Hartley v State of Queensland

Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 25

Bale v Workers' Compensation Regulator [2024] QIRC 235

Elesanar Constructions Pty Ltd v Thiess Contractors Pty Ltd [2001] QDC 293

• [1] About a month after receiving a show cause notice which commenced a formal disciplinary process, Mr Hartley filed an application challenging the process. His then employer, the Office of Industrial Relations, who is the Respondent, opposed the application. That original application, numbered PID/2023/1, was placed into abeyance. It subsequently lapsed pursuant to the rules that govern all cases that are left unactioned for more than a year. [1]

• [2] Mr Hartley now applies for permission to allow that lapsed matter to proceed. The issue I must decide is therefore a single question of whether I should make that order. For reasons that follow, I have decided that this case is not one where the discretion to make such an order should be exercised. There are several considerations underpinning this conclusion, which I set out below.

What steps did Mr Hartley take in the proceeding?

• [3] Mr Hartley's original application was filed on 29 November 2023. In it he alleged that the disciplinary process was unlawful because it constituted reprisal for having made a "public interest disclosure".[2] For ease of reference, I shall refer to that original application as the "PID Proceedings".

• [4] The PID Proceedings came on for conference before his Honour, Vice President O'Connor, on 7 December 2023. What was said during that conference was transcribed and is relevant to whether I should allow the PID Proceedings to continue. I will therefore come back to that shortly.

• [5] However, there is consensus that Mr Hartley took no formal steps in the PID Proceedings since the conference on 7 December 2023 before his Honour. So, on 9 May 2025, when Mr Hartley sought by this application to re-start the PID Proceedings, some seventeen months had elapsed since the last step had been taken. By then, the matter had been lapsed for about five months and it had been about fourteen months since his dismissal.

• [6] Mr Hartley initially argued that there were two key explanations for the delay. First, that he was distracted by "overlapping legal obligations". Namely, some Family Court of Australia proceedings as well as another case in this Commission where Mr Hartley alleged his dismissal (the outcome of the abovementioned disciplinary process) was unfair. Second, what Mr Hartley described as a "significant decline in my mental health", which he says impacted on his ability to respond.

• [7] Mr Hartley referred to a medical certificate but did not produce one, or any evidence of mental health issues. As the Respondent points out, there is therefore no evidence before me that proves a mental health issue impacted Mr Hartley as claimed, much less one that deprived Mr Hartley of capacity to take action in the PID Proceedings during the relevant time. I therefore do not accept the assertion that there was a mental health condition that prevented Mr Hartley from taking any steps in the PID Proceedings during the relevant time.

• [8] The distraction caused by other proceedings is not challenged. However, the Respondent argues that this is at odds with the claim of incapacity mentioned above. In particular, Mr Hartley has demonstrated that he was able to devote significant time and attention to both the Family Court of Australia matter and his unfair dismissal claim. I accept that to be a fair point. However, for reasons that I set out below, I do not accept that being distracted by other proceedings amounts to a satisfactory explanation for the failure to take steps in the PID Proceedings.

• [9] In Barnes v Q-Comp & Hatch Pty Ltd, [3] the appellant sought permission to progress a lapsed matter citing ill health and a distraction associated with running another piece of litigation at the same time. Vice President O'Connor accepted submissions from the respondent that being distracted and financially challenged by having to deal with another piece of litigation did not automatically mean the appellant had no capacity to take the relevant steps in that matter.[4] The principle being that even though such circumstances are demanding and distracting, that does not itself amount to a satisfactory explanation for failing to take a step in a proceeding. I respectfully agree with and adopt that approach to deciding whether to exercise the discretion in Mr Hartley's case.

• [10] In his reply submissions, Mr Hartley raised a third reason for failing to take a step in the PID Proceedings. He claims he did so in '' ... reliance on the express recommendation of the Vice President during a conference on 7 December 2023 to await the outcome of the disciplinary process before proceeding". Mr Hartley argued that point in rejection of the Respondent's submissions that the delay was a result of his election to pursue other things and says that he "acted on judicial guidance and within the constraints of my physical and mental capacity".

• [11] I have rejected already the argument about mental health issues. However, the argument that there was judicial guidance or a recommendation needs to be considered.

• [12] I have reviewed the transcript of the proceeding on 7 December 2023 before his Honour, the Vice President. After taking some time to hear from both of the parties, and engage in discussion with them, it became clear that the disciplinary process on foot allowed Mr Hartley the opportunity to respond to the allegations and that a possible outcome could have been a return to service. In those circumstances, his Honour pointed out the obvious merit in allowing that process to take its course. In particular, if there was an outcome that was adverse to Mr Hartley then he had appeal rights which allowed an external review.[5] In discussion with his Honour, Mr Hartley agreed that it was possible that the process might produce an outcome where no adverse findings were made against him.[6] His Honour expressed the view that in the circumstances, it was best to wait and see what the outcome of that formal process was and then "reconvene if need be".[7]

• [13] I accept that part of Mr Hartley's submission where he says he received the benefit of some guidance provided by his Honour's insights into the situation as it was on 7 December 2023. It is clear to me that Mr Hartley recognised the sense in what his Honour was proposing and agreed to take that course - to adjourn pending the outcome of the disciplinary process on foot at the time.

• [14] Mr Hartley does not suggest that he was advised to wait any longer than for the outcome of the disciplinary process, however. That process lasted a little over three months and resulted in a dismissal on 14 March 2024. At that point in time, there was still another nine months or so in which Mr Hartley could have taken a step in bringing back on the PID Proceedings before time ran out. Rather than reconvene that matter as his Honour suggested, Mr Hartley chose to commence fresh proceedings in the form of filing and pursuing his unfair dismissal claim. The PID Proceedings sat untouched until several months after they had lapsed.

• [15] I do not therefore accept Mr Hartley's argument on this point. What was suggested was to wait and see what the outcome of the disciplinary proceedings was and then bring the PID Proceedings back on if the outcome was not acceptable. If that was "advice" or "guidance", then Mr Hartley only acted on half of it. The part he appears to have ignored or forgotten would have prevented the PID Proceedings from lapsing if he had followed it. That was the part suggesting that he bring the matter back on if the outcome of the disciplinary proceedings was not to his liking.

• [16] I find that Mr Hartley decided to pursue other avenues of redress rather than bring the PID Proceedings back on as his Honour had suggested. This does not constitute an acceptable reason for such a significant delay in taking a step in the PID Proceedings in my opinion.

• [17] Mr Hartley's submissions do not specifically address this point, although he has clearly indicated a preparedness to follow whatever process the Commission would set out for taking the matter forward. I accept the Respondent's submissions that this is not fatal to the application.[8] However, I can place no weight on this consideration one way or the other.

• [18] The Respondent points to prejudice it might suffer if the PID Proceedings were allowed to go ahead in the form of having to run two different pieces of litigation where considerable overlap of factual allegations will likely occur. I would add to that the prejudice in not being able to rely on what Parliament has fixed as a time after which parties may assume the matter is at an end, subject of course to special applications such as these.

• [19] Mr Hartley will suffer obvious prejudice if his matter is not allowed to proceed. It will mean that no assessment of the merit of his claims will take place. I also accept his submission that even though some of the facts in his unfair dismissal claim might be touched on in the PID Proceedings, they turn on different legal tests. They are not the same case, and I see no abuse of process in Mr Hartley seeking to run both.

• [20] Mr Hartley also argues in support of his application what he refers to as a lack of effective recourse provided by "oversight agencies". In particular, Mr Hartley points to proceedings he commenced in the Queensland Human Rights Commission, which have concluded without success by finding the matter "unresolved". Mr Hartley referred also to Public Sector Commission and the Crime and Corruption Commission complaints. The latter was referred to the Department of State Development and Infrastructure ('Department'). Both the Department and the Public Sector Commission declined to act. Mr Hartley submits that the Department declined on the basis that a previous investigation had resolved the issues and no further investigation was warranted. The Public Sector Commission is said to have declined to act on what appears to be jurisdictional grounds. The submission is that in those circumstances justice requires the PID Proceedings being allowed to proceed.

• [21] I can only surmise that some of the issues Mr Hartley seeks to ventilate in the PID Proceedings are those he raised in the Human Rights Commission and also in his complaints to the Public Sector Commission and Crime and Corruption Commission. Mr Hartley has not developed the argument, though. In any case, the only way it makes sense to submit that the justice of the case is met by allowing the PID Proceedings to continue in these circumstances is on the basis that the issues have not justly been dealt within those other forums.

• [22] What this indicates to me is that Mr Hartley has engaged in several formal mechanisms of redress, but he has not obtained the desired result. That does not persuade me however to find that the justice of the case is met by allowing the PID Proceedings to continue. That is for two reasons. First, I am not satisfied on the material provided that those outcomes amount to an injustice. I have no evidence before me on this point and therefore I do not find the argument persuasive.

• [23] Second, I am not satisfied why, even if there were some potential shortcomings in any of those three processes, that would weigh in favour of allowing a matter to proceed where so much time without action has passed that the matter has lapsed. That is especially having regard to the fact that the outcome from the Queensland Human Rights Commission was known to Mr Hartley on 27 November 2023. The Crime and Corruption Commission made its position known to Mr Hartley on 21 December 2023 and on 9 February 2024. The Department issued its determination to Mr Hartley on 9 October 2024. So all of those outcomes were known to Mr Hartley well before the PID Proceedings lapsed. I find there is no satisfactory explanation for Mr Hartley's delay in seeking to address what he now argues are injustices arising from these processes during the time where his right to do so still existed.

• [24] The answer to this question is "none" because it is too early to be able to assess the merit of the PID Proceedings one way or the other. This is not a case where prospects of success are so obviously high, or low, that one could safely form a view as to how much weight can be placed on prospects. For that reason, this must be a neutral consideration in this case. I therefore accept the Respondent's submissions on this point.[9]

Why Mr Hartley's case will not be allowed to proceed

• [25] Mr Hartley will suffer prejudice if his PID Proceedings are not heard, although I do not accept that amounts to an injustice as Mr Hartley submits. I accept that Mr Hartley was the beneficiary of advice from the Commission but he chose to act on only half of it. Mr Hartley agreed to adjourn the PID Proceedings as suggested, pending the outcome of the disciplinary process that was on foot at the time. However, he did not bring the matter back on as suggested when the outcome turned out to be a dismissal. Instead, Mr Hartley chose, I find, to take action in other ways. There may have been some health concerns but I do not have any evidence of them and therefore do not accept that Mr Hartley was medically incapacitated at any point during the relevant time. I do not therefore accept that there is an acceptable explanation for such a lengthy delay in Mr Hartley taking any steps in the matter. It is for those reasons that I have decided that this is not a case where the discretion to allow the matter to continue should be exercised. I order that the application be dismissed accordingly.

1. The application to proceed with matter number PID/2023/1 is dismissed.

[1] Industrial Relations (Tribunals) Rules 2011 (Qld), r 230; Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 25.

[2] Pursuant to the Public Interest Disclosure Act 2010 (Qld).

[3] [2017] QIRC 25.

[4] Ibid, [38]-[39] citing Voyka v Jacko [2006] QSC 099.

[5] Transcript of Proceedings, Hartley v State of Queensland (Office of Industrial Relations) (Queensland Industrial Relations Commission, PID/2023/1, O'Connor VP, 7 December 2023) T 1-17, ll 1-11.

[8] Citing Bale v Workers' Compensation Regulator [2024] QIRC 235, [72].

[9] Citing Elesanar Constructions Pty Ltd v Thiess Contractors Pty Ltd [2001] QDC 293, [5].