Sainty v Director-General Queensland Health [2025] QSC 323

[1] Ms Sainty has brought an application under the Judicial Review Act 1991 (Qld) for a statutory order of review. She was suspended from her employment as a nurse. She alleges in the application that the suspension was made under the internal directives purportedly authorised by public health legislation and the COVID-19 emergency powers.

"The applicant is aggrieved by the decision because-

(1) the decision was an unlawful exercise of executive power without judicial oversight by a Chapter III court;

(2) the decision was not subject to any judicial determination on its constitutional validity;

(3) the Queensland Industrial Relations Commission, as a non-Chapter III tribunal, lacked jurisdiction to adjudicate the constitutionality of the executive act;

(4) the continued live controversy regarding the lawfulness of the suspension makes the matter justiciable before the Supreme Court as a Chapter III court; and

(5) judicial review is required to determine whether constitutionally protected rights, such as freedom from arbitrary exclusion from lawful employment, can be infringed by executive action without judicial determination."

[3] The grounds of the application state that the decision was affected by an error of law, namely:

"(1) it was an unlawful exercise of executive power without judicial oversight by a Chapter III court; (2) it was not subject to any judicial determination on its constitutional validity; (3) the Queensland Industrial Relations Commission, as a non-Chapter III tribunal, lacked jurisdiction to adjudicate the constitutionality of the executive act; (4) the continued live controversy regarding the lawfulness of the suspension makes the matter judiciable before the Supreme Court as a Chapter III court; (5) judicial review is required to determine whether constitutionally protected rights, such as freedom from arbitrary exclusion from lawful employment, can be infringed by executive action without judicial determination."

[4] In those circumstances, Ms Sainty claims a declaration that the decision by Queensland Health to suspend her was unlawful. Secondly, an order in the nature of certiorari quashing the suspension decision. Thirdly, an order of mandamus. Finally, an order seeking an extension of time for the filing of the application. I note that the application was filed on or about the 20 June 2025, and it may be observed immediately that it is out of time and leave is needed to extend time if the matter is to proceed.

[5] Now, the Public Service Act 2008 (Qld) was in force as at 1 July 2021. In that particular Act, during the COVID pandemic, various provisions were relied on. Section 137 provided a power in the chief executive of a department to "may, by notice, suspend a person from duty if the chief executive reasonably believes (a) for a public service officer the proper and efficient management of the department might be prejudiced if the officer is not suspended or (b) for a public service employee the employee is liable to discipline under a disciplinary law". The suspension in this particular case was referred to me, and I have had regard to that.

[6] There was a letter dated the 25 January 2022 from Mr Campbell, director HR operations, Sunshine Coast Hospital and Health Service, purportedly acting under this section. Now, the Director-General, the respondent, has applied pursuant to s 48 of the Judicial Review Act to summarily dismiss the originating application to review the lawfulness of the decision by the respondent's delegate on 25 January 2022 to suspend Ms Sainty on normal remuneration under that section. The basis of the decision was a failure to comply with the health employment directive 12/21, employee COVID-19 vaccination requirements. The grounds of the application are (1) it was not made within time, and there is no reason to grant an extension, and (2) there is no reasonable basis for the originating application.

[7] Now, in reaching my decision here, I have had regard to all the material and the submissions made. I did read it carefully before coming into Court. A constitutional issue has been raised, and s 78B of the Judiciary Act does require notice to the Attorneys-General of the Commonwealth and states where such an issue is raised. In Panesar v Attorney-General (Cth) [2025] FCA 477, Feutrill J held that the section is not engaged merely because a party asserts there is a cause arising under the constitution. It was said that section 78B is not intended to permit never-ending challenges to matters which have already been determined by the High Court.

[8] As a matter of caution, the respondent did issue notices under the section, and there have been no responses of an intention to appeal. I am satisfied the section has been complied with. Now, by way of background, on 11 September 2021, then-Director-General of Queensland Health approved the first version of the health directive 12 of 2021. On 30 September 2021, it was reissued with some amendments, and pursuant to clause 8.1 of Health Directive 12 of 2021, the applicant was required to have at least the first dose of a COVID-19 vaccination by 30 September 2021 and have received the second dose of the vaccine by 31 October 2021.

[9] Now, the applicant on the evidence did not comply with this requirement and has reasons for that. Whether justifiable or not is not to the point at this point in time. On 30 September 2021, the applicant applied for an exemption pursuant to clause 10, but that was refused on 10 November 2021. And as I said earlier, Mr Campbell - the delegate of the respondent -pursuant to an instrument of sub-delegation, made the impugned decision of suspension under s 131 of the repealed Public Service Act.

[10] On 10 May 2022, the suspension became a suspension without pay. On the 2nd of February 2022, Ms Sainty filed proceedings in the QIRC, appealing the exemption decision. On the 6th of September 2023, these discontinued by consent. On 31 May 2022, some more proceedings were filed in the QIRC, appealing the decision to suspend without pay. On 9 February 2023, Deputy President Merrell confirmed the decision being appealed against[1]. On 26 February 2024, the applicant returned to her role as a dental assistant.

[11] Now, as I discussed earlier, under s 137(1)(b) of the repealed Public Service Act, there was power given by the state parliament to the chief executive of a department to suspend someone from duty if they reasonably believed they were liable for discipline under a disciplinary law. Now, a disciplinary law is defined in schedule 4 to mean a disciplinary provision of an industrial instrument or a law prescribed under regulation. Section 187(1) of the repealed Act set out the grounds that the public service employees chief executive could rely on to discipline an employee. In this case, the suspension was on the basis that Mr Campbell reasonably believed that Ms Sainty was liable for discipline because she had contravened without reasonable excuse a direction given to her as a public service employee.

[12] Now, I first turn to the issue of time here. Under s 26 of the Judicial Review Act, an application for a statutory order of review of the impugned decision was to be made no later than 28 days after the decision was made or at such further time as the court allows. The impugned decision here was recorded in writing. So, it may be said that the 28 days started running after 25 January 2022. Justice Applegarth in Waratah Coal v Nicholls [2013] QSC 68 examined this provision and at paragraph 77, noted this, "In determining whether to grant an extension of time pursuant to s 26 of the JRA, consideration should be given to: (a) the explanation given for the delay; (b) whether the grant of an extension would be fair and equitable in the circumstances; and (c) the merits of the application for review."

[13] These principles have been applied in other cases, including Allwood v Sundin, Chung, Greaves & Anor [2020] QSC 188, which was affirmed on appeal, [2021] QCA 196, particularly at paragraphs 24 to 28. Mr Ferguson, who is assisting Ms Sainty with this matter, has provided an affidavit dated the 12 June 2025. That sets out the explanation for the delay here. He says that they were concerned with the QIRC proceedings, and he points out that proceeding number (183 of 2022) was discontinued on 6 September 2023. He also submits that the originating application raised constitutional issues, which took some time for him to research. He also points out that Ms Sainty is self-represented and suffers ongoing financial hardship.

[14] The respondent, by way of response, points out that the relevant date here was the 25th of January 2022. It is submitted that on the merits of the application, no constitutional question is alive. On the issue of her being self-represented, this does not mean that there should be an extension and it is submitted that the delay is inordinate. It is submitted that there is no satisfactory explanation for the delay. Another question to be considered is whether it would be just and equitable to grant an extension. In that regard, Justice Applegarth in Waratah Coal[2] at paragraph 78 noted, "Whether the grant of an extension would be fair and equitable depends upon a wide range of circumstances including prejudice to the respondents, the third parties and the public interest."

[15] Now, the respondent's submission is that that public interest is not served in this case and judicial review of administrative decisions should be undertaken promptly, relying on Chibanda v Chief Executive Queensland Health [2018] QSC 128, another decision of Justice Applegarth. The public interest is in favour of not encouraging delay and the absence of prejudice to the respondent is not enough of itself to grant an extension. On the issue of merits, the basis of the challenge of the impugned decision appears to be expressed this way:

"Can a coercive executive Act that interferes with constitutionally protected rights, including freedom from arbitrary exclusion from lawful employment and freedom from executive overreach be lawful, when no Chapter III court has determined its validity."

[16] The respondent here submits that the constitutional issue discloses no ground of review, and it is that question to which I now turn. The constitution certainly does not expressly include a right to freedom from arbitrary exclusion from lawful employment and freedom from executive overreach. It seems to me, in this case, on the material I have read, that the respondent was exercising administrative power when he made the impugned decision.

[17] Section 137 of the repealed Act, to my mind, did not confer a function on a State court which substantially impairs its institutional integrity, as a repository of Federal jurisdiction contrary to the Kable principle. The Kable principle has been expressed in more recent times in Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51 at 139 as, "The principle for which Kable stands is that because the constitution establishes an integrated court system and contemplates the exercise of Federal jurisdiction by a State's Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity and which is, therefore, incompatible with that court's role as a repository of Federal jurisdiction, is constitutionally invalid."

[18] For example, if there was a law which provided that the executive overrode a court's power, there might be an argument that there was breach of such a principle. In Kirk v the Industrial Relations Commission (Nsw) (2010) 239 CLR 531[3], is a case in question. It stands for the proposition that one of the defining characteristics of the Supreme Court of a State is that it possesses a supervisory jurisdiction over inferior courts and tribunals. It is therefore beyond State legislative power to deny a Supreme Court of a State the power to grant relief in the nature of certiorari for jurisdictional error. When I read the terms of s 137, to my mind, there is nothing in the section which infringes the Kable principle. There is nothing in there denying the power of a court to grant such relief. I do not consider that this is a provision which substantially impairs the institutional integrity of the Supreme Court. It is hard to see, in those circumstances, there is a breach here of the Kable principle.

[19] Now, with respect to an extension of time, in Sica v Attorney-General (Qld) (2021) 9 QR 543, the principles were examined. Justice Burns noted:

"Section 48(1)(a) of the Judicial Review Act confers a general power on the court to stay or dismiss an application if the court considers it inappropriate to permit a proceeding to continue or to grant the application. The power has been described as a broad one, and may be exercised by the court on its own motion. It has been called in, (a), to amongst other things in the proceeding, which concerned a decision that was not subject to the Judicial Review Act 1991 and where the court determined that the application was doomed to fail. The provision is not to be read down by reference to paragraphs (b), (c) and (d), of section 48(1). Instead, it should fully operate according to its terms, subject only to the constraint that the inappropriateness must relate either to the continuation of the proceeding or to the granting of the application. The power is not confined to cases where error is demonstrated. Section 48(1)(a) can be pressed into service, even if error on the part of the decision-maker is shown, for example, where there is good reason for otherwise not allowing the proceeding to continue or for not granting the relief sought. Plainly, a clear case will be required before the court may conclude that an application should be stayed or summarily dismissed, but this is one such case."

[20] I agree that, in essence, this is an application to summarily dismiss an originating process, and the Court, in such a situation, is required to take the applicant's material at its highest and adopt the most favourable view of the law when considering the material.

[21] If, for example, the law is uncertain in a particular area, that may provide grounds for refusing to act under this section and, indeed, to grant an extension of time. In this case, though, having considered all the material, I am satisfied on the grounds brought that the application is doomed to fail. I do not consider there is merit in the argument set forth in the application and in the material.

[22] There is some explanation for the delay up until 2023 because of the QIRC proceedings, and I do accept it would have taken Mr Ferguson some time to research the constitutional issues. Having said that, the delay was from 2023 through to June 2025, which is a significant period. In light of the view I have taken as to the merits of the matter, I'm not inclined to grant leave to extend time in this particular case, in the exercise of my discretion.

[23] In those circumstances, I have determined to dismiss the originating application.

[24] I order Ms Sainty pay the respondent's costs fixed in the sum of $5,000.

[1] See Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78.

[2] [2013] QSC 68.