Stone v State of Queensland

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

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

Kelsey v Logan City Council (no 2) [2022] ICQ 13

Truffet v Workers Compensation Regulator [2020] ICQ 013

Venables v State of Queensland (Queensland Health) [2022] QIRC 137.

J. Rohan, Darling Downs Hospital and Health Service, on behalf of the Respondent

• [1] Ms Elizabeth Stone commenced employment with the Darling Downs Hospital and Health Service ('the respondent') on 2 February 2009.

• [2] From 4 January 2019 until her ill health retirement Ms Stone was absent for extensive periods or otherwise (unsuccessfully) attempting graduated returns to work. From June 2021 until her ill health retirement in April 2024 (a period of almost 3 years) Ms Stone was entirely absent from work.

• [3] The basis for Ms Stone's absence is not relevant to this chronology and to protect her privacy it is sufficient to note that it appears she suffers from a complex constellation of physical and psychiatric ailments. Interspersed amongst this are various personal issues impacting her also.

• [4] Ms Stone's medical retirement in April 2024 was preceded by her attendance at an Independent Medical Examination ('the IME') in November 2023. Her medical retirement was founded on the evidence obtained at the IME.

• [5] Prior to the IME in November 2023 there were six prior attempts to have Ms Stone attend an IME that had to be rescheduled for one reason or another. Following an express direction in July 2023, Ms Stone failed to attend an IME scheduled in August 2023.

• [6] Ms Stone sought to reschedule the August 2023 IME. She provided written explanations for her alleged inability to attend. The respondent wrote to her and confirmed they were not reasonable excuses not to attend. Ms Stone did not provide medical evidence to support her request to reschedule until November 2023, 4 months after the scheduled appointment.

• [7] As a consequence of Ms Stone's failure to attend the IME in August 2023 a disciplinary process was commenced. This process included an opportunity for Ms Stone to show cause why she should not be liable to disciplinary action for her failure to comply with the direction to attend the earlier IME.

• [8] Following the show cause response by Ms Stone, a decision was made on 20 November 2023 to discipline Ms Stone. The disciplinary action taken was the imposition of a reprimand ('the decision'). Ms Stone had a right to appeal that decision within a period of 21 days.[1] Ms Stone did not file her appeal until 2 September 2024, more than 7 months beyond the statutory time limit.

• [9] Upon having this appeal allocated to me I reviewed the matter and noted:

1. The appeal was made out of time; and
2. Ms Stone had been medically retired from the Public Service in April 2024.

• [10] As a consequence of noting these facts I listed the matter for mention on 13 September 2024. At the mention I raised the time limitation issue with Ms Stone. I also raised the spectre of s 562A of the Industrial Relations Act 2016 (Qld) though, after discussion with the parties, I expressly excluded it from my consideration at this stage.[2]

• [11] I subsequently issued directions requiring each party to address why the appeal out to be allowed to proceed out of time.

• [12] In Truffet v Workers Compensation Regulator President Martin observed:[3]

The relevant principles with respect to an extension of time were considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations), where the following was said:

"On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:

'This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.'

I note that s 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will consider the merits of the appeal before finally determining the application for extension. As was said in Chapman v State of Queensland [2003] QCA 172:

'In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application ... An extension of time will not be granted if the court considers the appeal to be plainly hopeless.'

In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed. Now, as I said, I will consider the merits of the appeal, but I will deal first with the issue of the explanation of the delay and the extent of the delay."

• [13] In Forsyth-Stewart v State of Queensland (Department of Education), [4] Deputy President Merrell noted:

Guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, namely, that:

• special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
• action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
• 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;
• the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
• considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

• [14] I intend to be guided by these principles in my consideration of this matter.

• [15] On 17 September 2024 I issued directions for the filing of submissions. Each party filed written submissions in accordance with those directions. I have had regard to those submissions. I do not intend to restate those submissions in full in these reasons. I will refer to the relevant portions in my consideration that follows.

• [16] For completeness I note that the respondent's submissions include various grounds which they assert justify dismissing the appeal. These grounds include a submission that I exercise my discretion not to hear the appeal pursuant to s 562A of the IR Act.

• [17] Given that I expressly indicated at the mention on 13 September 2024 that I would not be considering the s 562A discretion, I do not intend to deal with the respondent's submissions to the extent they relate to that ground.

• [18] In reliance on the legal principles noted earlier in these reasons I intend to structure my consideration within the well-established framework of:[5]

• Length of the delay
• Explanation for the delay
• Relative prejudice to each party
• Other matters (including general merit of the appeal).

• [19] While I intend to consider each of these aspects individually, I hasten to add that no one factor alone will be decisive. Each of them will be considered in the overall context to arrive at a conclusion.

• [20] The appeal was filed almost 8 months after the expiration of the statutory time limit. Relevantly, there were no other steps taken by Ms Stone in that period that might have indirectly or otherwise alerted the respondent that she was intending to challenge the decision.

• [21] While consideration of the length of a delay should not be reduced to a superficial evaluation of the number of days, weeks, or months, the length of the delay in this matter is objectively significant by any standard. That is a factor that must count against allowing the appeal to proceed.

• [22] It would appear that Ms Stone's submissions address this aspect almost exclusively. While again noting the need to protect Ms Stone's privacy, it is not relevant or appropriate to descend into the extensive details of the various medical conditions afflicting her in the relevant period from December 2023 to September 2024. Suffice to to say that Ms Stone's explanation for the delay broadly relates to these medical conditions.

• [23] Ms Stone makes extensive submissions about these conditions and how she contends they affected her. Without actually using the terminology, Ms Stone appears to be contending that the vast number of medical and personal issues affecting her in the relevant time period have somehow robbed her of capacity to attend to filing her appeal.

• [24] In support of her submission Ms Stone attaches a collection of documents including a hospital discharge summary dated 21 June 2024, an information sheet about a medical condition apparently affecting Ms Stone, and a full-page letter from a physiotherapist detailing treatments for another condition between February and June 2024.

• [25] Significantly none of this information speaks to the question of Ms Stone's capacity in the relevant period. To the extent the physiotherapist purports to comment on Ms Stone's mental health, I note she merely reports what she is told by Ms Stone. I note further that her comments do not traverse the question of capacity to file legal proceedings and, nor could they, given the lack of proper qualifications to express such an opinion to a standard acceptable to this Commission.

• [26] I have no doubt that Ms Stone was beset with medical, personal, and emotional distress during the relevant period between December 2023 and September 2024. But given the long-standing nature of Ms Stone's complex constellation of problems, one has to wonder how that period was any different to the preceding five years.

• [27] In any event, there is a stark absence of independent evidence to support a conclusion that Ms Stone was unable to file her appeal at any time in the relevant period due to her medical or other problems. On the contrary, there is evidence that in April 2024 Ms Stone filed a workers compensation application with an extensive 14-page statement attached.

• [28] Some insight can be gleaned from this. The filing of the workers compensation claim coincides with the same month of Ms Stone's ill health retirement. Regardless of whether the workers compensation claim preceded her termination or not, it is plain that Ms Stone was entirely able to contemplate legal or quasi-legal procedures to address her workplace rights, at least in April 2024.

• [29] In those circumstances, while Ms Stone may have been emotionally distressed by her various conditions, and her enjoyment of daily life impeded by her circumstances, I consider the executive function required for the task of filing a workers compensation claim (with an extensive statement) demonstrates that she well and truly had capacity to file her appeal at that time.

• [30] There is no other acceptable explanation in her submission as why she did not. Consequently, I am not satisfied that Ms Stone has an acceptable explanation for the delay.

• [31] It is trite to note that Ms Stone will suffer prejudice if her appeal is not allowed to proceed. While she is currently not employed by the Public Service, the impact of the decision under review is that a reprimand is recorded on her personnel records. While not required to disclose a reprimand when applying for work with the Public Service in the future, it is impossible to discount its potential to have a prejudicial effect on any future employment prospects.

• [32] On the other hand, the respondent is entitled to finality.[6] The filing of this appeal, effectively 'out of the blue' some 8 months later, is well beyond what any respondent ought to reasonably be expected to endure. The potential for prejudice e.g. through the loss of continuity of personnel dealing with the issue is no small matter.

• [33] On the whole, I consider the respective prejudice to each party is evenly balanced.

• [34] Two other matters loom large in my consideration.

• [35] Firstly, Ms Stone has been medically retired from the Public Service since April 2024. Ms Stone contends she may wish to apply for work with the Public Service in the future.[7] That sentiment would seem to be in stark contrast the medical evidence she supplied with her reply submissions on 19 November 2024.

• [36] Again, without descending into the details of the medical conditions discussed, the letter from Ms Stone's treating Neurologist, dated 15 November 2024 says:

These conditions have led to work incapacity of a permanent nature but also affect her ability to travel and attend appointments to a variable degree on a day-to-day basis. This has been the case for a period of approximately three years.

• [37] Further, in an email dated 3 March 2025 from Ms Stone to the Registry she indicated she wanted this decision expedited so that she could pursue NDIS appeals. The medical opinion of Ms Stone's Neurologist and now her revelation of her immediate plans to pursue NDIS benefits would seem to contradict the assertions made at the mention in September 2024.

• [38] While Ms Stone's previously expressed aspirations to return to the Public Service may well be a product of positive or 'wishful' thinking, it seems clear to me from the independent medical evidence that she has recently supplied that she has little to no prospect of returning to employment in the foreseeable future. As unfortunate as this is, is calls into question the utility of hearing her appeal where a decision will have no practical effect on her employment.[8]

• [39] Secondly, having broad regard to the merits of Ms Stone's appeal I am not satisfied they are sufficient to warrant allowing it to proceed out of time. Ms Stone received a direction to attend an IME. Ms Stone submitted reasons why she could not attend and received a response in writing rejecting those reasons as reasonable excuses. She was given the option of providing medical evidence (before the scheduled IME) but failed to do so. Notwithstanding all of this, Ms Stone then failed to attend.

• [40] Reviews conducted under Chapter 11 of the IR Act are not conducted by way of rehearing. In the circumstances I can see no basis upon which I might be led to a conclusion that the decision proposed to be under review was unfair or unreasonable. The conclusion of the decision maker was entirely open to them in the circumstances. Moreover, the penalty was decidedly generous given the potential for significant consequences where an employee fails to obey a lawful and reasonable direction.

• [41] Having regard to all of these matters I am not inclined to allow the appeal to proceed out of time. In those circumstances the Commission has no judication to deal with the matter.

The appeal is dismissed for want of jurisdiction.

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

[3] (2020) ICQ 013, [8]-[9].

[4] [2021] QIRC 395, [19]. Note that these observations were not disturbed on appeal.

[5] See generally Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Breust v Qantas Airways Limited [1995] QGIG 777.

[6] Kelsey v Logan City Council (No 2) [2022] ICQ 13.

[8] Venables v State of Queensland (Queensland Health) [2022] QIRC 137.