State of Queensland v Lockhart [2014] ICQ 6

_Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266

Hansson v Pope (2009) 190 QGIG 276

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lockhart v Queensland Health [2014] QIRC 012

MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2000] QIC 37; (2000) 164 QGIG 370

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

The Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2006] QSC 76; [2007] 1 Qd R 1

Mr M. Healy, instructed by Crown Law, for the applicant.

[1] This is an application by the State of Queensland (Department of Health) ("the applicant") seeking the following:

"(a) Pursuant to s 331(b)(ii) of the Act an Order dismissing the application to appeal filed by the Respondent on or about 12 February 2014.

(c) An order that the Respondent, pay the Applicant's costs of and incidental to this application."

[2] On 19 July 2013 the respondent filed an application for reinstatement under s 74 of the Industrial Relations Act 1999 ("the Act") alleging that she had been unfairly dismissed by the applicant.

[3] The respondent had been employed by the applicant in several positions within Queensland Health; first at Royal Brisbane and Women's Hospital ("RBWH"), then at the Princess Alexandra Hospital, and then again at RBWH.

[4] It was not disputed at the hearing before the Commission that the termination of the respondent's employment occurred on 17 May 2013. However, the applicant contended that the termination of the respondent's employment came about by virtue of the effluxion of time consequent upon a temporary period of employment coming to an end.

[5] On 6 January 2014, the applicant filed an application (B/2014/1) to dismiss

Ms Lockhart's application for reinstatement on the basis that it had been filed out of time and further, that because she had been engaged for a specific period of time, the applicant was an employee to whom ch 3 of the Act did not apply by virtue of

s 72(1)(2), and was therefore excluded from applying for reinstatement.

[6] Matters TD/2013/58 and B/2014/1 were heard together on 20 January 2014.

[7] Section 74(2) of the Act requires that an application for reinstatement be made within 21 days after the dismissal or a further period the Queensland Industrial Relations Commission (the Commission) allows.

[8] The application was made some 63 days after the dismissal, or 42 days beyond the statutory 21 day time limit prescribed by s 74(2)(a) of the Act.

[9] Pursuant to s 74(2)(b) of the Act, the respondent sought from the Commission an extension of time in which to file her application for reinstatement.

[10] On 12 February 2014 the respondent filed an application to appeal in relation to the Commission's decision.

[11] Pursuant to s 341(1) of the Act, a person dissatisfied with a decision of the Commission may appeal to the Court only on the ground of error of law or excess or want of jurisdiction.

"341 Appeal from commission, magistrate or registrar

(1) The Minister, or a person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) or registrar, may appeal against the decision to the court only on the ground of -

[13] Counsel for the applicant submitted that the Court should dismiss the application to appeal on the basis that the respondent does not contend that there is an error of law or jurisdictional error with respect to the Commission's decision of 21 January 2014.

[14] At the mention of the matter before her Honour Vice President Linnane, the respondent conceded that she could not identify any error of law or of fact:

"APPELLANT: I do. I was quite underprepared, in hindsight, for the discussion in relation to the extension of time when it came to the hearing. So I didn't have that evidence. So it's not that there was an error of law or an error of fact, but there was a lack of evidence - - -

THE VICE PRESIDENT: If you - sorry. Didn't you have that evidence with you on the day?

APPELLANT: I - no, I didn't. I was relying on my memory 5 and during cross-examination, I was trying to - you know, I was trying to give that evidence - - -

APPELLANT: - - - but I didn't have any hard documentation to really be able to back it up. It wasn't convincing enough for the judge. I was more - I honestly didn't think that that - I didn't think that it would get struck out. I spent my time preparing for the actual argument, preparing my cross-examination questions for the seven witnesses etcetera."

[15] The applicant submits that to enliven the jurisdiction and discretion of the Court the respondent must demonstrate that the Commission has:

(f) has not taken into account some material consideration;

(h) reached a mistaken conclusion or that upon the facts, the decision is unreasonable or plainly unjust.

[16] In response to the applicant's submission, the respondent submitted at paragraph 8 of her submissions:

"The ones that I wish to demonstrate in this case are:-

c) ignored relevant material; (unintentionally, as the relevant material was not made available by myself - an innocent omission on my part)e) mistaken the facts; (as no facts were able to be ascertained due to a lack of evidence - an innocent omission on my part);f) has not taken into account some material consideration; (as the material was not made available by myself - an innocent omission on my part);h) reached a mistaken conclusion or that upon the facts, the decision is unreasonable or plainly unjust (due to having no facts to rely on, which can now be remedied by the "Application to Adduce Further Evidence" which is essentially, the evidence that should have been available on the day but wasn't (an innocent omission on my part)."

[17] The respondent submitted that she was "under-prepared" and was "... unable to adequately argue my reason's for lodging the application out of time, and had submitted no evidence, no actual facts, several errors of fact have occurred." It was for these reasons that the respondent erroneously believed that there was an error in the "decision making process" by the Commission.

[18] Whilst it must be acknowledged that the respondent found the process "gruelling" it must also be accepted that the respondent's lack of preparedness before the Commission does not enliven the jurisdiction or the discretion of the Court.

[19] The respondent did not identify in the application to appeal or during argument before the Court any error of law or excess or want of jurisdiction by the Commission.

[20] In The Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland,[1] Chesterman J wrote:

"The need to determine whether there was an error of law which would enliven the Industrial Court's appellate jurisdiction immediately gives rise to the question who should determine the existence of the jurisdictional fact. The question admits only one answer. It must be the Industrial Court which determines whether there has been an error of law in the decision of the Commission and therefore whether it has jurisdiction to entertain an appeal."[2]

[21] In O'Sullivan v Farrer,[3] Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression "in the public interest". Their Honours wrote:

"Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view."[4]

[22] In GlaxoSmithKline Australia Pty Ltd v Makin,[5] the Full Bench of Fair Work Australia in considering what constitutes "the public interest" wrote:

"Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case."[6]

[23] The respondent has not demonstrated that the Commission erred in the exercise of its discretion to dismiss the application for extension of time and to strike out the application for reinstatement.

[24] As Martin P observed in Burke v Simon Blackwood (Workers' Compensation Regulator), "The burden upon a person seeking to upset the exercise of such a discretion is described in the well-known decision of the High Court in House v The King".[7]

[25] The respondent has not raised any grounds why the discretion should be upset nor have any grounds been raised to enliven the Court's appellate jurisdiction.

[26] Accordingly, I am of the opinion that it would not be in the public interest for this appeal to continue and, in exercise of my discretion pursuant to s 331 of the Act, I dismiss the application to appeal filed by the respondent on 12 February 2014.

[27] The applicant seeks an order for costs of and incidental to this application.

[28] The Court's power to grant costs is found in s 335 of the Act. That section provides:

(1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied-

(a) the party made the application vexatiously or without reasonable cause; or

(b) for an application for reinstatement-the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings.

(2) In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party."

[29] In MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland,[8] Hall P, in considering s 335, wrote:

"It seems to me to be more likely that s 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made."[9]

[30] I accept that the application for appeal lodged by the respondent had no objective prospects of success. In that regard the discretion to award costs has been enlivened. As was observed by Hall P in Hansson v Pope,[10] the discretion to award costs having arisen the critical issue is whether it should be exercised. In Hansson, his Honour wrote:

"Whilst I accept that caution should be exercised in the award of costs against an unrepresented litigant treating the Court as a layman's court, it is important that fairness be displayed on both sides of the ledger, and that a respondent put to the expense in defeating an unreasonably made application should be denied recovery of his costs on the ground of sympathy for the applicant simpliciter."[11]

[31] In exercising my discretion I have taken into consideration that the respondent was unrepresented and mindful of the need not to discourage workers from taking issues to the Commission or the Court. Further, I have considered the conduct of the applicant referred to in the following paragraphs from the Commission's reasons for decision:

"[40] The conduct of the Respondent in its response to this application causes me some concern. Instead of moving expeditiously to have the question of the extension of time dealt with, it waited until the eve of the hearing that was listed for four days to bring its application to dismiss. The Respondent has expended significant time and resources in preparing many witness statements dealing with the substantive issues in the case. The Applicant has had to read this material and reply to it. Had she been legally represented she would, no doubt, have incurred substantial legal costs.

[41] Although Mr. Healy provided me with an explanation for the delay, I nevertheless consider that the Respondent, even before it engaged lawyers, should have sought to agitate the time limit issue much more expeditiously than it has.

[42] Although the conduct of the Respondent militates in favour of an extension of time, on balance, it is not sufficiently egregious to persuade me that I should exercise my discretion in favour of the Applicant."[12]

[32] In the circumstances, I am of the view that this is not an appropriate matter in which to exercise my discretion to award costs under s 335 of the Act.

1. Pursuant to s 331 of the Act, the application to appeal filed by the respondent on 12 February 2014 is dismissed; and

[1] [2006] QSC 76; [2007] 1 Qd R 1.

[3] [1989] HCA 61; (1989) 168 CLR 210.

[5] [2010] FWAFB 5343; (2010) 197 IR 266.

[7] _Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision [11] (citations omitted), quoting House v The King [1936] HCA 40; (1936) 55 CLR 499,

[8] [2000] QIC 37; (2000) 164 QGIG 370.

[10] (2009) 190 QGIG 276.

[12] Lockhart v Queensland Health [2014] QIRC 012 [40]-[42]._