Collett v State of Queensland (Queensland Health) [2026] QIRC 84

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Collett v State of Queensland (Queensland Health) [2026] QIRC 084 PARTIES: Collett, Diane (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2025/123 & B/2026/46 PROCEEDING: Public Sector Appeal – Fair Treatment Decision – Application to re-open proceedings DELIVERED ON: 7 July 2026 MEMBER: HEARD AT: Pratt IC On the papers ORDERS: 1. The application to re-open the proceedings is granted. 2. The earlier version of this decision is corrected pursuant to s 539(e) of the Industrial Relations Act 2016 (Qld) in accordance with the terms of this decision. 3. The appeal is allowed. 4. The decision directing Ms Collett to attend an examination by a psychologist is set aside. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – JUDGEMENTS AND ORDERS – GENERAL APPLICATION TO RE-OPEN PROCEEDINGS – appeal of a fair -- 1 of 15 -- 2 treatment decision – where the respondent directed the appellant to be examined by a specialist neuropsychologist pursuant to s 104 of the Public Sector Act 2022 (Qld) – where appellant claims the respondent cannot direct her to attend an examination conducted by a psychologist because the definition of 'doctor' does not include 'psychologist' – consideration of the definition of 'doctor' and 'medical practitioner' – application to re-open proceedings after commission identified error or defect in the decision withdrawing the decision shortly after release – consideration of powers incidental to exercise of jurisdiction to correct substantive errors or defects in decisions – found that application to re-open should be granted to correct a substantive error in the earlier decision and prevent an injustice – found in reversing the original decision by way of correcting a substantive error within it that the respondent's decision directing a medical examination be carried out by a psychologist was not fair and reasonable on the basis that it appointed a person to conduct the examination who was not a 'medical practitioner' registered with the Medical Board of Australia – appeal allowed LEGISLATION: Acts Interpretation Act 1954 (Qld) sch 1 Health Practitioner Regulation National Law Act 2009 (Qld) sch 4 Health Practitioner Regulation National Law (Queensland) s 5, s 38 Industrial Relations Act 2016 (Qld) s 539 Public Sector Act 2022 (Qld) s 103, s 104 -- 2 of 15 -- 3 CASES: Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 Burrell v R (2008) 238 CLR 218 Commissioner for Government Transport v Royall (1966) 116 CLR 314 Fowler v Workers' Compensation Regulator [2019] QIRC 149 Hitchcock v State of Queensland (Office of Industrial Relations) (No 5) [2024] QIRC 276 Moir v Q-COMP (No 2) [2012] QIRC 64 Neil v Lee (No 2) [2024] QIRC 149 R v Darling Island Stevedoring & Lighterage Co; Ex parte Halliday and Sullivan (1938) 60 CLR 601 Ray and Sue Boundy Pty Ltd v Gwydir [1999] ICQ 62 (1999) 162 QGIG 191 Reid v Brett [2005] VSC 18 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Uy v St Vincent's Private Hospital Northside [2025] QIRC 44 -- 3 of 15 -- 4 Reasons for Decision [1] This is an amended decision, correcting a substantive error in the original decision. As part of that process of correcting the error, the parties were invited to make submissions on the power to amend a substantive error, whether the matter should be reopened and if so, whether the error should be corrected even if it means reversing the original decision. [2] Ms Diane Collett is the Appellant in this matter. Ms Collett is employed by the Respondent, the Gold Coast Hospital and Health Service ('the Service'), as an AO3 Roster Support Officer at the Carrara Health Precinct. [3] On 1 April 2025, Ms Collett attended an independent medical examination ('IME') as directed by the Service. She was examined by Dr Richard White who is a consultant neurologist and who produced an IME report on 10 April 2025. [4] In Dr White's report, in response to the question about which duties Ms Collett is unable to perform and why, Dr White relevantly advised that Ms Collett would '… need full neuropsycometry to really answer this question.' [5] Accordingly, the Service directed Ms Collett to attend an IME by specialist neuropsychologist, Mr Peter Perros, who would conduct neuropsychological testing and provide an IME report to the Service. What is the issue? [6] The sole issue in this appeal, as Ms Collett has identified, is not whether the Service can direct her to attend an IME pursuant to ss 103 and 104 of the Public Sector Act 2022 (Qld) ('PS Act'). Rather, it is specifically in relation to whether the Service can direct that an IME be carried out by a psychologist. [7] The Service argues that a psychologist can conduct an IME. Ms Collett argues that a psychologist cannot conduct an IME, as opposed to a psychiatrist or a neurologist who are 'doctors' by definition. Why is it said that a psychologist cannot conduct an IME? [8] Ms Collett's submission, and indeed the basis of this appeal, is a short point. That is, that the power to direct her to attend an IME within s 104 of the PS Act specifically refers to appointing a 'doctor' to examine the employee and provide a written report of the examination. Ms Collett argues that a neuropsychologist is not a doctor or medical practitioner for the purposes of being appointed to conduct an IME pursuant to s 104 of the PS Act. [9] Ms Collett relies on the publication, Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland -- 4 of 15 -- 5 Public sector,1 ('the Guide'). Pursuant to the Guide, Ms Collett submits that only a 'medical practitioner', by definition, can be appointed to examine an employee. Ms Collett refers to the glossary of the Guide and argues that it defines medical practitioners pursuant to a list of specialist medical practitioners. That list, Ms Collett argues, contains psychiatrists, occupational physicians, orthopaedic surgeons, rheumatologists, neurologists and neurosurgeons. The point Ms Collett makes is that a psychologist, even one specialising in neuropsychology, is not on that list and therefore is not a 'doctor' pursuant to the Guide. Can Ms Collett be directed to attend an IME carried out by a neuropsychologist? [10] The Guide states at cl 1.1, that chief executives of public sector entities must consider it when considering and directing an employee to submit to a medical examination and when making any decision about action to be taken following a medical examination. [11] The Guide refers to choosing an appropriate examining 'doctor' and that word is defined in the glossary. The glossary defines 'doctor' as:2 'medical practitioner' registered under the Health Practitioner Regulation National Law to practice in the medical profession (other than a student). [12] Within the glossary, the Medical Board of Australia is stated to be the body which defines the scope of 'specialist medical practitioners'. The Guide very clearly says that '… only people who practice as one of these types of specialist medical practitioners may be appointed to examine an employee.' [13] When one refers to the Health Practitioner Regulation National Law Act 2009 (Qld) ('National Law'), it provides, at Schedule 4, the detail of the legislative provisions that were introduced to bring uniformity to the way in which health practitioners are trained, registered and accredited in Australia. In that schedule there are definitions, including a definition for 'medical practitioner':3 "medical practitioner" means a person who is registered under this Law in the medical profession. [14] However, there is no definition in the National Law for the 'medical profession'. [15] The Health Practitioner Regulation National Law (Queensland) ('HPRNL Qld') is a different but related piece of legislation that contains the machinery provisions for establishing, pursuant to Queensland law, a registration and accreditation scheme for the more broadly defined health practitioners (within which 'medical practitioners' are a category) and students. It provides for the establishment, membership and functions of national boards, including, at s 38 of the HPRNL Qld, the obligation to develop standards for registration and scope of practice for various members of the profession. At s 5 of the 1 Queensland Government, Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland public sector (2024). 2 Ibid. 3 Health Practitioner Regulation National Law Act 2009 (Qld) s 5. -- 5 of 15 -- 6 HPRNL Qld, the term 'medical practitioner' is defined similarly to how it is defined in the Guide: a person who is registered under this Law in the medical profession. [16] The term 'medical profession' is not defined in the HPRNL Qld either. [17] The PS Act does not define the term 'doctor', which is the word used in s 104 of that Act. The Acts Interpretation Act 1954 (Qld) ('Acts Interpretation Act') does define 'doctor' at Schedule 1: doctor means medical practitioner. [18] In that same schedule, the Acts Interpretation Act defines medical practitioner: medical practitioner means a person registered under the Health Practitioner Regulation National Law to practice in the medical profession, other than as a student. [19] As noted above, there is no definition of the 'medical profession' within the National Law or the HPRNL Qld. No definition for the 'medical profession' exists in the Guide, the PS Act or the Acts Interpretation Act either. It is something that is left to the Medical Board of Australia ('MBA') to define. In simple terms, it does so by way of who it deems qualified to practice under certain levels of registration. The HPRNL Qld provides a framework of levels of registration such as general, specialist, limited, provisional, etc. [20] Absent a precise statutory definition for the 'medical profession', one could perhaps fashion a definition by perusing the various specialties within the numerous categories of practice published by the MBA. Such an exercise is not necessary and probably not even useful in this case because, clearly, a psychologist is not someone who has been registered to practice as a 'medical practitioner'. That is an altogether different class of registration to practice in the more broadly defined (in the National Law) class of 'health profession' (as opposed to the 'medical profession'). [21] By way of contrast, to be registered as a 'medical practitioner', the process is governed by the MBA. The person must have completed the required university degree in medicine and surgery as well as an approved internship and comply with other requirements not relevant to this discussion. Conversely, for registration as a psychologist, the process bears some resemblance, but it is not the same. Various pathways of degree qualification and training are set, and the process is governed by the Psychology Board of Australia (which is the National Board for the psychology profession established under the HPRNL Qld), not the MBA. [22] Coming back to the Guide, it contains a link to the term 'specialist medical practitioner', which the Guide says is the only level of practitioner that can be appointed to examine a person. That link takes one to a webpage published by the MBA, which says: 4 Specialist registration is available to medical practitioners who: 4 'Specialist registration', Medical Board Ahpra (Web Page, 14 May 2026) <https://www.medicalboard.gov.au/Registration/Types/Specialist-Registration.aspx>. -- 6 of 15 -- 7 • have an approved qualification for specialist registration (fellowship of an AMC- accredited specialist medical college) • are a specialist international medical graduate (SIMG) whose specialist medical qualification is on the Expedited Specialist pathway: accepted qualifications list • have been assessed by an AMC-accredited specialist medical college as being eligible for fellowship (fellowship is not a pre-requisite for specialist registration). The Board publishes a List of specialties, fields of specialty practice and related specialist titles approved by Ministerial Council for the medical profession. Medical practitioners with the necessary qualifications in an approved specialty, who meet other registration requirements, are included on the Specialists Register and their specialist title is protected by law. The Board’s Registration standard: Specialist registration sets out the requirements for specialist registration. [23] The Guide thus sets a higher bar to appointing a person to conduct an IME than the PS Act does in my opinion. Under the PS Act, the examiner must be a 'doctor'. That is defined as a person registered to practice in the 'medical profession' under the National Law. That means a person with at least general registration to practice in the medical profession as deemed by the MBA. It also includes a person with higher qualifications who is granted a particular form of specialist registration by the MBA. In the Guide however, the stipulation is the higher one. The Guide says that only a 'specialist medical practitioner' who is registered pursuant to the MBA's various processes for registration in a specialty can be appointed to examine a person by way of an IME. [24] That distinction is somewhat academic when one considers that the issue Ms Collett is taking is that a psychologist cannot be appointed to examine her because they are neither a general doctor nor a specialist doctor. For the reasons set out above, I conclude that Ms Collett's submission must be accepted. Regardless of whether the PS Act (any doctor) or the Guide (only specialist doctors) is the minimum standard, a psychologist is clearly neither. New IME or part of the Dr White's IME? [25] Dr White has carried out an IME and Ms Collett does not take issue with that in this appeal. Ms Collett, in her submissions, refers to the Direction to attend on Dr White as being the 'second direction'. That is because the first one was rescinded for reasons that are not relevant. However, the Service describes that as the 'first direction'. For clarity, this was the direction to attend an IME with Dr White issued by letter dated 17 December 2024 (although Ms Collett refers to it as being 20 December 2024). Given that confusion in referring to this direction, it seems appropriate that simply refer to this as the 'Dr White IME direction'. [26] The direction that is before me under appeal was that which required Ms Collett to attend an IME to be conducted by Mr Perros. That direction was issued on 9 June 2025, the Service says. Ms Collett says in her submissions that it was issued on 10 June 2025, -- 7 of 15 -- 8 although the materials provided state clearly that it was issued on 9 June 2025. The Service refers to this as the 'second direction' whereas Mr Collett refers to it as the 'IME direction three'. I will refer to it as the 'Mr Perros IME direction'. [27] In a further round of submissions that I invited the parties to put on (discussed below), the Service argued that the Commission was required to determine whether the Mr Perros IME direction was made within power not just because the Service was able to send Ms Collett to an IME by a neuropsychologist but also whether this direction was simply an examination for the purposes of 'testing'. The Service also argued that the Commission was required to consider and determine whether, if the Mr Perros IME direction was not made within power, it was still a lawful and reasonable direction with which Ms Colette must comply. The Service submitted that if the Commission were minded to reopen the matter to address the error, it seeks these arguments to be more specifically addressed. [28] The Service submits that the doctor appointed to conduct the IME (i.e. Dr White) is required to comply with obligations that include ordering any testing, such as imaging or what the Service proposes Mr Perros will do. It says that it can be inferred from Dr White's report that he intended to consider further information such as the sort of testing the Service has directed Ms Collett to have carried out by Mr Perros. [29] In the alternative, the Service argues that there is an implied term at common law in the employment relationship obliging Ms Colette to comply with the direction to attend on and be examined by Mr Perros and agree to Mr Perros. [30] The Mr Perros IME direction relevantly says: Key points: 1. You are directed to attend an Independent Medical Examination. 2. The Independent Medical Examination is with Mr Peter Perros, a Specialist Neuropsychologist… 3. Mr Perros will provide their opinion by way of a Medical Examination Report, following your examination. [31] The Mr Perros IME direction also relevantly says: You are directed to attend an independent medical examination (IME) with Mr Peter Perros, a Specialist Neuropsychologist (the Direction). [32] It goes on to say: You are required to actively participate in the medical examination, co-operate with Mr Perros, and provide honest answers in response to any questions asked by Mr Perros, regarding your relevant medical history. [33] Having regard to the phrasing of the Mr Perros IME direction, I do not accept that there is any element to it that made it something that was simply a part of the Dr White IME process. It is not as though Dr White ordered some images to be taken of Ms Collette or some blood tests to be carried out as part of his examination and report as the Service -- 8 of 15 -- 9 suggests. I accept that those sample taking, testing and imaging procedures will come with a report. But it is clear to me that what the Service was directing Ms Collette to undertake was a separate IME carried out by Mr Perros. The Mr Perros IME direction states that very clearly – that it is an IME to be carried out by Mr Perros. On my reading of the relevant part of Dr White's report, he is simply saying that this information is something he does not have and how it might be obtained. [34] It seems to me to be an unnatural gloss of the facts to suggest the Mr Perros IME direction was not a standalone IME direction, but rather, some sort of continuation of, or part of, the process carried out by Dr White. I therefore reject the submission that the Mr Perros IME direction was simply a testing phase of the Dr White IME direction. [35] As to whether there is a common law obligation implied into the contract of employment, the Service argues that the lawfulness of the Mr Perros IME direction does not depend on it being supported by positive rule of law, but rather, that it only be not unlawful. It argues that there is an implied term in every employment relationship that the employee must obey any direction by an employer that is not unlawful in the sense that the direction is not prohibited by any law and which falls within the scope of the employment relationship.5 [36] I accept that a duty might be implied into the relevant contract of employment such that obliged Ms Collett to comply with a direction that is lawful (and reasonable). However, the test in this appeal is whether the decision was fair and reasonable within the plain meaning of that phrase. As I have found above, under the PS Act, the examiner appointed to conduct an IME must be a 'doctor'. Leaving to one side the Guide, the statutory minimum for appointments to conduct an IME is that the practitioner be a doctor. Mr Perros was not a doctor. I do not therefore accept that the Mr Perros IME direction was lawful. That is because it was clearly at odds with the minimum requirement to appoint no less a qualified practitioner than a doctor to conduct the IME under s 104 of the PS Act. [37] As well, in relation to the Guide, I am influenced by the observations of Gleeson CJ in Lam:6 …when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. [38] One might argue about how binding the Guide is when it says that chief executives of public sector entities must consider the Guide when considering and directing an employee to submit to a medical examination and when making any decision about action to be taken following a medical examination. The argument being that consideration of the Guide does not amount to being bound to follow it. 5 Citing R v Darling Island Stevedoring & Lighterage Co; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-622; Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 324. "If [the employee] was given a lawful order to carry out her duties, she was in the circumstances obliged to comply…" 6 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 [33]. -- 9 of 15 -- 10 [39] In my opinion, the Guide is clearly something that regard must be had to when deciding an IME. It is not law, but it is, I find, a clear statement by the Queensland Government of a standard or procedure which is to be followed and to which entities such as the Service are to adhere when carrying out IME directions. [40] In my view, borrowing from his Honour's observations in Lam noted above, fairness would dictate that the Service should be held to the promise to consider the Guide and follow it. No sufficient reason has been proffered as to why this case could be said to have fairly and reasonably amounted to a reason for departing from the standard set in the Guide. That is, as I have found above, that no less than a specialist medical practitioner may be appointed to conduct an IME under the Guide. Mr Perros was not a specialist medical practitioner. Conclusions – the decision was not fair and reasonable [41] I conclude that a psychologist is not a 'doctor' for the purposes of the PS Act because they are a 'health practitioner' not a 'medical practitioner'. Only the latter can be appointed to conduct an IME under the PS Act. [42] The decision to appoint a psychologist to examine Ms Collett, which I find was a separate decision and not part of the Dr White IME process, was at odds with the PS Act and the Guide. I find that the Guide was something the Service was obliged to follow when making the decision. The decision was not fair and reasonable because, in my opinion, it was at odds with the Guide and not lawful because it was at odds with the PS Act. I therefore order that the decision be set aside. Correction to earlier version of this decision What was the issue that arose? [43] As mentioned in my opening remarks, this decision is a correction to a substantive error in the earlier version of it. Upon release to the parties of the earlier version of this decision, it came to my attention that an error was present in the reasoning. Stated simply, I considered that my reasoning had mistaken the definition of a health practitioner for that of a medical practitioner and the decision was therefore wrong. [44] Upon discovering the error, I directed that the first version of this decision not be published. I immediately called the matter on for a hearing. At that hearing I explained to the parties, who had the first version of the decision in hand, what I believed the error was. I invited them to make further submissions in writing after considering my concerns. Both Ms Collett and the Service filed further submissions. Ms Collett also accepted the Service's argument that an application to reopen the proceedings was warranted because the decision had been delivered, albeit recalled and further submissions invited. [45] Essentially, Ms Collett argues that the proceedings should be reopened and that a power exists to correct the decision within s 539(e) of the Industrial Relations Act 2016 (Qld) ('IR Act'). -- 10 of 15 -- 11 [46] The Service argues that the proceedings should not be reopened and that the error cannot be corrected, other than by way of an appeal should Ms Collett wish to do so. The Service argues that the 'slip rule' cannot accommodate such a substantive amendment to a decision, even if the parties have been afforded the opportunity to make submissions on it as they have here. What is the correct approach for correcting errors? [47] The argument before me is whether s 539(e) of the IR Act allows the Commission to do anything more than correct formal errors in decisions issued such as paragraph numbering, dates, names, etc. [48] Section 539(e) of the IR Act clearly contains a broad power for the Commission to correct errors in proceedings. On its face, the words of that provision clearly state that the nature of the error that may be corrected in a decision can be substantive or formal. [49] In construing the meaning of s 539(e), I have sought to apply the natural and ordinary meaning of the words of s 539 when read as a whole. I have also considered s 539(e) in its proper context, which includes consideration of the IR Act as a whole. I am mindful that the purpose of s 539(e) is a key consideration.7 I am also aware that the meaning I arrived at must be reasonably open on the natural and ordinary meaning of the words when they are read in the context in which they appear.8 [50] In my view, the power the Legislature has set out in s 539(e) of the IR Act should not be confused with the common law concept of the 'slip rule' that is applied by courts. That is even though the power in s 539(e) has been referred to as a slip rule of sorts. The power within s 539(e) is far broader than the common law slip rule in my opinion. That is because s 539(e) is an express statutory power allowing the Commission to correct errors in proceedings that are not just formal but also those that are 'substantive'. The Macquarie Dictionary defines 'substantive' (law) as:9 Relating to rules of right which courts are called on to apply, as distinguished from rules of procedure (my emphasis). [51] In my opinion the discretionary power within s 539(e) operates not only in cases of correcting a formal error, which include a rule of procedure, but also in cases of correcting a substantive error, which concerns the rights of which the Commission is called on to apply. The common law slip rule has a much narrower scope as the 7 Herzfeld & Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [1.150] ('Interpretation'). 8 Ibid [1.160], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305 (Gibbs CJ), 320 (Mason and Wilson JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ), [76], [79]– [80] (Gageler J); Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551, [52] (Kiefel CJ, Keene, Nettle and Edelman JJ); Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575, [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J agreeing). 9 Macquarie Dictionary (online at 1 July 2026) 'substantive'. -- 11 of 15 -- 12 judgements in Burrell v R10 and Smith v NSW Bar Association11that the Service relies on demonstrate. [52] I therefore do not accept the Service's submissions that in the absence of the words 'judgment' or 'orders', the Commission's power in s 539(e) is limited to only correcting errors that do not affect the finality of a matter. That might be so if the Commission was bound by the common law slip rule. It is not in my opinion. The Legislature has seen fit to furnish the Commission with a much broader power in s 539(e) than that found within the common law slip rule. [53] The Service's interpretation of s 539(e) would mean that the Commission is restricted to correcting 'formal' errors only. I do not accept that s 539(e) should be construed so narrowly. Doing so would mean the word 'substantive' as it appears within s 539(e) has no work to do. [54] In Gwydir, his Honour, Hall P, referred to this power as 'the slip rule' but was not asked to consider whether the power went beyond merely formal amendments, observing its presence in the IR Act and its predecessor Act for many years.12 In Moir,13 Fisher C exercised the discretion to correct a decision that had initially dismissed an appeal such that the correction allowed the appeal due to an oversight in the drafting of the original decision. That exercise was well beyond a correction of a mere formality in the decision. In Moir, Fisher C cited and followed his Honour, Hall P's decision in Gwydir, 14 wherein his Honour considered and corrected a decision that was initially silent on the matter of costs, which the parties had addressed the Commission on. His Honour held that the circumstances enlivened the discretion and that a correction was an appropriate exercise of the discretion, giving consideration to and ordering costs by way of correction to the earlier decision. That too was a clear exercise of the statutory power to correct more than a mere formality in a decision in my opinion. [55] I do not therefore accept the Service's submissions that the Commission is bound by the same slip rule as referred to in cases such as Burrell v R15 or Smith v NSW Bar Association.16 Section 539(e) is a far broader power than that within the common law slip rule in my opinion. Does the matter need to be re-opened? [56] This is clearly a case where the decision was delivered. However, the clear purpose of s 539(e) includes amending errors or defects, etc in 'proceedings'. The provisions of s 539 do not expressly say that the Commission may act without consideration of whether to re-open the matter where the proceedings have concluded, which is what happens when a decision is delivered. With that in mind, and the observations of her Honour, Hartigan 10 (2008) 238 CLR 218. 11 [1992] HCA 36. 12 Ray and Sue Boundy Pty Ltd v Gwydir [1999] ICQ 62 (1999) 162 QGIG 191. 13 Moir v Q-COMP (No 2) [2012] QIRC 64. 14 (1999) 162 QGIG 19. 15 (2008) 238 CLR 218. 16 [1992] HCA 36. -- 12 of 15 -- 13 DP in Hitchcock17 and O'Neill IC in Uy18 as to whether such errors can be amended without considering the use of the power to re-open proceedings, it is my opinion that consideration should be had to whether the matter should be re-opened. Ms Collett has, as noted above, made a formal application to re-open the proceedings. Why the matter should be re-opened [57] In Neil (No 2),19 his Honour, Merrell DP, observed that the combined effect of s 484 (1) and s 485(b) of the IR Act allows for re-opening of proceedings. In that case the decision had been published on the Supreme Court website. His Honour noted an earlier case of Fowler,20 where the decision had been released but not published, and concluded that the considerations over whether to re-open a case were not impacted by whether the decision had been released but not published or had been released and published to the Supreme Court website. 21 [58] His Honour applied a test in Fowler, which has been followed since:22 (a) first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application; (b) second, in Smith v New South Wales Bar Association,23 the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side; (c) third, in Reid v Brett,24 the criteria governing the exercise of the discretionary power to reopen the case to admit further evidence where a hearing has concluded, but judgement has not been delivered, was said to be: (i) the further evidence is so material that the interests of justice require its admission; (ii) the further evidence, if accepted, would most probably affect the result of the case; (iii) the further evidence could not by reasonable diligence have been discovered earlier; and (iv) no prejudice would ensue to the other party by reason of the late admission of the further evidence. (d) fourth, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation, 17 Hitchcock v State of Queensland (Office of Industrial Relations) (No 5) [2024] QIRC 276 [81]-[83]. 18 Uy v St Vincent's Private Hospital Northside [2025] QIRC 44. 19 Neil v Lee (No 2) [2024] QIRC 149 ('Neil (No 2)'). 20 Fowler v Workers' Compensation Regulator [2019] QIRC 149. 21 Neil (No 2) (n 19) [4]. 22 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223. 23 [1992] HCA 36; (1992) 176 CLR 256. 24 [2005] VSC 18. -- 13 of 15 -- 14 cannot always be measured in terms of money or cured by an order for costs; and (e) finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants. [59] Whether the justice of the case warrants a re-opening is a key consideration. In this case, I think it does because I have, and the parties seem not to disagree, identified a clear and material error in the reasoning of the earlier decision that if left unaddressed, will result in an injustice to Ms Collett. That injustice arises because the earlier decision found that the Mr Perros IME direction was a lawful one that was fair and reasonable in the circumstances. As I have found above, that is plainly wrong due to the confusing of the definitions of medical practitioner and health practitioner. [60] True, the Service will suffer some prejudice in having to put on further submissions, which it has done, and this is not the ideal finality of litigation. Against that I weigh the injustice noted above and the fact that very little time has elapsed. As well, this is not a case where witnesses need to be recalled, or cases need to be repleaded. It is a public service appeal conducted on the papers. The issue presented to the parties for re-opening is a narrow one as I have identified earlier. It is a discrete point about whether there is an error, and if so (which appears to not be challenged), should it be corrected after hearing from the parties. I do not consider that to be a substantial prejudice to the Service in the circumstances. [61] Simply leaving Ms Collett to deal with an obvious and material error in a decision by way of an appeal in circumstances like these also seems to me to be at odds with the obligation upon the Commission within s 447(2)(b) of the IR Act. That obligation is to perform the Commission's functions in a way that avoids unnecessary technicalities and facilitates fair and practical conduct of proceedings under the IR Act. [62] This correction process has been at the initiative of the Commission. The error is material in that once it has been corrected there has been a direct impact on the outcome. The correction has effectively reversed the original decision which dismissed the appeal. The error was not of either party's doing. If left uncorrected, the situation would be grossly unfair to Ms Collett in my opinion. This situation seems to me to be precisely the sort of thing that s 539(e) has been cast by the Legislature to address. That is along with the power to reopen proceedings where appropriate and the obligation on the Commission to perform its functions in a way that avoids unecessary technicalities and facilitates fair and practical conduct of proceedings under the IR Act. It would not be appropriate that the Commission simply leave the burden of correcting such a material error up to one of the parties by lodging an appeal. There is no guarantee that a party would take the matter up on appeal. -- 14 of 15 -- 15 Conclusions – re-opening [63] For the foregoing reasons, I conclude that the proceedings should be re-opened so that the error within the earlier version of this decision can be corrected. The manner of that correction should be as I have set out above. Orders 1. The application to re-open the proceedings is granted. 2. The earlier version of this decision is corrected pursuant to s 539(e) of the Industrial Relations Act 2016 (Qld) in accordance with the terms of this decision. 3. The appeal is allowed. 4. The decision directing Ms Collett to attend an examination by a psychologist is set aside. -- 15 of 15 --