Peroni v State of Queensland

Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395

Grant v State of Queensland (Queensland Health) [2020] QIRC 228

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lu v State of Queensland (Queensland Health) [2024] QIRC 31

McColl v Toowoomba Regional Council [2025] QIRC 17

Navaratnam v State of Queensland (Department of Employment, Small Business and Training) [2021] QIRC 411

Neophytos Foundadjis v Collin Bailey [2007] ICQ 10

O'Keefe v State of Queensland (Queensland Police Service) [2022] QIRC 364

Stoyel v State of Queensland (Department of Environment and Science) [2023] QIRC 42

Williams v State of Queensland (Queensland Corrective Services) [2024] QIRC 6

Wyer v State of Queensland (Department of Education) [2022] QIRC 408

[1] Ms Peroni seeks to appeal a promotion decision arising from her unsuccessful application for promotion into a Senior Environmental Health Officer (Level 4) job with her current employer, Queensland Health ('the Respondent'). Ms Peroni is currently employed as an Environmental Health Officer (Level 3) at Queensland Health's Metro South Public Health Unit.

[2] Ms Peroni's application to appeal was filed on 28 May 2025, which raises a jurisdictional issue because the 'appeal period' for filing appeals of this nature is 21 days from the date upon which the promotion decision was publicly notified under the Public Sector Act 2022 (Qld) ('PS Act').[1] The decision about who was appointed to the Level 4 position was published nearly a year earlier in the Queensland Health Services Bulletin on 31 May 2024.

[3] Ms Peroni's submissions are essentially that she was not aware of the abovementioned publication until sometime later. Her application needed to be filed by midnight on 21 June 2024 for it to be within time and thus within jurisdiction for the Commission to consider it. Ms Peroni's appeal was filed 341 days outside the limitation period of 21 days (not counting the day of publication).

[4] Extra time can be allowed by the Commission but there is a legal test to be applied when deciding whether to do so. The parties have addressed this in their submissions and this decision deals with this threshold issue.

What is the test for deciding if extra time should be allowed?

[5] I accept that the Respondent has correctly identified the basic test, or the matters to be considered when deciding whether to grant an application for extra time. That is the consideration of the length of delay, the explanation for the delay, the prejudice to the appellant should time not be extended, prejudice to the respondent if time were extended, conduct of the respondent and the appellant's prospects of success. However, the test has been refined since then and can be stated as follows:[2]

(a) special circumstances need not be shown, but an application for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(b) action taken by the applicant, other than by making an application to appeal, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;

(c) any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;

(d) the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and

(e) considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

[6] As noted above, the delay (the period after which the appeal limitation period expired) was 341 days.

[7] I am mindful that this is a public service appeal. It will likely be determined on the papers and involves a review of the relevant decision as to whether it was fair and reasonable. That is as opposed to a contest of fact where a party's case may be harder to prove if witness recollections have faded over time.

[8] Even so, this is still a very substantial period of delay in my opinion. It goes well beyond what the Parliament considered the appropriate period of time within which to file proceedings of this nature and beyond which parties should generally be able to consider the matter as unactionable. As McHugh J observed in Brisbane South Regional Authority v Taylor ('Taylor'),[3] the limitation period is a product of the 'legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.'

[9] Special circumstances need not be shown, but Ms Peroni will need to satisfy the Commission that there is an acceptable explanation for the delay and that it is fair and equitable in the circumstances of such a lengthy delay to extend time.

[10] Ms Peroni's explanation for the delay seems to be twofold, or alternatives. In her appeal notice, Ms Peroni says that she received misinformation from her union representative. The submission is that Ms Peroni's union told her that it would monitor the Queensland Government Gazette for official appointment notices. Because the announcement was published in a different publication, Ms Peroni says that the union failed to advise her of the fact that an announcement of the appointment had been made. It was the publication of that announcement that started the clock running for the 21-day limitation period for filing an appeal. Ms Peroni submits that it was not until 22 August 2024 that she discovered the appointment had been published in the Queensland Health Services Bulletin, which she had not been checking.

[11] In her submissions Ms Peroni does not press the abovementioned representative error point. Instead, or as well as, Ms Peroni argues that an explanation for the delay was that she was distracted by a right to information ('RTI') request, which took around 141 days. As I understand the submissions, this argument is based upon what Ms Peroni refers to as 'proper evidence gathering.' Ms Peroni submits that the time for gathering information should be expected to go beyond statutory limitation periods. Therefore, Ms Peroni submits, this warrants an extension of time.

[12] As to the union representative error argument, I do not accept that it is a satisfactory explanation for the delay for the following reasons. Firstly, it is uncontroversial that on 8 May 2024 Ms Peroni was verbally informed by the panel chair that she was not successful in her application for the Level 4 job. From that point in time, Ms Peroni was on notice that publication of the decision was pending because she knew that the job had gone to someone else.

[13] There is no evidence that the relevant union took on the responsibility entirely to watch for publication of an announcement, advise on, prepare and file proceedings within the limitation period. I therefore do not see this as the kind of representative error case that warrants an extension of time. Those cases that do are the ones where the applicant proves that they are entirely blameless. Usually that is done by proving they put the matter entirely in the hands of their representative within a reasonable period of time and the representative failed to file proceedings within the relevant time.[4] This is not such a case in my opinion.

[14] There is also no evidence from the union admitting that it was at fault and that Ms Peroni was entirely blameless. Ms Peroni is a union delegate. There is no explanation as to why the union was unable to put on any evidence that it was responsible for the delay and that Ms Peroni was blameless. I therefore draw the inference that the union's evidence would not have assisted Ms Peroni's argument on this point.[5]

[15] Further, as the Respondent points out in its submissions, the publication of the appointment is compulsory. It must occur within the prescribed one-month timeframe set out in Directive 07/23 - Recruitment and Selection. The publication date (31 May 2024) was about three weeks after Ms Peroni was told the job went to someone else. Accordingly, I do not accept that for nearly a year after being told the job went to someone else, Ms Peroni's failure to pick up on the publication of the appointment renders her entirely blameless in missing the limitation period.

[16] There is also no explanation as to why there was such a significant delay between 22 August 2024 (when Ms Peroni says she discovered the appointment had been published) and 28 May 2025 when Ms Peroni filed this application. That alone is a significant delay which remains entirely unexplained.

[17] The extent to which the above-mentioned distraction with the RTI application was causative of the delay is unclear on the submissions. Ms Peroni's submission is that she lodged the RTI application on 27 February 2025. However, that was a little over six months after Ms Peroni knew the appointment had been published. There is no explanation for that part of the delay between publication and lodging the RTI application.

[18] Ms Peroni submits that it was on about 14 April 2025, when the Respondent allegedly withheld some documents from the RTI process, that she decided to escalate the matter. But from that date of 14 April 2025 to the filing date was a further period of around six weeks. That part of the delay is also not explained.

[19] It appears, from the Respondent's submissions, that Ms Peroni was actively challenging the decision to appoint another person in the job. Ms Peroni had lodged a formal grievance about the matter on 16 December 2024. The outcome of the grievance was provided to Ms Peroni on 3 March 2025 and, on 17 March 2025, Ms Peroni sought a formal internal review of that outcome decision. On 7 May 2025, the decision on that review was provided. On 28 May 2024, Ms Peroni lodged this appeal and another appealing the review decision.

[20] However, actively pursuing internal review mechanisms does not adequately explain the delay in my opinion. On this point, I accept the Respondent's submission that Ms Peroni had access to industrial relations advice and was no stranger to rules and procedures governing how she could address her grievances. In Navaratnam v State of Queensland (Department of Employment, Small Business and Training)[6] Dwyer IC was not persuaded that an appellant's active history of challenges through internal processes amounted to a satisfactory explanation for the delay in filing the appeal. I respectfully agree with and follow that approach. Ms Peroni's internal challenges to the decision she now seeks to appeal do not adequately explain the delay in this case.

[21] In summary, I do not accept that there was any representative error that adequately explains the delay. As to the RTI process, I do not accept that it was so distracting in the circumstances that it adequately explains the delay. Several large portions of the delay are not explained at all. I have also considered any action Ms Peroni took to address the matter in the relevant period and remain unconvinced that there is a satisfactory explanation for the delay. This consideration weighs against an exercise of the discretion to extend time.

[22] There would be obvious prejudice to Ms Peroni if her appeal is not heard. If so, Ms Peroni's case could easily be one that falls into the category of 'perfectly good' cases that are defeated by adherence to the 21-day limitation period.[7]

[23] There is, however, something to be said for a respondent having to defend 'stale' proceedings that, by virtue of a statutory limitation period, it has assumed no action will, or can, arise for nearly a year now. In my opinion that presents more of a burden for Ms Peroni to overcome in the sense that McHugh J referred to in Taylor[8] when observing that the applicant still bears the burden of showing that the justice of the case favours the grant of an extension of time. That is probably more relevant in cases that turn on competing versions of fact. As noted earlier in these reasons, public service appeals are usually decided on the papers. They are a review of a decision to see if it was fair and reasonable. These appeals are not hearing witness accounts and determining competing versions of fact. They are therefore not as prone to the prejudice of having to run a case a long time after the events in question.

[24] However, as McHugh J observed in Taylor, the impact on quality of evidence and justice is only one of the considerations behind why limitation periods are enacted. There were three other considerations that his Honour observed (citations omitted):[9]

Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

[25] I am very much persuaded by his Honour's observations, and in applying them, I conclude that there would be a substantial prejudice to the Respondent if I were to allow the extra time Ms Peroni seeks. That includes weighing in the balance the fact that this is an appeal only, not a hearing on contested facts. To borrow from his Honour's observations above, in my view it would be oppressive to the Respondent to allow the appeal to proceed in these circumstances. It has been nearly a year since the statutory limitation period came and went without an appeal being lodged. The Respondent should be entitled to arrange its affairs on the basis that no appeal by Ms Peroni could be made on this decision.

[26] This consideration weighs against an exercise of the discretion to extend time in my opinion.

[27] The essential grounds of appeal are that the panel that decided to appoint another person was infected by a bias against Ms Peroni, which is manifest in the panel finding that she was unsuitable for the job. However, as the Respondent points out, the panel found that Ms Peroni was suitable for the job. It only found she was not the most suitable candidate for the job. It even placed Ms Peroni on a suitability list for consideration of future vacancies.

[28] The bias argument is based on Ms Peroni speculating that since she had some difficult interactions with some panel members in the past, this must have been a factor. I do not consider that to have strong prospects because no conflict of interest was declared by any panel members at the relevant time. As Pidgeon IC observed in Williams v State of Queensland (Queensland Corrective Services), [10] which was a case dealing with a very similar situation:[11]

[i]t is not unusual for panels to consist of people from the same workplace as applicants, and it is for this reason, in part, that the panel is required to consider potential conflicts, declare these and if necessary, put mitigations or strategies in place.

[29] There is no evidence of conflict in the materials, noting that I have everything before me that was relevantly before the decision-maker. I do not consider there to be any real prospects for this case as it is based purely on speculation, which is at odds with the evidence in the material before me.

[30] Further eroding those prospects in my opinion is a principle that was observed by Dwyer IC in Wyer v State of Queensland (Department of Education).[12] That was that the existence of some sort of historical professional relationship alone does not result in a reasonable perception of bias. Something more is needed before a reasonable perception of bias can be formed such that a selection process would be unfair and unreasonable.

[31] For these reasons, I consider Ms Peroni's appeal to have limited prospects. That consideration weighs heavily, offsetting the prejudice to Ms Peroni that arises from refusing to grant extra time. In my opinion, it adds weight to not exercising the discretion to extend time.

It would be unfair to others to grant the extra time sought

[32] In my opinion, if Ms Peroni were allowed the extra time she seeks, it would be unfair to others whose cases, with similarly limited prospects of success and unsatisfactory explanations for the delay, have been defeated by adherence to the limitation period.[13] This weighs against an exercise of the discretion to extend time in the manner Ms Peroni is seeking.

[33] I conclude that the delay is substantial in this case and that has the effect of bringing a significant prejudice to bear on the Respondent if I were to extend time. That is even taking into consideration the prejudice to Ms Peroni in refusing to grant extra time and the fact that this is not a hearing of contested fact. I conclude that Ms Peroni has not adequately explained the substantial delay of almost a year in this case. Again noting that Ms Peroni would obviously suffer prejudice if her case is not heard, I weigh against that my finding that Ms Peroni's case has limited prospects of success. I consider that it would be unfair to those applicants whose similar applications for extra time were refused if Ms Peroni were granted the extension of time she seeks. Those things considered, I am not persuaded that the justice of the case warrants the extension of time sought. I dismiss the application for an extension of time accordingly.

1. The application for extension of time is dismissed.
2. The appeal cannot be heard as it is without jurisdiction.

[1] Industrial Relations Act 2016 (Qld) ('IR Act') s 564.

[2] Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 [19], citing Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[3] [1996] HCA 25; (1996) 186 CLR 541 ('Taylor'), 547A cited and followed in Gillespie v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 160 [17].

[4] McColl v Toowoomba Regional Council [2025] QIRC 17 [24]-[28] applying Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 [64], which cited Clark v Ringwood Private Hospital [1997] AIRC 344.

[5] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[6] [2021] QIRC 411 [44]-[45].

[7] Neophytos Foundadjis v Collin Bailey [2007] ICQ 10.

[10] [2024] QIRC 6.

[12] [2022] QIRC 408.

[13] Stoyel v State of Queensland (Department of Environment and Science) [2023] QIRC 42; Grant v State of Queensland (Queensland Health) [2020] QIRC 228; O'Keefe v State of Queensland (Queensland Police Service) [2022] QIRC 364; Lu v State of Queensland (Queensland Health) [2024] QIRC 31.