//
[2026] QIRC 73
General information, not legal advice.
Queensland Industrial Relations Commission
2026-03-18
Dalton J
Original judgment source is linked above.
PUBLIC SECTOR - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PROCEDURE - COMMISSION PROCEDURE - STAYING PROCEEDINGS - where the appellant has applied for a stay of all substantive and interlocutory decisions pursuant to s 451(1) of the Industrial Relations Act 2016- where appellant requested a stay of the decisions pending the consideration and determination of a purported Public Interest Disclosure made by the appellant - where appellant also seeks stay pending the outcome of a Right to Information request lodged with the respondent - where respondent objects to stay - considerations of relevant factors matters in granting a stay - where respondent has relied, in part, on the decision subject of this appeal to commence a disciplinary process -application for stay dismissed.
INDUSTRIAL LAW - PUBLIC SECTOR - INTERLOCUTORY APPLICATIONS - application by appellant seeking to amend stay application - application to amend made after parties had provided submissions - consideration of relevant factors - proposed amendments not allowed - leave to amend application for stay denied.
Industrial Relations (Tribunals) Rules 2011 (Qld) r 18, r 19, r 20, r 21, r 22, r 23
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No 2) [2021] QIRC 278
Bond v Multicap Ltd [2020] QIRC 051
Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380
Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16
DR v IU & Ors [2023] QIRC 251
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)
Grainey v State of Queensland [2022] QIRC 301
Kelsey v Logan City Council & Ors (No.7) [2019] QIRC 085
Lyzette v Safe Places for Children [2020] FWC 4770
McMahon v Gould (1982) 7 ACLR 202
Nesbit v Metro North Hospital and Health Service [2021] ICQ 005
Perry v State of Queensland (Queensland Health) (No. 2) [2024] ICQ 008
Robertson v McDonald's Australia Limited [2021] QIRC 344
Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 327
XY v State of Queensland (Department of AB) [2025] QIRC 248
[1] The substantive appeal is a public sector appeal which challenges a disciplinary action decision against XY ('the Appellant') contained in a decision dated 28 February 2025. The proposed disciplinary action in that correspondence was to redeploy the Appellant to a new role with a consequent reduction in classification from an AO8 down to an AO6(4) role.
[2] The factual background to the disciplinary action was an allegation that the Appellant had downloaded on to their work laptop unauthorised software. Following an audit being conducted on the Appellant's computer, a disciplinary process was commenced which concluded with the disciplinary action set out in the preceding paragraph.
[3] The substantive appeal has generated a number of applications in existing proceedings which have been filed by the Appellant. This decision deals with one of those applications. On 7 May 2025, the Appellant filed an Application in Existing Proceedings requesting that the following decisions be stayed:
a) The disciplinary finding dated 20 January 2025;
d) Any determination of my application for an extension of time to appeal the disciplinary finding.
[4] The other applications that have been filed by the Appellant include:
[5] In relation to the stay application, the Appellant seeks that if the application is granted, that the stay remains in force until the first to occur of:
[6] The Appellant relies upon two substantive grounds to justify a stay being granted by the Commission.
[7] Firstly, the Appellant submitted a PID on or about 28 April 2025 which traverses the same factual history that is relevant to the substantive public sector appeal. The Appellant submits that the PID includes allegations of maladministration, investigative and disciplinary bias (including pre-determination), and misuse of public resources.[2] The Appellant contends that the Commission determining the substantive appeal before the PID is finalised, risks duplicative findings, or at worst inconsistent findings.
[8] Secondly, the Appellant relies upon the Respondent's failure to appropriately address an RTI request submitted with the Respondent on 25 February 2025.
[9] The background to this issue is that whilst the Appellant's laptop was the subject of an audit, a human resources officer employed by the Respondent prepared a referral request to Strive Occupational Rehabilitation on 27 August 2024 requesting support for the Appellant ('the referral'). [3] Under the heading 'Reason for referral services requested', the referral in part states '[XY] is participating in a disciplinary process'.
[10] The Appellant contends that this indicated a pre-determination of the outcome of the investigation. The RTI request seeks any documents relevant to the referral request (in addition to a number of other documents). The Appellant contends that the evidentiary record for the substantive public sector appeal will be incomplete if it is determined prior to the outcome of the Appellant's RTI request.
[11] The Respondent objects to the Appellant's application and submits that the Commission should not exercise its discretion to grant the stay.
[12] On 28 July 2025, the Appellant filed a further Form 4 - Application in Existing Proceedings which, in addition to other orders, sought leave to amend the Form 4 Application filed on 7 May 2025 by expanding the scope of the stay sought by the Appellant.
[13] The Respondent has objected to the Appellant's application to amend the Form 4 filed on 7 May 2025.
[14] The issues for my determination are whether the Commission should exercise a discretion to:
[15] In relation to those issues I have determined:
[17] Rule 6 of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunals Rules') states:
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.
[18] Section 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly states:
(1) The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2) Without limiting subsection (1), the commission in proceedings may -
(a) give directions about the hearing of a matter; or
(b) make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c) make an order it considers appropriate.
[19] Section 566 of the IR Act provides a specific source of power for the Commission to order a stay of the decision being appealed as follows:
(1) On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending -
(a) the determination of the appeal; or
(b) a further order of the industrial tribunal.
(2) This section does not apply to an appeal under the Workers' Compensation and Rehabilitation Act 2003, chapter 13, part 3 against a decision to allow an application for compensation under that Act.
[20] The Appellant relies on a number of grounds in the Application which was filed. These grounds are as follows:
[21] In compliance with a Directions Order from the Commission, XY filed submissions to support their Application for a stay on 14 July 2025. The submissions touch on a range of matters, all of which are not necessary to this decision. I have considered all the submissions made by the parties even where they are not specifically referred to in this decision.
[22] Despite the original Orders sought by the Appellant being contained to the determination of XY's PID, their submissions expand on this. The new orders sought are for a stay to remain in place until the determination of the PID and Department AB disclosing to the Appellant a number of materials sought through a Right to Information application ('the RTI materials').
[23] The Appellant's submissions focus mainly on an argument that should the substantive decision in this matter be decided prior to either the PID or RTI materials being obtained, the Commission would be opening itself up to a manifest risk.
[24] This submission is developed on the basis of a few different contentions including the possibility of inconsistent or duplicate findings being made by separate statutory frameworks. XY submits that this occurring would undermine the integrity of those statutory frameworks and erode public confidence in their administration.
[25] The Appellant further contends that the Commission would be at risk of making a determination which would rest on a defective factual foundation which would create an "irremediable evidentiary void that could not be cured on an Industrial Court of Queensland record based appeal". This contention is based on the Appellant's argument that the RTI materials include critical evidence to prove that Department had indeed predetermined the investigation's outcome.
[27] The Appellant contends that the three limbs of the relevant legal test are satisfied, being:
[28] The Appellant also submits that the Commission's own jurisprudence and that of cognate industrial tribunals confirms that interlocutory stays are not merely available but imperative where parallel processes threaten to vitiate procedural fairness. To support this contention, the Appellant cites a decision of Commissioner Power in Bond v Multicap Ltd[7] ('Bond') and a decision of the Fair Work Commission of Lyzette v Safe Places for Children.[8]
[29] The decision of Commissioner Power in Bond involved a restraint being placed on an employer from dismissing an employee on the basis that a complaint was on foot in the Queensland Human Rights Commission. By analogy, the Appellant contends that the same rationale applies here and proceeding to determine the substantive appeal whilst the PID inquiry remains unresolved and the critical RTI materials remain undisclosed would compromise the integrity of the Commission's fact finding and expose the proceedings to a risk of a perverse, or worse, nugatory outcome.
[30] To begin, the Respondent notes the Appellant's attempt to expand the scope of the stay orders which are sought to include a stay until certain documents are disclosed. The Respondent submits that no formal application to amend the scope of the orders has been filed and contends that it is inappropriate for the Appellant to now expand their case. The Respondent objects to the expanding of the scope of the application.
[31] In relation to the expanded orders however, the Respondent does submit that a request for a stay until disclosure occurs is unnecessary as the Commission will be required to decide other outstanding interlocutory applications prior to determining the substantive appeal. One such application is a disclosure application made by the Appellant.
[32] The Respondent notes that granting a stay is a discretionary power and the Appellant has the burden to establish that it is necessary or convenient to grant the stay and doing so would facilitate the just and expeditious disposition of the appeal when weighed against the prejudicial effect on the Respondent's right to a timely conclusion of the disciplinary process.
[33] The Respondent submits that the Appellant has not discharged the burden to establish that it would be necessary or convenient to grant a stay.
[34] In relation to the grounds involving the PID application, the Respondent submits that the 14 days following an outcome of the PID application has now passed as the Appellant was provided with an outcome on 13 June 2025. The Respondent further contends that now the 28 April Disclosure has been assessed and the assessment confirmed on an internal review, there is no further utility to granting the orders sought in paragraph A.2,(a) of the application, as the 14-day post-assessment timeframe has passed.
[35] The Respondent then goes on to contend that even if the PID application was still under assessment there is no risk of duplicative or inconsistent findings and processes because the jurisdiction held by the Commission to determine Public Sector Appeals is limited to whether the appealed decision was fair and reasonable, based on the material before the decision maker at the time of the decision.[9] The Respondent submits that no disclosures purportedly under the PID Act were made until after the disciplinary decision was made.
[36] The Respondent further submits that it is open to the Appellant to make submissions regarding the impugned actions of the Department (such as the allegation of pre-determination) in the substantive public sector appeal.
[37] Any further delays in this appeal process, are contended by the Respondent to cause significant prejudice to Department AB as the continuation of the appeal leaves the Appellant on paid suspension pending the resolution of the substantive appeal.
[38] In response to the Appellant's reliance on case Colebourne and Grainey, the Respondent submits that those cases relate to applications to stay the decision being appealed and are not relevant because disciplinary action is already stayed in this matter.
[39] The Respondent makes further submissions regarding the principles governing the Commission's discretion to make the orders sought by the Appellant. Those submissions will be considered in more detail later in these reasons.
[40] The Respondent submits that the granting of a stay may also impact the ability for the Commission to decide other outstanding interlocutory applications and contends that the Department is entitled to a timely conclusion of the disciplinary process which the granting of a stay would prejudice.
[41] The Respondent contends there is no utility in a stay in relation to the disclosure issue because of the Appellant's disclosure application to the Commission. It is submitted by the Respondent that the Commission will need to determine that application prior to determining the substantive appeal, which means that there is no utility in granting a stay.
[42] It further submits that there is no utility or public interest in making the orders sought and seeks the Commission to dismiss the application.
[43] The Appellant filed their submission in reply on 2 September 2025 however, it is crucial to note that on 28 July 2025, an application was filed by XY which inter alia sought leave to amend this stay application. I have considered the application for leave to amend below.
[44] In response to the Respondent's contention that there is no utility in granting the stay as the PID has already been assessed, the Appellant submits that this overlooks their subsequent referral by Hon Andrew Powell MP to the Crime and Corruption Commission ('CCC') and Form 4 filed 28 July 2025. The Respondent's submissions were filed on 21 July 2025 prior to both of the above events taking place.
[45] The Appellant maintains that the Commission would be exposed to a real risk of duplication or inconsistent findings should it proceed prematurely. They also maintain that the limbs of what they contend is the Colebourne and Grainey test are satisfied.
[46] In response to the contention raised by the Respondent that they are prejudiced by the delay and cost of paid suspension, the Appellant submits that 'prejudice of that kind is an administrative inconvenience only and cannot outweigh the imperatives of fairness and legality'. The Appellant then goes on to contend that had the Department assessed the PID properly, they would have found that predetermination and bias had infected the investigation.
[47] The Appellant contends that they themselves face grave prejudice being loss of reputation, financial harm and the risk of nugatory proceedings if external bodies or disclosure later contradict the record.
[48] The Appellant furthers submits that public resources strongly favour the grant of a stay as proceeding now would waste time and money by risking duplicative hearings and remittals. They conclude that the Respondent's submissions misconceived the scope and purpose of the stay and requests that the Commission grant the order.
Application of 28 July 2025 to Amend the Orders
[49] The Appellant filed a Form 4 - Application in existing proceedings on 28 July 2025 following the Respondent's submissions. The Application inter alia sought leave to amend this stay application. The amended orders sought are as follows:
Leave to amend- Stay application filed 7 May 2025: By virtue of r 18 IRR, leave nunc pro tunc be granted to amend the stay so that it shall remain in force until 14 business days after the latest of:
(a) service upon me of the Queensland Ombudsman's final investigative determination of the public interest disclosure ("PID") complaint; and
(b) service upon me of the Queensland Human Rights Commission's final determination of the complaint submitted on 21 July 2025 (Exhibit PAA-20); and
(i) the IEG19 "independent review' written "outcome" or report; and
(ii) the Respondent's internal review decision under cl 9.2 Directive 11/207; and
(iii) all documents responsive to RTI Applications 474467, 481926 and 485887 (collectively, "RTI material requests 1-314")
[50] Upon the filing of the Application, a Directions Order was issued for the parties for file submissions. The relevant submissions of the parties in relation to the application for leave to amend the Stay Application are summarised below.
[51] The Respondent contends that the Commission should not grant the requested leave as it would be unfair to the Respondent for the application to be amended several months after it was filed and after submissions have already been filed. It submits that the requested amendments lack merit and would be an abuse of process, inappropriately delaying the appeal.
[52] The Respondent further contends that this matter ought not be delayed by complaints or processes that the Appellant has made after commencing this appeal and reiterates the abuse of process for the Appellant to obtain a stay so that they can remain on suspension on their higher rate of pay. This is submitted to be inconsistent with the Commission's purpose to resolve matter expeditiously.
[53] The Appellant maintains that Rule 18 of the Tribunals Rules expressly permits the amendments which are sought and therefore they are far from an abuse of process and would rather ensure that the Commission adjudicates the appeal on a complete and accurate record.
[54] In response to the delays identified by the Respondent, XY submits that the amendments were filed promptly after the Respondent's objections to the attempted broadening of the scope crystallised.
[55] The Appellant contends that it is not an abuse to seek an adjournment pending resolution of related statutory processes and that it rather secures procedural coherence, avoids inconsistent findings and conserves public resources.
Consideration - Application for leave to amend
[56] To address the application for leave to amend the Form 4 Application filed on 7 May 2025, it is necessary to consider some of the procedural history regarding this application.
[57] An initial directions order in relation to the application was issued by the Commission on 9 May 2025.[10] That directions order required the provision of submissions from the parties on 23 May 2025, 6 June 2025 and reply submissions from the Appellant on Friday, 13 June 2025.
[59] Further Directions Order [6] dated 2 July 2025 provided the following timeline for the hearing of the matter:
[60] In Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No 2)[13] ('ASMOFQ'), Deputy President Merrell provided the following guidance regarding the matters to be considered when determining an application for leave to amend:
[61] The Appellant relies on r 18 of the Tribunals Rules for the power to amend the original application. Rules 18 and 19 of the Tribunals Rules relevantly provide:
(1) An application may be amended, before the hearing of the application, by the applicant filing an amended application that incorporates the amendments.
(2) The amended application must replace the whole of the application.
(3) The registrar may make a directions order if the registrar considers it necessary because of the amended application.
(1) An amendment must be distinguished from the original text by -
(a) if text is being added - underlining or shading the added text; or
(b) if text is being deleted - crossing out the deleted text.
(2) An amended application must be in the approved form.
[62] In my view r 18 of the Tribunals Rules does not apply in the circumstances of the present application. In the context of an application being heard on the papers, the hearing of the application commenced on 14 July 2025 when the Appellant filed their submissions. A further step in the hearing occurred on 21 July 2025 when the Respondent filed its submission in response to the application for a stay.
[63] According to Further Directions Order [6] dated 6 July 2025, the Appellant was due to file their reply submissions on 28 July 2025. The Appellant did not file reply submissions on 28 July 2025. The Appellant also did not seek leave for an extension of time to file their reply submissions. The reply submissions were ultimately filed by the Appellant following a significant delay on 2 September 2025.
[64] Given that direction (4) of Further Directions Order [6] specifically noted that the requirement for reply submissions was only if the Appellant considered that they were needed, the Commission was entitled to rely on the Appellant's failure to file reply submissions as indicating that those submissions were not required. That being the case, the Commission was seized of the matter for determination on 28 July 2025.
[65] Given that I consider that the hearing had commenced, the Appellant cannot rely on r 18 of the Tribunals Rules as a source of power to amend the application.
[66] In any event, the Appellant has failed to comply with r 18 by failing to file an amended application which incorporates the amendments and by failing to comply with r 19 of the Tribunals Rules by not distinguishing the amendments from the original text as required by r 19 of the Tribunals Rules.
[67] As a consequence, I do not intend to allow the Appellant's application to amend the Form 4 Application in Existing Proceedings in reliance on rule 18 of the Tribunals Rules.
[68] I note that r 20(1) of the Tribunals Rules enables an applicant to seek leave to amend after an application has been started. Rule 20(2) notes that if the proposed amendments substantially alter the scope and nature of the claim, the applicant must file an amended application that incorporates the proposed amendments. The Appellant in any event, has also not complied with the requirements of r 20 of the Tribunals Rules.
[69] Whether the application for leave to amend was brought under either rule 18 or rule 20 of the Tribunals Rules, I consider that the Appellant has not established that this was an appropriate case for the exercise of a discretion in the Appellant's favour to allow the amendments proposed by the Appellant for the reasons that follow.
[70] Firstly, r 6 of the Tribunals Rules notes that the purpose of the rules is to provide for the just and expeditious disposition of the business of the Commission. The original Application in Existing Proceedings was filed on 7 May 2025. A number of directions orders had to be issued by the Commission, in part because of non-compliance by the Appellant with the original directions order dated 9 May 2025. It would not in my view be in the spirit of the just and expeditious disposition of the business of the Commission to allow the Appellant to amend the application to significantly broaden the scope of the stay sought after submissions had been received from the parties.
[71] Secondly, regarding the object of doing justice between the parties according to law, I consider that it would be unfair to the Respondent to allow the amendment sought by the Appellant in circumstances where the application had been on foot for some months and the Respondent had already provided its submissions to the Commission.
[72] Thirdly, if the amendments sought by the Appellant were allowed, to afford procedural fairness to both parties, further submissions would be required from the parties regarding whether the scope of the stay should be broadened to the extent requested by the Appellant. This would further delay the determination of the application (once again contrary to the requirement that the application be dealt with expeditiously) and involve the Respondent incurring further costs. It would also potentially delay the substantive appeal being finalised.
[73] Fourthly, the application had reached a point where the Commission could commence determining the matter. The application to amend was brought late and this is a factor which militates against allowing the amendments.
[74] Fifthly, I accept that the proposed amendments are important for the Appellant, however, via the amendments the Appellant seeks to delay not only the determination of the substantive public sector appeal but also the various interlocutory determinations that the Commission is required to make (arising from applications brought by the Appellant). Effectively, if the amendments were allowed and the stay application granted, the Commission would be in a state of paralysis dependent on external bodies making decisions prior to the Commission being able to exercise its statutory functions. I consider this also to be contrary to the requirement in r 6 of the Tribunals Rules that the application (and substantive appeal) be determined justly and expeditiously.
[75] Sixthly, the amendment application appears to have been made by the Appellant to try and address some of the difficulties with the application for a stay that were highlighted in the Respondent's submissions filed on 21 July 2025. I therefore have some concerns whether the application for amendment has been brought in good faith by the Appellant.
[76] Seventhly and finally, I consider that there is limited to no utility in allowing the amendments sought by the Appellant for the following reasons:
[77] In light of the above, the application for leave to amend the Application in Existing Proceedings dated 7 May 2025 is dismissed.
Legislative source of jurisdiction to make stay orders
[83] The Respondent in its submissions also contends that r 41 of the Tribunals Rules provides a source of power to grant a stay. Rule 41 enables the Court, Commission or Registrar to make a directions order about the conduct of a proceeding. In Perry v State of Queensland (Queensland Health) (No. 2),[21] Deputy President Merrell (sitting on the Industrial Court) confirmed that r 41 of the Tribunals Rules provided a discretionary power to adjourn an appeal.[22] In light of this, there would seem to be no reason why this would not extend to a discretionary power to grant a stay of a proceeding.
Principles governing the Commission's discretion to order a stay
[84] The Appellant relies upon the decisions of the Commission in Colebourne[23] and Grainey[24] as establishing the relevant principles to be applied by the Commission in deciding a stay application. Both of those matters involved an application pursuant to s 566 of the IR Act seeking a stay of a decision which was the subject of an appeal to the Commission.
[86] In Kelsey v Logan City Council & Ors (No.7)[25] ('Kelsey (No. 7)'), the Commission dealt with an application for a stay in circumstances where there were pending criminal proceedings. Vice President O'Connor held that the that the principles regarding the grant of a stay, as expounded by Wootten J in McMahon v Gould[26] ought to be applied.
[87] In the present case the Appellant does not rely upon pending criminal proceedings in another jurisdiction as the basis for the stay application, but does rely upon concurrent proceedings or processes taking place elsewhere to support the granting of a stay.
[88] Given this, I consider it is appropriate to follow the decision of Vice President O'Connor in Kelsey (No. 7) and to apply the principles identified in McMahon v Gould, but with those principles modified to take into account the absence of pending criminal proceedings and the fact that it is the Appellant (and not a Respondent) seeking a stay.
[89] I therefore consider that the following matters are relevant to the exercise of the Commission's discretion as to whether to grant a stay in the terms sought by the Appellant:
(a) Prima facie a party is entitled to have their matter heard tried in the ordinary course of the procedure and business of the Commission;
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(c) The burden is on the applicant for a stay to show that it is just and convenient that the other party's ordinary rights should be interfered with;
(d) Neither an applicant or a respondent are entitled as of right to have a proceeding in the Commission stayed because of a pending or possible proceeding in another jurisdiction;
(e) The Commission's task is one of 'the balancing of justice between the parties', taking account of all relevant factors;
(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.
(g) The effect on the other party must also be considered and weighed against the effect on the applicant for a stay.
[90] The consideration of an application to either dismiss or stay proceedings must involve careful and thorough consideration of the relative prejudice to each party, and the Commission ought to strive to achieve an outcome that best serves the interests of justice.[27]
Conclusion - the Applicant is not entitled to a stay
[91] Applying those principles to the present application, firstly, the Respondent is entitled to have the public sector appeal brought by the Appellant determined in the ordinary course of the Commission's business. Such an approach is consistent with the expectation that there will be a just and expeditious disposition of the Commission's business.[28]
[92] The Respondent submits that it is entitled to timely conclusion of the disciplinary process citing the decision of Deputy President Merrell in Perry v State of Queensland (Queensland Health) (No. 2).[29] In Perry, His Honour Merrell DP dealt with an appeal to the Industrial Court from a decision of the Commission dealing with a public sector appeal arising from a disciplinary process. His Honour stated:
[32] Secondly, I accept the Department's submission that there is a prejudice to it if the appeal is adjourned off to a date in respect of which Ms Perry may be able to secure legal representation. The Department is entitled to a timely conclusion of the disciplinary process against Ms Perry. As I understand the material before me, that process was formally commenced by it in March 2022.[30]
[93] Further, the Industrial Court and the Commission have confirmed that disciplinary proceedings in relation to public sector employees are for the protection of the public.[31] I therefore also consider that there is a public interest in ensuring that fair treatment appeals in relation to disciplinary finding decisions and appeals from disciplinary action decisions are heard expeditiously by the Commission.
[94] I consider that the factors nominated in paragraphs [91] to [93] militate against the exercise of a discretion in favour of the Appellant to grant a stay.
[95] For the reasons set out in the succeeding paragraphs, I am not satisfied that the Appellant has:
[96] Given that leave to amend the stay application has been refused, the most significant ground relied upon by the Appellant in the application and in their submissions is the purported PID that was lodged by the Appellant on 28 April 2025.
[97] In the Appellant's submissions filed on 14 July 2025, the Appellant submits that the PID was then 'currently under review (sic) a relevant proper authority' and was undetermined. The Appellant alleges that the PID traverses the identical factual matrix that underpins the substantive public sector appeal in PSA/2025/39.
[98] The Respondent in its submissions filed on 21 July 2025 confirms that on 13 June 2025 the Appellant received written notification of the outcome of the 28 April Disclosure. The Respondent goes on to submit that the written notification assessed the 28 April Disclosure (including three subsequent addenda and a grievance from the Appellant dated 24 May 2025) and determined that the 28 April Disclosure was not a PID as defined in the PID Act.[32]
[99] The Respondent further submits that on 22 June 2025, the Appellant sought internal review of the delegate's decision on the 28 April Disclosure. On 10 July 2025, the Appellant was notified of the outcome of the internal review application which confirmed the original assessment that the 28 April Disclosure was not a PID.[33]
[100] The Respondent concludes that given the 28 April Disclosure has been assessed and that assessment confirmed on internal review, there is no further utility to grant the orders sought in the paragraph A.2.(a) of the application, as the 14-day post-assessment timeframe has passed.[34]
[101] In their reply submissions the Appellant contends that the Respondent's submission that there is no utility in granting a stay because the 28 April Disclosure had been assessed, overlooks that on 29 July 2025, the Honourable Andrew Powell MP referred the matter to the Crime and Corruption Commission ('CCC'). I would note that those events all post-date the Respondent's submission being filed on 21 July 2025, therefore it is not possible for the Respondent to have overlooked something that had not yet occurred.
[102] The Appellant has not placed any further evidence before the Commission that confirms that the 28 April Disclosure has been accepted by some proper authority as being a PID.
[103] It is noted that the internal review decision[35] referred to by the Respondent in paragraphs [99] and [100] above, is now the subject of a further public sector appeal PSA/2025/153 which is at this time still to be determined, however, I have carriage of that appeal.
[104] That is also a public sector appeal, and therefore pursuant to s 562B of the IR Act, the jurisdiction to be exercised by the Commission is a review to determine whether the internal review decision is fair and reasonable. The review is not conducted as a hearing de novo, nor does the Commission stand in the shoes of the internal reviewer. The Commission in that appeal does not have jurisdiction to make a determination that the disclosure made by the Appellant was a PID. The Commission's jurisdiction is limited to determining whether the internal review decision was fair and reasonable.
[105] Given all of the matters considered above, I am not satisfied that the 28 April Disclosure provides a basis for the Appellant to be granted a stay which would have the effect of bringing all matters related to PSA/2025/39 to a halt for an indeterminate period of time.
[106] Further, even if it were the case that the 28 April Disclosure had been accepted by a proper authority as a PID, I consider there is force in the Respondent's submissions that this would not be a sufficient basis for the grant of a stay of PSA/2025/39.
[107] It appears that the Appellant significantly relies upon the potential or possibility of there being a risk of duplicative or inconsistent factual findings, which would undermine both statutory frameworks and erode the public confidence in their administration.
[108] The Respondent in reply to those contentions submits that there is no risk of 'duplicative' or 'inconsistent' findings and processes because the jurisdiction that the Commission holds in relation to a public sector appeal is to determine whether the disciplinary action decision was fair and reasonable based on evidence before the delegated decision-maker when the decision was made.[36] (Emphasis added.)
[109] It is further submitted by the Respondent that no disclosures purportedly under the PID Act were made by the Appellant, until after the disciplinary action decision was made. The Respondent contends that it is open to the Appellant to make submissions regarding the impugned actions of the Respondent (such as the alleged predetermination) in the substantive public sector appeal.
[110] The first observation that can be made is that if as I have found above, the 28 April Disclosure has not been at this time accepted by a proper authority as a PID, the Appellant's concerns regarding duplicative or inconsistent findings simply fall away as there is no risk of this occurring.
[111] Secondly, the Respondent is correct as to the nature of the Commission's statutory function in undertaking an external review in a public sector appeal. The Commission's jurisdiction is limited to undertaking a review of the disciplinary action decision to determine whether the decision is fair and reasonable.
[112] In undertaking that review, the Commission will review both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[37] The decision in question is the disciplinary action decision It is therefore likely that the issues to be considered by the Commission in determining the public sector appeal and the relevant tests to be applied will differ significantly from those being considered by a proper authority assessing the PID.
[113] Thirdly, any findings made by some other decision-maker, potentially on different evidence and involving different tests in a different statutory environment will not be binding on the Commission, and the risk that there may be some conflicting factual findings in these circumstances in my view cannot provide a sound basis for a stay of PSA/2025/39 being granted by the Commission.
[114] Fourthly, the Respondent is also correct that the Appellant will not be prevented from raising any process or procedural defects in the investigation or disciplinary process as part of their grounds for submitting that the disciplinary action decision was not fair and reasonable.
[115] As a consequence, in undertaking the task of 'the balancing of justice between the parties', taking into account all relevant factors, I consider that the Commission's discretion should be exercised in favour of refusing the application for a stay. In making that finding I rely upon, and give weight to:
[116] Taking all of those matters into account, in my view there is no basis for the Commission to grant a stay to the Appellant.
[117] In the attachment to the Form 4 Application, the Appellant relies upon nine grounds in support of the stay application.
[118] I consider that Grounds 1, 5, 6, 7 and 8 have been sufficiently addressed in the reasons set out above.
[119] In Ground 2, the Appellant alleges some misrepresentation by the Respondent in an earlier submission of the Respondent dated 28 March 2025. The Appellant submits that the deliberate suppression of the Strive referral and its contents infected the appellant record with factual error, vitiates the proceeding with jurisdictional error and gives rise to a reasonable apprehension of bias.
[120] Firstly, how the Strive referral should be characterised will ultimately be a matter for the Commission to determine as part of its consideration of the appeal. Even if the Appellant is correct that there was some misrepresentation by the Respondent in its earlier submissions (which is not a matter I have to determine at this time), it would not in my view constitute a basis for a stay being granted.
[121] Secondly, the Appellant's submission regarding the deliberate suppression of the Strive referral is somewhat difficult to understand in circumstances where the Appellant sought disclosure of the Strive referral and this was provided to them.
[122] I am not satisfied that the Appellant has established a basis for the granting of a stay in reliance on Ground 2.
[123] Ground 3 relates to an alleged incomplete, erroneous and defective appeal record with reference to the Strive referral. Ground 9 alleges predetermination and procedural non-compliance. Once again these grounds are difficult to understand in circumstances where the Appellant now has the Strive referral, and it will form part of the evidence to be considered by the Commission in determining the appeal. Nothing will prevent the Appellant from pursuing their contentions that there was some form of pre-determination as to the outcome of the investigation and as a consequence procedural non-compliance. In my view Grounds 3 and 9 do not establish a basis for the granting of a stay.
[124] Ground 4 alleges that late disclosure thwarted earlier resort to the PID regime. The Appellant contends that a stay is essential to ensure the Commission determines the appeal on a complete and accurate record once the PID is determined. This ground has been effectively addressed earlier in these reasons.
[125] Further, as noted above, the Appellant has filed an application seeking disclosure of documents which remains to be determined by the Commission. The Appellant has not established a basis for the grant of a stay in reliance on Ground 4.
[126] In my view the Commission's discretion should be exercised in favour of refusing the application for a stay of these proceedings. On balance, the prejudice to the Respondent outweighs any potential prejudice to the Appellant. Accordingly, the stay application should be dismissed.
[1] A decision in relation to the suppression application was released on 16 September 2025 - see XY v State of Queensland (Department of AB) [2025] QIRC 248.
[2] Appellant's submissions filed 14 July 2025, page 2, [1].
[3] Appellant's affidavit filed on 7 May 2025, Exhibit PA-2.
[4] [2021] QIRC 380, 'Colebourne'.
[5] [2022] QIRC 301, 'Grainey'.
[6] The Appellant cites sections 31 and 58(1)(a) of the Human Rights Act 2019 (Qld) which the Appellant contends obligates the Commission to conduct a fair hearing and to refrain from acting incompatibly with that right.
[9] Section 562B(4)(a) of the IR Act.
[10] Further Directions Order [3] dated 9 May 2025.
[11] Further Directions Order [4] and Amended Further Directions Order [4] both dated 13 June 2025.
[12] Further Directions Order [6] dated 2 July 2025.
[13] [2021] QIRC 278, [25] (Merrell DP).
[14] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ('Aon'), [30] (French CJ).
[15] Ibid [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[18] Aon (n 4) [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[20] Kelsey v Logan City Council & Ors (No.7) [2019] QIRC 085, [22] (O'Connor VP). See also Robertson v McDonald's Australia Limited [2021] QIRC 344, [36], [38] (Dwyer IC); DR v IU & Ors [2023] QIRC 251, [12] - [16] (Dwyer IC).
[23] Colebourne v State of Queensland [2021] QIRC 380.
[24] Grainey v State of Queensland [2022] QIRC 301.
[25] [2019] QIRC 085, [19] (O'Connor VP).
[26] (1982) 7 ACLR 202, 206.
[27] Robertson v McDonald's Australia Limited [2021] QIRC 344, [36] - [39] (Dwyer IC).
[31] See: Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President); Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 327, T 1-10, ll. 35-39 (Merrell DP).
[35] The decision of Ms Patricia O'Callaghan, Director-General dated 10 July 2025.
[36] Section 562B(4)(a) of the IR Act.
[37] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [23] (Merrell DP) citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
XY
State of Queensland
(2009) 239 CLR 175