope of the remedies the QIRC is able to grant.
- [58]It is not necessary, and one would think not usual, for the QIRC to determine whether a dismissal was unlawful in the sense raised in this application. In a reinstatement application, the QIRC is concerned only with whether the dismissal was unfair in the statutory sense. It might be difficult to conceive of a dismissal that was unlawful, but was not harsh, unjust, or unreasonable. However, the lawfulness of the dismissal decision is not itself relevant to an entitlement to relief under ss 321 or 322 of the IRA. Perhaps, as the respondents say, the QIRC was “less formal and available for the ventilation and review of the applicant’s matter”.
- [59]I reject the respondents’ submission that the present case is like that in Chibanda.[21] Although Queensland Health terminated the employment of that applicant, he did not seek a judicial review of that decision. He challenged the decision of the Medical Board of Queensland not to renew his special purpose registration under the Medical Practitioners Registration Act 2001 (Qld) in January 2010, the decision of the Director General of Queensland Health in January 2011 to approve a report on allegations of suspected official misconduct, and the decision of the Medical Board of Australia in March 2012 to take no further action against him. That applicant filed his application in November 2017, between five and a half to seven and a half years after the relevant decisions were made.
- [60]At first instance, Applegarth J found that there was no adequate explanation for the delay in filing the application for judicial review and that justified the dismissal of the application.[22] There was, in that case, an express statutory right of appeal to QCAT in respect of the decision to refuse to renew the applicant’s registration. An appeal was filed within time and then withdrawn, but this was not the basis on which the extension of time was refused, whether at first instance or on appeal.
Whether adequate provision is made for review by the QIRC under the IRA
- [61]The respondents submit that the QIRC is “the very tribunal designated to consider the Decision/s the subject of the substantive application” and that it has “broad jurisdiction to deal with any other relevant matters in issue in these proceedings”. The respondents say the matters now before the Court are “at their core, industrial matters”.
- [62]
- [63]The QIRC has jurisdiction to hear and decide “all questions … arising out of an industrial matter” or “involving deciding the rights and duties of a person in relation to an industrial matter” or that “it considers expedient to hear and decide about an industrial matter”.[25]
- [64]The respondents say the matters before the Court are “industrial matters” within the meaning of s 9(1) of the IRA because they are matters that affect the rights of employees. The respondents do not rely on schedule 1 of the IRA.[26]
- [65]Of course, the respondents do not contend that the Court lacks jurisdiction to hear and determine the application for review. It is common ground that each of the disputed decisions is a decision to which the JRA applies. The QIRC has no jurisdiction to determine the lawfulness of any of the decisions pursuant to the JRA. As the Court of Appeal noted in Witthahn v Chief Executive, Hospital and Health Services,[27] whatever might be encompassed within the QIRC’s exclusive jurisdiction, a claim under the JRA does not fall within its domain.
- [66]The lawfulness of the Directive does not appear to be within the jurisdiction of the QIRC, nor does the respondents’ refusal to grant the applicant an exemption under the Directive. In the circumstances, I am not satisfied that chapter 8, part 2 of the IRA makes adequate provision for the review the applicant seeks.[28] There does not appear to be any other means by which the review could be brought within the jurisdiction of the QIRC. It follows that I am not persuaded that the QIRC is the “proper forum for the ventilation of these matters” or “the correct and competent jurisdiction”, as the respondents submit. The respondents’ analogy with Mahaffey v Thomson,[29] in my view, is inapt. Unlike the Dairy Industry Tribunal with respect to the Queensland Dairy Authority, the QIRC is not a body designated by Parliament to consider complaints and concerns about decisions made by the Hospital or Queensland Health under a directive made pursuant to the HHBA. Nor am I persuaded that, having regard to the interests of justice, the Court should dismiss the application because other remedies were available in the QIRC.
Whether it is inappropriate to allow the application to continue
- [67]The respondents submit it “would be an inappropriate use of court resources” to allow the application to extend time. This, they submit, is because there has been a two-day hearing of the applicant’s reinstatement application in the QIRC and the parties had filed written closing submissions.
- [68]Given the conclusions expressed above, I do not accept the respondents’ submissions that it would be inappropriate to allow the application for review to continue.
Whether the application for review is an abuse of process
- [69]The respondents submit that the Court should exercise its discretion to dismiss the application because the application is an abuse of the process of the Court. The respondents rely on s 48(1)(d) of the JRA.
- [70]Although they do not contend expressly that the applicant’s conduct is vexatious, the nub of the respondents’ complaint is that they will have to deal with the applicant’s challenge to their decisions, having previously confronted the same or similar allegations in the QIRC.
- [71]The respondents do not submit it would be unjustifiably oppressive to them to allow the application for review to continue. Nor do they contend this would bring the administration of justice into disrepute. They are not faced with simultaneous proceedings in two different fora. So, the usual case for an abuse of process is not pressed against the applicant.[30]
- [72]When the applicant’s reinstatement application was discontinued, the respondents could not have thought that his dispute with them was at an end. The applicant has explained why he did not persist with his QIRC application. The respondents think he is wrong in his views about the powers of the QIRC. They think the QIRC was “a less expensive, less formal and available” forum.
- [73]These considerations, while plainly relevant, are insufficient to justify the dismissal of the present application for review as an abuse of process.
Final disposition
- [74]In the circumstances, the applicant should have an extension of time. The respondents’ application filed 28 June 2024 should be dismissed.
Footnotes
[1] The Directive was first approved on 11 September 2021.
[2] In the Directive, Queensland Health was the department, including its various divisions.
[3] Most of the communications with the applicant were by officers with positions within the Hospital. The Court was told that these communications, and the decisions to which they relate, were made by these officers as authorised delegates of the Director-General of Queensland Health. So, I have referred to them as communications and decisions of Queensland Health.
[4] The material before the Court refers to a meeting of a Queensland Health panel considering the request for a further review on 1 December 2021.
[5] [2018] QSC 128 at [19]-[21], also citing: Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at 665; and Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372.
[6]Gallow v Dawson (1990) 64 ALJR 458 at 459 (McHugh J).
[7] (1984) 3 FCR 344.
[8] [2024] QSC 2 (Martin SJA).
[9] The respondents expressly did not concede that the applicant’s substantive application had any merit.
[10]Doyle v Chief Executive of General Staff (1982) 71 FLR 56 at 60 (Fisher J).
[11] Or at least the relevant decision-maker Queensland Health was a party.
[12]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J).
[13] [2006] SASC 283 at [49].
[14] IRA ss 321(1)-(2).
[15] Ibid s 321(4).
[16] Ibid s 321(3).
[17] Ibid s 322.
[18] Ibid s 316.
[19]Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 28 (Sheppard and Heerey JJ), quoted with approval in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 467 (McHugh and Gummow JJ).
[20] IRA s 318(1).
[21]Chibanda at [33]-[34].
[22] Ibid. His Honour’s decision was upheld on appeal – see Chibanda v Chief Executive, Queensland Health & Anor [2020] QCA 144.
[23] IRA s 447(1)(n)(i).
[24] Ibid s 448(1)(e).
[25] Ibid s 448(1)(b).
[26] Items 16, 17 and 27 in Schedule 1 might be relevant.
[27] (2021) 9 QR 642 at [30].
[28] The QIRC could not grant the applicant the relief he seeks in the application for review, just as the Court could not grant him the reinstatement relief the QIRC could order. The QIRC could have referred the proceedings before it (or at least the HRA complaint) to the Court to determine a question of law, but that request miscarried.
[29] [2002] QSC 45.
[30] See: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518 [25] (French CJ, Bell, Gaegler and Keane JJ).