Fellows v State of Queensland

Anti-Discrimination Act 1991, s 144, s 175 and s 178

Human Rights Act 2019, s 25

Industrial Relations Act 2016, s 456, s 463, s 473 and s 566

Uniform Civil Procedure Rules 1999, r 16 and r 761

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Fellows v State of Queensland (Department of Education) and Ors [2024] QIRC 55

Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120

Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2025] QIRC 107

I.C. Formwork Services Pty Limited v Moir (No 2), [2020] ACTCA 4; [2020] ACTCA 44; (2020) 15 ACTLR 207

Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110

Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 068

Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225

Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 453

State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061

Telstra Corporation Ltd v Queensland [2013] FCA 1296; (2013) 217 FCR 181

• [1] These reasons assume familiarity with the reasons in Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) ('Fellows No. 1')[1] and in Fellows v State of Queensland (Department of State Development, Infrastructure and Planning, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) ('Fellows No. 2').[2]

• [2] Unless stated in these reasons, the definitions I used in Fellows No. 1 and in Fellows No. 2 are used in these reasons.

• [3] By letter dated 28 February 2025, Mr Simon Nicholson, Chief Executive Officer and Work Health and Safety Prosecutor, wrote to the Complainant and, on the basis of the reasons set out in that letter, advised the Complainant that he was giving serious consideration to retiring the Complainant from the public service on the grounds of ill health ('Mr Nicholson's proposed 2025 decision'). Mr Nicholson afforded the Complainant 14 days to provide him with a written submission as to whether she should be ill health retired from the public service.

• [4] By her General Application filed on 11 March 2025, the Complainant seeks a stay of the proposed decision to terminate her employment, until there is a determination of her complaint by the Commission, by way of the Commission making a declaration pursuant to s 463(1) of the IR Act.[3]

• [5] The Respondent opposes the relief sought by the Complainant. The Respondent contends that:

• the Complainant's application is an abuse of process because, having regard to the earlier decision of Industrial Commissioner McLennan in Fellows v State of Queensland (Department of Education) and Ors,[4] the Complainant is attempting to secure relief that has already been denied;

• it is beyond the Commission's power to grant the orders sought by the Complainant; or

• if the Commission has power to grant the relief sought by the Complainant, it should not do so on various discretionary grounds.

• [6] Although the Complainant's application was listed for hearing, the parties agreed that the application could be determined on the papers.

• [7] The fundamental issue for my determination, having regard to the proper characterisation of the relief sought by the Complainant, is whether the Commission has the power, pursuant to s 463 of the IR Act, to grant that relief.

• [8] For the reasons that follow, I find that it is beyond the power of the Commission to grant the declaratory relief sought by the Complainant.

• [9] It is helpful, in understanding my reasons, to state and restate the relevant background facts.

• is employed by the Respondent as a Senior Prosecutor in the OWHSP; and

• has the following impairments in respect of which her complaint is made, namely:

• - an adjustment disorder/reactive anxiety disorder alleged to have been sustained on 1 October 2019.

• [11] On 6 December 2021, the Complainant made a complaint to the QHRC alleging that, in contravention of the AD Act, she was the subject of unlawful discrimination by the Respondent on the basis of her impairments. The Complainant also alleged that, contrary to the HR Act, certain of her human rights had been breached.

• [12] By letter dated 6 May 2022, Mr Gore, pursuant to s 175 of the Public Service Act 2008, required that the Complainant be examined by Dr Murphy on 19 July 2022. By report dated 27 July 2022, Dr Murphy responded to the questions asked of him by Mr Gore ('Dr Murphy's report').

• [13] On 27 March 2023, the QHRC referred the complaint to this Commission. The matter number is AD/2023/25.

• [14] By letter dated 4 April 2023, Mr Nicholson wrote to the Complainant and, on the basis of the reasons set out in that letter, advised the Complainant that he was giving serious consideration to retiring the Complainant from the public service on the grounds of ill health ('Mr Nicholson's proposed 2023 decision'). The Complainant was given an opportunity to respond to Mr Nicholson before he made any final decision. By letter dated 25 April 2023, the Complainant responded to Mr Nicholson. The Complainant's strenuously opposed Mr Nicholson's proposed 2023 decision to retire her on grounds of ill health for a range of reasons. In particular, the Complainant provided a three page annexure to her letter setting out specific issues she had with Dr Murphy's report and why that report should not be relied upon by Mr Nicholson to make the decision to retire her on grounds of ill health.

• [15] On 2 May 2023, the Complainant applied to the Commission, pursuant to s 144 of the AD Act, for an order protecting her interests, namely, an order preventing the Respondent from retiring her on grounds of ill health.

• [16] Following certain Directions Orders being made by Industrial Commissioner McLennan, on 22 September 2023 the Complainant filed and served her contentions in respect of her complaint.

• [17] By decision dated 1 March 2024 in Fellows v State of Queensland (Department of Education) and Ors,[5] Industrial Commissioner McLennan dismissed the Complainant's application made pursuant to s 144 of the AD Act.

• [18] Conciliation did not result in the resolution of the complaint and it was referred to me for hearing and determination.

• [19] By the decision in Fellows No. 1, I decided that, pursuant to s 175(2) of the AD Act, I would not deal with certain out of time complaints contained in the Complainant's contentions. By the decision in Fellows No. 2, I decided that, pursuant to s 175(2) of the AD Act, I would not allow the Complainant to amend her complaint as she sought.

• [20] As I presently understand the Complainant's contentions, the allegations in her complaint, as it now stands given the decisions in Fellows No. 1 and Fellows No. 2, are:

• that the Respondent directly discriminated against her on the basis of her impairments, in contravention of s 101 of the AD Act, by the decision of the Workers' Compensation Regulator not to brief out the Complainant's application to the Regulator for the review of a WorkCover Queensland decision not to waive the time limit for her to apply for workers' compensation;
• that the Respondent directly discriminated against her in that the letter from Mr Gore dated 6 May 2022, requiring the Complainant to submit to an independent medical examination by Dr Murphy, contravened s 15(l)(f) of the AD Act because Mr Gore's questions to Dr Murphy were framed with his knowledge of one of her impairments; and
• that the Respondent unreasonably limited her human right to privacy within the meaning of s 25 of the HR Act because an employee of the Respondent:
  • - forwarded to the Complainant's doctor a copy of the report of the independent medical examination; and
  • - contacted the office of her doctor to clarify and amend an error in the report.

• [21] The Complainant's complaint will be heard on 23, 24 and 25 July 2025.

Having regard to the nature of the relief sought by the Complainant, does the Commission have the power, pursuant to s 463 of the IR Act, to grant that relief?

• [22] The Complainant relevantly submitted that she was seeking declarations, pursuant to s 463 of the IR Act, that:

• the '...decision of Mr Nicholson to retire the Complainant from the public service on the grounds of ill health be stayed until a determination on the substantive matter (AD/2023/25) has occurred'; and

• the '...Second and Third Respondents are not to take any administrative action to terminate the Complainants [sic] employment until a determination on the substantive matter (AD/2023/25) has occurred.'[6]

• [23] By the second declaration sought by the Complainant, she is referring to the OIR and the OWHSP.[7]

• [24] By way of summary, the Complainant submits that:
  • the Commission may, upon application by a specified entity, issue a declaration concerning an industrial matter under s 463 of the IR Act;

• any specified individual who may be directly impacted by the declaration is eligible to submit an application pursuant to s 464(a) of the IR Act;

• in Local Government Association of Queensland v Queensland Services, Industrial Union of Employees,[8] the Full Bench of the Commission considered the phrase '... directly affected' in s 464(a) of the IR Act, and determined that the declaration should have an immediate causal effect, rather than an indirect or remote causal effect, on the applicant; and

• the term 'industrial matter' is relevantly defined by s 9(1)(b) of the IR Act to being a matter that affects or relates to the '...privileges, rights or functions of... employees.'[9]

• [25] The Complainant then referred to the decision in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2)[10], wherein I stated (citations omitted):

• [26] As I stated in the 12 May decision, 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.

• [27] In the 12 May decision I also referred to the summary of the applicable principles in respect of the discretionary power to grant declaratory relief given by Applegarth J in The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors. Those principles include that:

(a) the discretionary power to grant declaratory relief is wide;

(b) a judicial determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy and involves the application of the relevant law to facts as found in the proceeding;

(c) declaratory relief must not be directed to answering abstract or hypothetical questions; and

(d) answers given to a question which leaves the facts unstated or does not identify them with any precision will not finally resolve a dispute or quell a controversy as the answers given may be of no use at all to the parties and may even mislead them as to their rights.

• [28] The onus is on an applicant to establish the ambit of the rights to be declared and prove all the facts necessary to enable the declaration to be made.

(a) a party who seeks relief has the burden of satisfying the court of facts which (in the absence of proof of other facts) would justify the grant of that relief;

(b) what those facts are depends principally upon:

(ii) the operation of any relevant presumptions; and

(c) in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought.

• the proposed termination of her employment is based on Dr Murphy's report, the process of obtaining Dr Murphy's report, and its contents, are allegedly in contravention of the AD Act and the HR Act, and the material relied upon by Mr Nicholson, for his proposed 2025 decision, forms part of the complaint against the Respondent currently before the Commission;[11] and
• to allow the Respondent to proceed with such an administrative decision may result in a further contravention of the AD Act and the HR Act '... should the allegations surrounding the IME report be found to be a contravention of the Act.'[12]

• [27] The Complainant then submits (footnote omitted):

• [29] The Complainant claims that any decision to terminate her employment based on an outdated medical report, in disregard of the Complainants [sic] previous objections to that report, during the substantive proceedings constitutes victimisation by the Second and Third Respondent. Additionally, the Complainant views this as part of a pattern of behaviour from the Respondents that has continued since her injury at the workplace of the Third Respondent in 2019.

• [28] By way of summary, the Respondent submits that:

• on any reading of the Complainant's application, it appears to be an application under s 473 of the IR Act for an injunction because the complainant seeks to restrain or prevent a contravention in similar terms to the wording and intent of s 473(1)(b) of the IR Act;[13]

• the Complainant has not articulated how or why it would be within the Commission's jurisdiction to use its power under s 463 to grant declaratory relief in industrial matters to provide her with the type of injunctive relief she seeks;[14]

• the purpose and function of declaratory power under s 463 is not to grant the type of injunctive relief sought by the Complainant, rather, it is to enable the Commission to make declarations of the existence of legally enforceable rights or liabilities;[15]

• the matters in which s 463 of the IR Act, and its predecessor, have been judicially considered involve circumstances where the applicant is seeking a declaration about the proper construction of a legislative provision or clause of an industrial instrument, or a declaration that a dismissal was invalid;[16] and

• insofar as the Respondent can determine, s 463 of the IR Act has not been relied on for the granting of the type of injunctive relief sought by the Complainant.[17]

• [29] Sections 463 and 464 of the IR Act provide:

1. Power to make declarations about industrial matters

(1) The commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter.

(2) The commission may make the declaration whether or not consequential relief is or could be claimed.

(3) Subject to chapter 11, part 6, a declaration made by the commission under this section is binding in a proceeding under this Act.

The following may make an application mentioned in section 463-

(a) a person who may be directly affected by the declaration;

(b) an inspector;

(c) an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person's written consent;

(d) an organisation of employees or employers who may be directly affected by the declaration.

Is the relief sought by the Complainant amenable to declaratory relief?

• [30] To answer this question, it is necessary:

• first, to properly characterise the relief sought by the Complainant; and

• secondly, to determine whether the relief sought by the Complainant, as properly characterised, is amenable to the Commission making a declaration about an industrial matter.

What is the proper characterisation of the relief sought by the Complainant?

• [31] The relief sought by the Complainant, as contained in her application, is framed in the following manner:

1. The Complainant seeks a stay of the Respondents [sic] administrative decision to terminate the Complainants [sic] employment.
2. This decision is due to be made by the 3rd Respondent on Friday 14th March 2025.
3. The Complainant respectfully request [sic] a stay of decision be granted until a determination on the substantive matter (AD/2023/25) has occurred.
4. The Complainant is of the view that the material that this decision will be based upon is in contravention of the Anti-Discrimination Act 1991 and forms part of the complaint against the Respondents currently before Deputy President Merrell.
5. Should this decision be permitted to proceed based on this material further contraventions of the Act may occur.

• [32] In her submissions, the Complainant frames the relief she seeks by reference to her seeking declarations:

• that Mr Nicholson's proposed 2025 decision, to retire her on grounds of ill health, be stayed until her complaint of unlawful discrimination, and of unreasonable limitations on her human right to privacy, is heard and determined; and

• that the OIR and the OWHSP are '...not to take any administrative action to terminate the Complainants [sic] employment until a determination on the substantive matter (AD/2023/25) has occurred.'[18]

• [33] In general terms, the term 'stay' describes an order of a court or tribunal, where power exists for the order to be made, to temporarily or permanently halt a proceeding before it.[19] In the alternative, again in general terms, the term 'stay' can describe an order of an originating court or of an appellate court, where power exists for the order to be made, to temporarily halt the operation of an order or judgment pending an appeal.[20]

• [34] The term 'injunction' has come to be used to mean any order by which a court commands a person to do, or refrain from doing, some particular act to prevent an equitable or legal wrong.[21] When used in a statute, 'injunction' is a wide term which '...embraces any form of curial order which requires a person to refrain from doing or to do some act which infringes or assists in restoring another person's right, interest or property.'[22] An injunction may be granted by a court to temporarily halt the operation of an order or judgment it has made pending an appeal of the order;[23] and a similar order may be made by the relevant appellate court.[24]

• [35] There is no present proceeding before the Commission that the Complainant wants to halt, either temporarily or permanently. Further, there is no order that is subject to an appeal made by the Complainant to the Commission, or to the Industrial Court of Queensland, the operation of which she wants the Commission to temporarily halt.

• [36] When regard is had to the relief sought by the Complainant, as described in her application and in her submissions, the proper characterisation of that relief is that she is, in substance, seeking relief which is in the nature of a prohibitory interlocutory injunction.[25]

• [37] That is, until her substantive complaint is heard and determined by the Commission, the Complainant is seeking:

• an order commanding Mr Nicholson not to make his proposed 2025 decision; and

• an order commanding the Respondent not to take any administrative action to terminate her employment.

• [38] For these reasons, I generally accept the Respondent's submission[26] that the Complainant is seeking to enliven the Commission's discretion to grant declaratory relief as a vehicle for relief that is injunctive in nature.

Having regard to the proper characterisation of the relief sought by the Complainant, is that relief amenable to the Commission making a declaration about an industrial matter?

• [39] While there are a number of potential reasons why the Commission may not grant the relief sought by the Complainant, including those identified by the Respondent, having regard to the proper characterisation of the relief sought by the Complainant, there is one fundamental reason the declarations sought cannot be made. There are two facets to this reason.

• [40] First, there is no reason, in principle, why the Commission should approach the exercise of its statutory 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.[27]

• [41] Secondly, in Australia, there is no such thing as an interlocutory declaration. The relevant principles were conveniently summarised by the Australian Capital Territory Court of Appeal in I.C. Formwork Services Pty Limited v Moir (No 2),[28] where Mossop J[29] relevantly stated:

1. If, as a matter of substance, what the respondent was seeking was a declaration, then it is axiomatic that there is no such thing as an interlocutory declaration. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [128] Gummow and Hayne JJ said: ""Interlocutory declaration" is a form of order not known to the law yet that, in effect, is the nature of the order that was made, expressed, as it was, in declaratory terms". One of the authorities cited by their Honours for that proposition was Magman International Pty Ltd v Westpac Banking Corporation [1991] FCA 41; (1991) 32 FCR 1, in which a five member bench of the Full Court of the Federal Court allowed an appeal against declarations made by a judge at first instance on a preliminary question. The declarations were to the effect that the applicant's claims were statute barred. Stressing the necessary finality of a declaration, Beaumont J, with whom other members of the court agreed, cited as the applicable principle the statement of Upjohn LJ in International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784 at 789:

[A]n order declaring the rights of the parties must in its nature be a final order after a hearing when the court is in a position to declare what the rights of the parties are, and such an order must necessarily then be res judicata and bind the parties forever, subject only, of course, to a right of appeal.

1. A useful explanation of the position is given by Finkelstein J in Warramunda Village Inc

An order of a court is either final or interlocutory: Standard Discount Co v Otard de la Grange [1877] UKLawRpCP 58; (1877) 3 CPD 67, 69 per Bramwell LJ. Thus if an order is not interlocutory it must be final and, conversely, if it is final it cannot be interlocutory. According to existing law the only declaration that may be granted is a final and conclusive declaration: Inland Revenue Commissioners v Rossminster Limited [1979] UKHL 5; [1980] AC 952, 1014 per Lord Diplock, 1027 per Lord Scarman; Clarke v Chadburn [1985] 1 WLR 78, 81 per Megarry VC. The reason for this is that a declaration declares the rights of parties and it would be illogical for a court to declare that a person has certain rights on one day and different rights on the next. Put another way, an interlocutory declaration is an inherently contradictory notion: International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784. Accordingly, a declaration must produce a state of finality in relation to a particular issue, whether or not there are other issues in the case that still require resolution by a final order.

See also Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [143]; Telstra Corporation Limited v State of Queensland [2013] FCA 1296; 217 FCR 181 at [31]- [39]; Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896; 252 FCR 150 (Dillon) at [23]-[33].

1. The necessity that declarations be final has not been seen as an insuperable barrier to the separate determination of questions in proceedings. Where a hearing is split so as to deal separately with a discrete issue, then it is open to resolve that issue on a final basis by making a declaration: Dillon at [29]. By doing so, that aspect of the proceedings is finally determined and the controversy between the parties quelled to that extent.

• [42] The Complainant's application cannot succeed because the relief she is seeking, by way of the making of declarations, is interlocutory; namely, the relief sought does not finally determine the rights of the parties.[30]

• [43] For this reason, it is unnecessary to consider the Respondent's other arguments.

• [44] For the reasons I have given, the Complainant's application must be dismissed.

The Complainant's General Application, filed on 11 March 2025, is dismissed.

[1] [2024] QIRC 120.

[2] [2025] QIRC 107.

[3] The General Application filed by the Complainant on 11 March 2025 ('the Complainant's General Application'), section 4, paras. 1 and 3.

[4] [2024] QIRC 55.

[5] [2024] QIRC 55.

[6] The Complainant's submissions filed on 28 March 2025 ('the Complainant's submissions'), para.1.

[7] In my view, there is only one respondent, namely, the State of Queensland.

[8] [2020] QIRC 068.

[9] The Complainant's submissions, paras. 14-17. At paragraph 18 of her submissions, the Complainant also referred to Schedule 1 to the IR Act ('Industrial Matters') which relevantly provided:

1. the right to dismiss, or to refuse to employ, reinstate or re-employ a particular person, or class of person, in a particular calling

1. what is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed-

(a) at or before the making of a relevant application to the court or commission; or

(b) at the making or enforcement of a decision of the court or commission.

[10] [2021] QIRC 278.

[11] The Complainant's submissions, para. 23.

[12] The Complainant's submissions, para. 28.

[13] The Respondent's submissions filed on 11 April 2025 ('the Respondent's submissions'), para. 17.

[14] The Respondent's submissions, para. 30.

[15] The Respondent's submissions, para. 39.

[16] The Respondent's submissions, para. 40.

[17] The Respondent's submissions, para. 41.

[18] The Complainant's submissions, paras. 1(b) and 30(b).

[19] See e.g. Uniform Civil Procedure Rules 1999, r 16(g) and Industrial Relations Act 2016, s 456(1).

[20] See e.g. Uniform Civil Procedure Rules 1999, r 761(2) and Industrial Relations Act 2016, s 566(1).

[21] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, [60] (Gaudron J).

[22] Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559, 606 (McHugh J).

[23] Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 453, 459 (Mason CJ, Brennan and Gaurdon JJ).

[24] Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, 117 (Kirby P), 118 (Mahoney JA) and 123 (Priestley JA).

[25] As the Respondent submits at paragraph 18 of its submissions, no such relief could have been sought by the Complainant under s 463(1)(b) of the IR Act, because the Commission only has discretion to grant an injunction to restrain or prevent a contravention, or a continuance of a contravention, of an industrial instrument, a permit or the IR Act.

[26] The Respondent's submissions, para. 21.

[27] State of Queensland (Department of Health) v Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees [2023] QIRC 061, [276] (Deputy President Merrell, Industrial Commissioner Pidgeon and Industrial Commissioner Dwyer). See also Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [41] (Bond J).

[28] [2020] ACTCA 4; [2020] ACTCA 44; (2020) 15 ACTLR 207.

[29] Loukas-Karlsson J at [85] and Collier J at [86] agreeing. See also Telstra Corporation Ltd v Queensland [2013] FCA 1296; (2013) 217 FCR 181, [30]-[34] (Rangiah J).

[30] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, [25] (McHugh, Kirby and Callinan JJ).