Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2020] QIRC 086

The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors (2020) 4 QR 31; [2020] QSC 54

Mr G. O'Gorman of the State of Queensland (Queensland Health).

Mr A. Morison of the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees.

• [1] By application filed on 30 November 2020, the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('the Union') sought, pursuant to s 464 of the Industrial Relations Act 2016 ('the Act'), certain declarations that Senior Medical Officers ('SMOs') working in emergency departments in health facilities at Gatton, Esk, Laidley and Boonah, were entitled to receive what is referred to as a 'stand-by allowance' within the meaning of cl 2.1 of Policy C23 (QH-POL-235) of the 'Department of Health' entitled 'Senior medical officers - Terms and conditions' ('the Policy').

• [2] By application filed on 18 March 2021, the Union amended its original application for declaratory relief ('the Union's amended application for declaratory relief'). The basis of the Union's claim is that SMOs employed at health facilities referred to above, who are rostered on-call, should receive the stand‑by allowance contained in the Policy as opposed to an on-call allowance.

• [3] By Directions Order dated 23 March 2021, the State of Queensland (Queensland Health) ('the Department') was ordered to file and serve, by 6 April 2021, its response to the Union's amended application for declaratory relief.

• [4] On 1 April 2021, the Department filed its response. On the same day, the Department filed an application in existing proceedings seeking a decision, for the reasons set out in its response, that, pursuant to s 541(b) of the Act, the Commission dismisses or refrains from hearing or further hearing the Union's amended application for declaratory relief ('the Department's application to dismiss').

• [5] During a mention of the matter on 16 April 2021, the question arose as to whether the Department's application to dismiss should be heard first and separately to the Union's amended application for declaratory relief. Consequently, I directed the parties to file written submissions about that question. Both parties filed and served written submissions.

• [6] The question for my determination is whether, pursuant to r 41(2)(d) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), I should make an order directing that the Department's application to dismiss be heard first and separately to the Union's amended application for declaratory relief.

• [7] For the reasons that follow, I will make an order directing that, pursuant to r 41(1) of the Rules, the Department's application to dismiss be heard concurrently with the Union's amended application for declaratory relief.

• [8] The Department contends that the Union's amended application for declaratory relief '... is flawed, lacks sufficient particulars, is hypothetical only, and should therefore not proceed.'

• [9] The Department then relevantly submits that:

• on the basis of the efficient use of resources, its application to dismiss should be heard first and separately because if its application to dismiss is successful, then the substantive matter would not proceed; and

• it is incontrovertibly more efficient for parties not to devote time and resources on written submissions, affidavits, hearings and other preparation work on the substantive matter if that matter was otherwise to be dismissed.

• [10] The Union, submits that the power conferred by s 541 of the Act, if exercised, is one which defeats a prima facie right to have jurisdiction exercised and is therefore a power to be exercised with due circumspection on a proper consideration of the relevant materials. The Union further submits that:

• the 'procedural technicalities', upon which the Department's application to dismiss is based, would likely be addressed through the filing of further material by the Union;

• the Department does not contend that the Union's amended application for declaratory relief is vexatious, frivolous, an abuse of process or brought for any improper purpose, being the usual reasons justifying the Commission enlivening s 541(b) of the Act;

• taking the Department's application to dismiss at its highest, arguable technical points need addressing and a clear enunciation of the facts relied upon to support the Union's amended application for declaratory relief is required, which are hardly sufficient grounds to justify dismissing the Union's amended application; and

• the Department's response and application to dismiss is its latest attempt, in spite of its obligation under the model litigant principles, to frustrate and delay the proceeding rather than working with the Union to narrow the issues in dispute and efficiently bring the matter on for determination.

The application of the relevant rules and principles

• [11] Rule 6 relevantly provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense. Rule 41(1) of the Rules provides that the Commission may make a directions order about the conduct of a proceeding on the application of a party or on the initiative of the Commission. Sub-rule 41(2)(d) provides that a directions order may relate to the scheduling of conferences, mediation conferences, preliminary hearings and hearings before the Commission.

• [12] In Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health),[1] a Full Bench of the Commission considered the principles that may guide the Commission, in a case such as the present, on the question of whether an application in existing proceedings, to dismiss or refrain from hearing or further hearing a substantive application, should be heard first and separately.[2] The Full Bench relevantly stated:

• [16] First, the power to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered.

• [17] Secondly, a court is obliged to seek to give effect to the overriding purpose of the applicable rules.

• [18] Thirdly, a court begins with the proposition that it is ordinarily appropriate that all issues in the proceeding should be disposed of at one time.

• [19] Fourthly, the separate determination of an issue may prove to be an appropriate procedure where:

• the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy; or

• there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses.

• [20] Fifthly, the separate determination of an issue may prove to be an inappropriate procedure where:

• there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy;

• there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, thus possibly precluding the same judicial officer from again dealing with the matters going to the credit of the common witnesses; or

• there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from the decision in relation to that separate issue, creating a multiplicity of proceedings, interruption of the court and the undesirable fragmentation of the proceedings.

• [21] Finally, the experience of courts suggests the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation; thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.[3]

• [13] The substantive relief sought by the Union is the making of declarations.

• [14] Pursuant to s 463(1) of the Act, the Commission may, on application, make a declaration about an industrial matter. There is no reason, in principle, why the Commission should approach the exercise of its discretion to make a declaration about an industrial matter in a way that is different to that of a court which has discretionary power to grant declaratory relief.

• [15] The applicable principles in respect of the discretionary power to grant declaratory relief were summarised by Applegarth J in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors[4] where his Honour relevantly stated:

• [34] The discretionary power to grant declaratory relief is wide. However, it is "confined by the considerations which mark out the boundaries of judicial power". A judicial determination includes a "conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy". It involves the application of the relevant law to facts as found in the proceeding. The High Court in Bass v Permanent Trustee Co Ltd stated:

"It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case."

• [35] Declaratory relief must not be directed to answering "abstract or hypothetical questions".

• [36] Answers given to a question which leaves the facts unstated or do not identify them with any precision will not finally resolve a dispute or quell a controversy. The answers given "may be of no use at all to the parties and may even mislead them as to their rights."[5]

• [16] The Department submits that its application to dismiss is brought on the basis that the Union's amended application for declaratory relief '... is a mere advisory opinion, set in a factual vacuum, with no concrete situation and therefore considered hypothetical and not suitable for judicial resolution by way of declaration.' The Department further submitted that:

• while the Union has stated that SMOs based at the four facilities, who are rostered on‑call, are entitled to the stand-by allowance by virtue of the Policy, the amended application does not state how the Union '... reached the conclusion, the reasons thereof, or under what circumstances such a declaration is being sought.'; and

• the Union has not described how or why SMOs at the four facilities are entitled to the stand-by allowance.

• [17] While the discretion conferred by s 541(b) of the Act may be exercised prior to a full hearing, my opinion is that the matters raised by the Department, in its application to dismiss, are those that would ordinarily be considered as part of the matters informing the Commission of whether or not it would exercise its discretion to grant the declaratory relief sought.

• [18] This is not a case where there is a clear demarcation between the issues raised in the Department's application to dismiss and in the Union's amended application for declaratory relief. The principal reason given by the Department to dismiss the Union's amended application for declaratory relief, namely, that it allegedly involves answering a hypothetical question, is an issue at the heart of whether the declaratory relief sought would be granted in the first place.

• [19] For this reason, the issues between the Union and the Department would be justly and expeditiously determined by hearing, concurrently, the Department's application to dismiss and the Union's amended application for declaratory relief. I have power, pursuant to r 41(1) of the Rules, to make an order directing that the matters be heard concurrently.

• [20] I will make further directions that provide for the expeditious hearing and determination of the matters.

• [21] The question that required determination is whether the Department's application to dismiss should be heard first and separately to the Union's amended application for declaratory relief.

• [22] For the reasons I have given, the matters should be heard concurrently.

1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), I direct that the application in existing proceedings filed by the State of Queensland (Queensland Health) ('the Respondent') on 1 April 2021, to dismiss or refrain from hearing or further hearing the amended application by the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('the Applicant') for declaratory and consequential relief filed on 18 March 2021 ('the Amended Application'), be heard concurrently with the Amended Application.

1. Pursuant to r 41(1) of the Rules, I direct:

(a) that the Applicant file in the Industrial Registry and serve on the Respondent, its outline of submissions (of no more than 10 pages, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages) and any further affidavits upon which the Applicant intends to rely in support of the Amended Application, by 4.00pm on Friday, 4 June 2021;

(b) that the Respondent file in the Industrial Registry and serve on the Applicant, its outline of submissions (of no more than 10 pages, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages) and any affidavits upon which the Respondent intends to rely in opposition to the Amended Application, by 4.00pm on Friday, 9 July 2021;

(c) that the Applicant file in the Industrial Registry and serve on the Respondent, its outline of submissions in reply (of no more than 5 pages, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages) and any affidavits in reply, by 4.00pm on Friday, 23 July 2021;

(d) that the matter be mentioned at 9.00am on Friday, 30 July 2021; and

(e) that either party has liberty to apply on two (2) days' notice.

[1] [2020] QIRC 086.

[2] Ibid [16]-[21] (Deputy President Merrell, Industrial Commissioner Pidgeon and Industrial Commissioner Dwyer).

[4] (2020) 4 QR 31; [2020] QSC 54.