Chen v Gold Coast Hospital and Health Service [2025] ICQ 17

1. The Commissioner erred as a matter of law and/or committed jurisdictional error in disregarding the prior and ongoing serious pattern of conduct - "something more that unreasonable", vexatious and causing wastage of time and costs to parties and tribunals _ - inter alia_ the conduct of GCHHS and MinterEllison to make repeated false statements and/or knowing misrepresentations to the Commission to prejudice via delay the substantive resolution of matters of Dr Chen's exercise of rights to convert to permanent employment where there is manifest ongoing operational requirement for Dr Chen's role and pattern of continuous employment established since 2014.
2. The Commissioner erred as a matter of law and/or committed jurisdictional error in the Decision to award costs while there are on foot legal processes to determine whether MinterEllison may lawfully remain engaged in these matters:
   1. where on foot legal processes yet to determine whether GCHHS and/or MinterEllison discharged their onus of proof that GCHHS and/or MinterEllison breached confidentiality of Dr Chen's Memorandum of Advice from Mr Charles Massy dated 5 June 2020;
   2. where associated probity issues that Ms Nikki A-Khavari obtained Dr Chen's confidential Memorandum around August 2020 at a time Ms A-Khavari was already engaged by GCHHS, MinterEllison, Mr Grant Brown, and Ms Hannah Bloch; and
   3. where associated probity issues Ms A-Khavari did not make the relevant important voluntary disclosures to Dr Chen about serious perceived conflicts of interest and further probity issues now that MinterEllison have put on the record in Commission processes a formal defence of Ms A- Khavari's prior conduct during 2020.
3. The Commissioner erred in law and/or committed jurisdictional error on the issue of costs sought by GCHHS in:
   1. Lack of consideration for legal principles to consider the probity of conduct as officers of a tribunal and recurrence of lack credibility of GCHHS and MinterEllison in factual matters at Hearing; and
   2. Lack of consideration of the relevant serious factual matters of probity (described in above para 2) implicating that MinterEllison must recuse.
4. Further and/or in the alternate, the exercise of the Commissioner's discretion, pursuant to ss. 536 and 545 of the Industrial Relations Act 2016 miscarried because:
   1. the Commissioner failed to correctly ascertain directly relevant factual matters around "balance of convenience" and the Commission and this Court must now be fully satisfied having been manifestly seriously misled on factual matters of GCHHS operational requirements for Dr Chen's role at the Hearing on 15 March 2023 with implication miscarriage of Justice engendered by officers of the court during those processes; and,
   2. the Commission erred as a matter of law and/or committed jurisdictional error and/or did not undertake prior steps required by law in 2021 in now making costs orders finding that Dr Chen's application had no reasonable prospect of success with ongoing miscarriage of justice current and/or any latter factual findings that Dr Chen's application for reinstatement had or have "no reasonable prospect of success'': and
   3. the factual particulars are that Dr Chen's filed repeated interim reinstatement applications from March to June 2021 , agitated for Commission interim reinstatement orders during the general protections application during June 2021 and it is again respectfully submitted objective facts that steps required by law were not undertaken by the Commission then, delays since 2021 were engendered by actions taken by the Commission despite Dr Chen's having made repeated filings to the Registry on 2 June 2021 and filing further correspondence to the Commission Registry dated 16 June 2021 agitating for reinstatement and restoring staffing at GCHHS back to safe levels."[10]

• [11] On 21 September 2023, Dr Chen filed an affidavit in his appeal. That affidavit was not before Industrial Commissioner Pidgeon on either the hearing of the interim reinstatement application or on Gold Coast Health's application for costs of that application. Gold Coast Health objects to the reception of Dr Chen's affidavit in the appeal.
• [12] Gold Coast Health accepts that Industrial Commissioner Pidgeon erred in exercising the discretion to award costs. However, the appeal is resisted on the bases that:

(a) the error was not material; and

(b) upon a re-exercise of the discretion by this Court, the result would be the same as that ordered by the Industrial Commissioner.

• [13] On 10 October 2023, the appeal against the costs order came before me for mention. Orders were made for the exchange of written submissions on the question of Gold Coast Health's objection to the receipt of the affidavit as further evidence in the appeal. An order was also made that the question would be determined on the written submissions without oral hearing.
• [14] Written submissions were received in due course from both parties.

The two decisions of Industrial Commissioner Pidgeon

• [15] In order to evaluate the further evidence, it is necessary to consider some aspects of the reasons of the Industrial Commissioner in refusing to order interim reinstatement and awarding costs to Gold Coast Health.
• [16] In determining the interim reinstatement application, Industrial Commissioner Pidgeon directed herself to the statutory grant of jurisdiction to order interim reinstatement.[11] The Industrial Commissioner recorded that the two claims were consolidated on 22 June 2021[12] and then identified the test for the granting of interlocutory relief as the one explained in Australian Broadcasting Corporation v O'Neill.[13]
• [17] Having identified the two relevant issues as the establishment of a prima facie case and the assessment of the balance of convenience, the Industrial Commissioner proceeded to consider each of those issues.
• [18] After a detailed analysis of the respective submissions and materials, the Industrial Commissioner was satisfied that Dr Chen had established a prima facie case.[14] The Industrial Commissioner then set about a consideration of the balance of convenience.[15]
• [19] The Industrial Commissioner held that the balance of convenience favoured dismissal of Dr Chen's application. She reasoned as follows:

(a) while accepting Dr Chen's submission that his colleagues might welcome his return to work, the state of Dr Chen's relationship with his previous employer is such that his return to work might cause disruption and, therefore, prejudice to Gold Coast Health;[16]

(b) although Dr Chen submitted that he would be prejudiced in not being able to keep his skills up to date if not working, the Industrial Commissioner accepted other evidence that Dr Chen would not lose his certification; and

(c) Gold Coast Health had since arranged its staffing so that it didn't require Dr Chen's services.

• [20] By way of general discretionary considerations, the Industrial Commissioner also had regard to:

(a) considerations of the preservation of the status quo, which did not favour Dr Chen because of the delay between his dismissal and the application for interim reinstatement. The status quo, the Industrial Commissioner found, is now Dr Chen not working at Gold Coast Health;

(b) delay in the principal proceedings, which had been caused by Dr Chen's conduct of the proceedings where he had made various interlocutory applications and launched appeals; and

(c) the fact that Dr Chen had not shown any urgent need to return to work.

• [21] There was no appeal from the order of Industrial Commissioner Pidgeon determining the application for interim reinstatement against Dr Chen.
• [22] In his written submissions on costs,[17] which were before Industrial Commissioner Pidgeon on the application, Dr Chen;

(a) made allegations about Gold Coast Health's conduct in not rostering Dr Chen;[18]

(b) alleged that Gold Coast Health was advertising for applicants for employment in a role similar to that performed by him;[19]

(c) alleged that Gold Coast Health had appointed new graduates in training for the role Dr Chen had previously performed;[20]

(d) submitted that four colleagues of Dr Chen had expressed views about understaffing at Gold Coast Health;[21] and

(e) alleged that Gold Coast Health executives had acted improperly.[22]

• [23] The relevance of the various assertions made in Dr Chen's new affidavit have to be considered against the following facts:

(a) the new affidavit is sought to be admitted on an appeal from the costs determination;

(b) the costs determination concerns the costs in the dismissal of the interim reinstatement application;

(c) Dr Chen lost the reinstatement application; and

(d) Dr Chen has not challenged, by way of appeal, the dismissal of the interim reinstatement application.

• [24] The application for interim reinstatement was an interlocutory application. Therefore, Dr Chen could bring a further application. However, there has been no challenge to the Industrial Commissioner's judgment on the interim reinstatement application by way of appeal and no further application has been brought. The controversy as to the interim reinstatement of Dr Chen is, at the moment at least, not a live one.
• [25] Dr Chen's affidavit covers various topics:

(a) Professor Howes' opinion expressed in text messages about Dr Chen's interactions with Gold Coast Health.[23] This evidence was available at the time of the interim reinstatement application. It was also available at the time of the hearing of the costs application. If anything, it is relevant to considerations of reinstatement, not the costs of the failed interim reinstatement application;

(b) there are complaints about inadequate disclosure and other actions of Gold Coast Health and its employees.[24] All of this material was available at the time of the hearing of the interim reinstatement application and at the time of the costs application. If anything, it is relevant to questions of interim reinstatement and possibly the determination of the principal proceedings;

(c) under a heading: "GCHHS genuine permanent operational requirements and budgeting", Dr Chen challenges the assertion of Gold Coast Health made on the interim reinstatement application that Dr Chen's services are not required. This seeks to reagitate issues raised in the interim reinstatement application. There is nothing new;

(d) under a heading: "Understaffing consequences around mid 2021", Dr Chen challenges the assertions made by Gold Coast Health as to the adequacy of staffing levels. Again, if anything, this is relevant to the interim reinstatement application and determination of the principal application. Again, there is nothing new;

(e) under a heading: "Undisclosed conflict of interest - Ms Nikki A-Khavari and GCHHS and Mr Grant Brown and Ms Hannah Bloch", Dr Chen records what might be criticism by Professor Howes of Ms A-Khavari and records the fact that Ms A-Khavari has not responded to emails where Dr Chen has sought an explanation of what he sees as her acting in a position of conflict of interest. The relevance of this is dubious at best but Professor Howes' comments were made on 4 August 2021 and the emails to Ms A-Khavari were sent in late 2022 and early 2023, before the hearing of the interim reinstatement application and the costs application; and

(f) under a heading: "Collegial affidavits and hearing attendance", Dr Chen identifies various people who he asserts can give evidence about what he says are relevant events within Gold Coast Health. Some of the evidence may be relevant to the substantive application but is not relevant to the appeal against a costs order made consequent upon the dismissal of an interim reinstatement application where the result of that application has been accepted by Dr Chen, to the extent that he has not challenged it on appeal.

• [26] Section 567 of the Industrial Relations Act 2016 provides:

(1) an appeal to an industrial tribunal, other than a public service appeal to the commission, it by way of a re-hearing on the record.

(2) However, the industrial tribunal may her evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal."

• [27] The common law developed principles as to the admission of further evidence on appeal. Those principles required an appeal court to consider the likely impact of the further evidence, and whether the evidence was reasonably available at first instance.
• [28] Although the statutory test is wider, those common law considerations are relevant in determination under s 567 whether further evidence ought to be admitted.[25]
• [29] Dr Chen is self-represented. However, he must conduct the proceedings appropriately. The evidence Dr Chen wishes to adduce was previously available to him.
• [30] Assessment must also be made as to whether the evidence was likely to alter the result if it had been available at the hearing.[26] As previously observed, the correctness of the Industrial Commissioner's dismissal of the interim reinstatement application has not been challenged. The costs hearing was conducted against the background of the findings in the interim reinstatement application. I can see nothing to suggest that the further material which seeks to reagitate issues considered in the interim reinstatement application would have any impact upon the costs determination.
• [31] The policy considerations behind there being restrictions on the introduction and new evidence on appeal are policy considerations based on the desirability of finality of litigation. Here, Dr Chen wishes to introduce evidence on appeal from the costs order which was not before the Industrial Commissioner, but was in existence and readily available to him at the time of the hearing of the costs application. The material seeks to reagitate issues determined in the interim reinstatement application in circumstances where he has not appealed that decision.
• [32] The material should not be admitted on the appeal and the application is dismissed.
• [33] Costs should be reserved to the hearing of the appeal.

• [34] The following orders are made:
  1. The affidavit of the appellant, Dr Victor Chen, filed on 21 September 2023 is not admitted as evidence in the appeal.
  2. Costs reserved to the hearing of the appeal.

[1] Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226.

[2] Industrial Relations Act 2016, s 280.

[3] Industrial Relations Commission File GP/2020/27.

[4] Industrial Relations Act 2016, s 321.

[5] Industrial Relations Commission File TD/2021/20.

[6] Chen v Gold Coast Hospital and Health Service [2021] QIRC 235.

[7] Industrial Relations Act 2016, s 262, s314, and s 473.

[8] Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128.

[9] Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226.

[10] This extract has been faithfully reproduced notwithstanding the appearance of obvious errors.

[11] Industrial Relations Act 2016, s 262, s 314 and s 473.

[12] Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 at [7].

[13] [2006] HCA 46; (2006) 227 CLR 57; and see Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 at [9]- [11].

[14] Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 at [56].

[15] Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 commencing at [58].

[16] Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128 at [60]- [61].

[17] Filed on 13 June 2023; the matters listed are not exhaustive.

[18] Dr Chen's written submissions, filed 13 June 2023, para [5].

[19] Dr Chen's written submissions, filed 13 June 2023, para [9].

[20] Dr Chen's written submissions, filed 13 June 2023, para [12].

[21] Dr Chen's written submissions, filed 13 June 2023, para [15].

[22] Dr Chen's written submissions, filed 13 June 2023, para [17].

[23] Affidavit of Dr Chen, filed 21 September 2023, paras [3], [4], [7], [8], [20], [21], [22] and [51].

[24] Affidavit of Dr Chen, filed 21 September 2023, paras [5], [6], [9], [10], [11], [12], [13], [14], [15], [16], [17] and [18].

[25] Regan v Workcover Queensland (2003) 174 QGIG 1009 at 1010; and Smith v Mackay Business Brokers Pty Ltd [2004] QIRC 105; (2004) 176 QGIG 317 at 318.

[26] CCH Australia Ltd v Bowen (1998) 79 IR 206 at 211; and Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor [2003] NSWIRComm 404.