Buckley v State of Queensland (Queensland Police Service) [2026] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Buckley v State of Queensland (Queensland Police Service) [2026] QIRC 167 PARTIES: Buckley, Michelle (Applicant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: B/2025/73 PROCEEDING: Application for leave to proceed under r 230 of the Industrial Relations (Tribunal) Rules 2011 (Qld) to re-open TD/2020/61 DELIVERED ON: 15 May 2026 HEARD/HEARING DATE: On the papers MEMBER: HEARD AT: O'Connor VP On the papers ORDER: 1. Pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 (Qld) leave to proceed in TD/2020/61 is refused. CATCHWORDS: INDUSTRIAL LAW – where application lapsed pursuant to s 318(4)A of the Industrial Relations Act 2016 (Qld) – where a party may only take further action on the application with an order of the court - whether or not the interests of justice are better served by allowing or rejecting the application – representational error - whether there were -- 1 of 19 -- 2 steps taken in the proceeding – whether there was an explanation for the circumstances of the delay – whether prejudice would be suffered or likely to be suffered by another party to the proceedings if the application starting the proceeding is not struck out – where application for leave to proceed with application is refused. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) ss 3, 318, 484, 541 Industrial Relations (Tribunal) Rules 2011 rr 5, 6 ,230 Basha v Basha [2010] QCA 123 Bell v Simon Blackwood (Workers' Compensation Regulator) [200] QIRC 37 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Clark v Ringwood Private Hospital (1997) 74 IR 413 Dempsey v Dorber [1990] 1 Qd R 418 Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 Jordan v Multiplex Australasia Pty Ltd [2004] FWCFB 440 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 -- 2 of 19 -- 3 Mathiesen v Lawson [2018] QSC 154 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell [2002] 1 Qd R 647 Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914 Reasons for Decision [1] Michelle Buckley ('the applicant') by way of application dated 19 August 2025 seeks to have their application for reinstatement TD/2020/61 ('the Application') reopened pursuant to s 484(c) of the Industrial Relations Act 2016 ('the IR Act'). [2] The applicant posits that the Queensland Industrial Relations Commission ('the Commission') has the power to re-open proceedings pursuant to s 484(1)(b) of the IR Act.1 [3] The applicant contends that the application lapsed due to the failure of their legal representative to take necessary steps in having the matter heard. Background [4] The applicant was dismissed from her employment with the Queensland Police Service ('QPS') ('the respondent') on 20 May 2020. [5] On 11 June 2020 a notice of appeal was filed in the Court Registry under the erroneous belief it was the correct form. [6] The Application dated 15 June 2020 was filed in the Industrial Registry on 17 June 2020 detailing the reasons for the application being filed out of time. [7] The grounds for filing out of time were said to be: 1 Application to re-open filed 19 August 2025. -- 3 of 19 -- 4 I caused a Form 88 - Appeal Notice, to be filed by email in the Court Registry on Thursday 11/06/20, believing it was the correct form to file. I was subsequently made aware via the Court Registry on 11/06/20 that the correct form to use was a Form 12 - Application for Reinstatement. My Solicitor was only able to complete the Form 12 - Application for Reinstatement together with all other associated forms, by Monday 15/06/20.2 [8] The Application was accompanied by a Form 34 – lawyer's notice of address for service dated 15 June 2020. [9] A Directions Order dated 17 June 2020 required the employer to file a Form 12A Response within 7 days. [10] The respondent filed a response on 24 June 2020 and did not indicate jurisdictional objection. [11] The applicant's legal representative, Mr Habib Abraham Mellick Jnr did not provide the applicant with a copy of the Form 12A filed by the respondent. The applicant only became aware of the document's existence and content on 18 June 2025 when she obtained a full copy of all documents relating to the Application from the Commission. This followed multiple unsuccessful attempts to obtain updates on the progress of the application and copies of the document from the Applicant's legal representative, including making a complaint to the Legal Services Commission. [12] On 3 August 2020 a conciliation conference was held before Industrial Commissioner Pidgeon. [13] The conciliation was unsuccessful and a Certificate was issued pursuant to s 318(3)(a) of the IR Act in the following terms: A conference was held between the above parties on 3 August 2020. The parties were unable to resolve the issues between them at the conciliation conference. The initial application was filed late but as canvassed in the conference a jurisdictional objection will not be raised by the Respondent. The Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful. [14] The Certificate relevantly contained the following: NOTE: THE APPLICANT MUST, WITHIN SIX (6) MONTHS OF 3 AUGUST 2020, OR THE DATE OF RECEIPT OF THIS CERTIFICATE, TAKE SOME ACTION IN RELATION TO THE APPLICATION OTHERWISE THE APPLICATION LAPSES 2 The unfair dismissal application filed 17 June 2020. -- 4 of 19 -- 5 [15] The applicant is said to have been unaware of the existence of the Certificate until 18 June 2025 when the Certificate first came into the applicant's knowledge as part of the documents released by the Industrial Registry.3 [16] The applicant seeks the following: 1. That the Commission allow the Application to be re-opened; 2. That the Commission decide the Application; 3. That reinstatement is not considered as a remedy as it would be unreasonable in the circumstances for the applicant to be reinstated; 4. That the following alternate remedies are considered: i. An Order allowing the termination to be substituted with a resignation and any future employment checks will reflect this. ii. An Order for compensation in an amount that the Commission sees fit. 4 Legal Framework [17] This is not an application to reopen pursuant to 484(c) of the IR Act. It is an application for leave to proceed under r 230 of the Industrial Relations (Tribunal) Rules 2011 ('the IR Rules'). [18] Rule 230 of the IR Rules establishes a procedure which applies in circumstances where no action has been taken in relation to an application for at least one year since the last action was taken by the applicant in the application. Rule 230(2) provides that a party may only take further action with an order of the Court, Commission, or Registrar. [19] Rule 230(3) requires an application for an order to take further action to be in the approved form and to be accompanied by certain information. [20] Rule 230 relevantly provides: 230 Lapse of proceeding after at least 1 year's delay (1) This rule applies if— (a) an application starting a proceeding has been filed; and (b) no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application. 3 Application to re-open filed 19 August 2025, Paras a-h. 4 Ibid. -- 5 of 19 -- 6 (2) A party may only take further action on the application with an order of the court, commission or registrar. (3) An application for an order under subrule (2) must be in the approved form and state the following— (a) the steps taken in the proceeding; (b) an explanation for the circumstances of the delay; (c) the steps (including a timetable) proposed to be taken to progress the proceeding; (d) any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out; (e) the merits of the proceeding; (f) why the court, commission or registrar should make the order despite the delay. [21] Rule 5 of the IR Rules provides that the rules apply to a proceeding before the Court, the Commission, a Magistrate or the Registrar. [22] Rule 6 of the IR Rules sets out the purpose of the rules as follows: 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. [23] Rule 6 recognises the obligation placed, in this instance, on the Commission and implicitly on the parties to ensure the expeditious disposition of matters in the Commission. [24] Importantly, the IR Rules contemplate that any exercise of power pursuant to its terms would be exercised consistently with the philosophy stated in r 6. [25] The Commission's power to reopen a proceeding is discretionary and not subject to any statutory conditions.5 The guiding principle in deciding whether to exercise the discretion to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application.6 [26] The Commission also has the power to dismiss the matter under s 541 of the IR Act which provides: 541 Decisions generally The court or commission may, in an industrial cause do any of the following – 5 Bell v Simon Blackwood (Workers' Compensation Regulator) [200] QIRC 37. 6 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, 16-17 cited with approval in Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232, [19]. -- 6 of 19 -- 7 (a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause; (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers – (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate. [27] The phrase 'in the public interest' imports a discretionary value judgment and this is confined to the objects of the relevant legislation.7 Section 3 of the IR Act provides the main purpose of the legislation is: 3 Main purpose of Act The main purpose of this Act is to provide for a framework for cooperative industrial relations that - (a) is fair and balanced; and (b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders. [28] The public interest lies in the balancing of interests and is a question of fact and degree.8 In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd,9 his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell10 as follows: There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.11 7 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24]. 8 Ibid, [28]. 9 (2005) 180 QGIG 1209. 10 [2002] 1 Qd R 647; [2001] QCA 176. 11 Quinlan v Rothwell [2002] 1 Qd R 647, [29]. -- 7 of 19 -- 8 [29] Whilst Quinlan v Rothwell12 related to the application of the Uniform Civil Procedure Rules 1999 (Qld) in respect of an application to dismiss for want of prosecution, the reasoning of Thomas JA has equal application to the current proceedings. [30] Section 541 of the IR Act applies only to an 'industrial cause', which is defined as an 'industrial dispute' or 'industrial matter'. The matter before the Commission falls within this definition and, consequently, the discretion under s 541 is enlivened. Applicant's case [31] The applicant relies on the delinquency of Mr Mellick in managing the matter on her behalf. His failure to take reasonable action, it is submitted, has caused the application to 'lapse'. [32] Communications between the applicant and Mr Mellick until June 2025 led the applicant to believe that the Application remained active and that diligent and competent legal work was being performed with respect to the Application. [33] The applicant asserts that she believed in good faith that her legal representative was providing diligent and competent legal advice and therefore, the lapsing of the Application was outside the applicant's knowledge and control and it would be unreasonable, unfair and unjust for the delay to cause further prejudice caused by the termination of her employment. [34] The applicant recognises that some degree of inconvenience may result from the delay in the progression of the matter. However, the applicant submits that any prejudice to the respondent is outweighed by the fundamental principle that the applicant should not be unfairly disadvantaged due to circumstances outside her control. The delay did not stem from any neglect or lack of diligence on her part, but rather from reliance on the professional obligations of her legal representative. Accordingly, it is submitted that any prejudice to the respondent is mitigated by the overriding interests of justice and fairness. The Respondent's case [35] The respondent opposes the application. [36] The respondent contends that it would suffer significant prejudice should leave be granted noting that it has taken five years and two months for the applicant to seek the re-opening of her original dismissal application.13 12 [2002] 1 Qd R 647; [2001] QCA 176. 13 Respondent's submissions filed 17 October 2025, [7]. -- 8 of 19 -- 9 [37] The respondent further submits that there is no evidence that the applicant within those 5 years called, emailed or endeavoured to contact the Commission to discover the status of the matter. Irrespective of the alleged actions and communication from the applicant's legal representative, a person seeking to be reinstated and have their case heard would reasonably conclude that within 5 years there would be personnel changes in the respondent agency that would create a situation that in the event of the matter progressing, prejudice the agency.14 [38] The respondent notes that the applicant sent emails requesting information in early 2024 with no response from the solicitor and that there were never any documents filed, or copies provided to the applicant during the 5-year period.15 [39] A 'reasonable person' in circumstances where the matter had not progressed; where she was not receiving documentation or correspondence from the solicitor as to the progress being made for over four years would have been more diligent in advancing the matter.16 Discussion [40] Notwithstanding the application before the Commission, under the IR Act or IR Rules, the choice before the Commission is a binary one between leave to proceed or dismissal. [41] In commencing proceedings in the Commission, a party impliedly undertakes to the Commission and to the other parties to the proceedings to litigate the matter in an expeditious way. [42] Accordingly, the rules are to be applied by the Commission with the clear objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules. [43] The Commission is empowered to consider whether any other order was more apposite to achieving that broadly expressed purpose of the rules.17 [44] Once rule 230 is engaged, the continuation of the proceeding depends upon the exercise of judicial discretion. [45] The Commission must decide whether permitting the matter to proceed is consistent with the interests of justice, considering the factors enumerated in subrule (2) of r 230 of the IR Rules. 14 Respondent's submissions filed 17 October 2025, [12]. 15 Ibid, [9]. 16 Ibid, [10]. 17 Section 541 of the IR Act. -- 9 of 19 -- 10 [46] In considering the proper approach to this type of application I have regard to what Chesterman J said in Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd 18 where his Honour adopted the words of Connolly J in Dempsey v Dorber: 19 ... the proper approach ... is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order.20 [47] Chesterman J went on to say: Whether there is a satisfactory explanation for the delay in the prosecution of the action and whether the defendant will suffer prejudice if the action proceeds are always relevant factors. The discretion conferred to r 389 is one to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for three years. The applicant must satisfy the court that grounds exist for exercising the discretion in its favour. There is an evidentiary onus on the defendant to raise any consideration telling against the exercise of the discretion but the ultimate onus of satisfying the court that the action should be allowed to proceed remains on the applicant: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey and Gummow JJ.21 [48] Whilst Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd dealt with r 389 of the Uniform Civil Procedure Rules his reasoning is, in my respectful view, apposite to an application under r 230 of the IR Rules. [49] Let me now turn to the criteria set out in subrule (2) of r 230. The steps taken in the proceeding [50] The only steps taken in these proceedings was the filing of the Application and the conciliation conference. Since the issuing of the certificate by Industrial Commissioner Pidgeon on 3 August 2020 no further steps have been taken in the proceedings. An explanation for the circumstances of the delay [51] In her application filed 19 August 2025, the applicant gives the following reasons for the delay: 1. Mr Mellick provided notice to the QIRC that he was my legal representative for the Application. 2. Mr Mellicks failure to take reasonable action as my legal representative has caused the Application to lapse. 18 [1999] QSC 372. 19 [1990] 1 Qd R 418; (1989) 10 MVR 69. 20 Ibid, p4. 21 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, [2]. -- 10 of 19 -- 11 3. Communications with Mr Mellick up until June 2025 led me to believe that my application remained active and that diligent and competent legal work was being performed with respect to the Application. [52] The applicant ascribes all blame to her legal representative. [53] There is no doubt that Mr Mellick has an obligation inter alia, to act in the best interests of a client in any matter in which the solicitor represents the client and to deliver legal services competently, diligently and as promptly as reasonably possible.22 Based on the material before the Commission, Mr Mellick has fallen short of his duties. [54] A number of cases have dealt with representational error in various contexts. Those cases provide some valuable insights into how such matters should be dealt with.23 [55] Representational error is only one of several factors to be considered in deciding whether leave to proceed should be granted. [56] Depending on the circumstances, representative error may be a sufficient reason to grant leave to proceed. However, a distinction needs to be drawn between delay properly apportioned to an applicant's representative, where the applicant is blameless, and delay occasioned in part or in whole by the conduct of the applicant. [57] This is not a case where the applicant is blameless. The applicant seemed content to have left the matter in the hands of her representative and took no independent steps to inquire as to the status of her claim. [58] It was not until 4 June 2025 that the applicant contacted the Industrial Registry to inquire as to the progress of the matter. On 18 June 2025 the applicant received a copy of the conciliation certificate from the Industrial Registry which noted that the matter would lapse after six months of no steps being taken. [59] Notwithstanding that advice, and after being provided with the relevant documentation, the applicant did not file this application in the Industrial Registry until 19 August 2025, some two months later. [60] The applicant submits that she was led to believe that the Application remained active and that diligent and competent legal work was being performed. However, an examination of the text messages between the applicant and Mr Mellick in her affidavit of 1 October 2025 for the period 20 May 2020 to 12 March 2025 paints a different picture. 22 Australian Solicitors' Conduct Rules 2023. 23 See generally: Clark v Ringwood Private Hospital (1997) 74 IR 413; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; and Jordan v Multiplex Australasia Pty Ltd [2004] FWCFB 440. -- 11 of 19 -- 12 [61] In reading through the text messages, it is not possible to form the view that "diligent and competent legal work was being performed" by the applicant's legal representative. In many instances, Mr Mellick was either evasive or non-responsive. A reasonable person in the position of the applicant could not form the view that the application was progressing satisfactorily. [62] The respondent points out that in respect of the text messages for the period April 2021 to April 2022 the applicant sought information from her solicitor as to whether a date for hearing had been received from the Commission. There was no response from Mr Mellick. [63] The conduct of the applicant is part of my consideration in determining whether leave ought to be granted to the applicant to proceed and to what extent, representative error provides an acceptable explanation for the delay progressing this matter. [64] Of course, a different situation exists where an applicant gives clear instructions to their representative to lodge an application, and through no fault of the applicant, the representative fails to carry out those instructions, despite the applicant's efforts to ensure that the claim is lodged. [65] The applicant sent Mr Mellick the following email on 5 April 2024: I've been trying to contact you this week regarding an update for my draft if it has been typed up and lodged, as we last spoke Tuesday the 19 th of March where to said it was already to go, it just has to be typed up and then its full steam ahead. (but jules is also sick and away) We are now in April and I need to know if this is going to be done within the next week, because if this is not possible then its time for me to find someone who has the time to lodge my documents and settle my matter. Everyday I wake up thinking this will be the day you ring me and let me know not only has everything lodged but we have an offer, but again this day never happens. I am continually calling and asking for updates, for the last two years at least and I also haver messages asking for this, I have been given multiple reasons as to why it hasn't been done, the list is endless.24 [66] Mr Mellick responded by email on same day: Michelle I am just out of court and have been there all week and as a consequence of a mis trial likely up until this Wed. Your claim is not without difficulty. I will be InContact with you mid next week once this trial is finished.25 24 Affidavit of Michelle Buckley filed 10 October 2025, p 91. 25 Ibid. -- 12 of 19 -- 13 [67] On 6 July 2024 in an email to Mr Mellick, the applicant sought, erroneously, the contact number for the Fair Work Commission and also sought confirmation that the file number of the Application was TD/2020/61. It was obvious that at that time, the applicant was contemplating making an independent inquiry as to the progress of the matter. For some unexplained reason, the applicant made no inquiry. [68] It is evident from the email exchange and text messages that the applicant harboured concerns about the dilatory way in which Mr Mellick was managing the Application. Notwithstanding those concerns and despite her repeated suggestions that she would find someone else to act on her behalf, she did nothing. [69] Between the conciliation conference on 3 August 2020 and 3 June 2025, the applicant made no contact with the Industrial Registry. [70] In my view, the applicant cannot dissociate herself from her solicitor in this way. The steps (including a timetable) proposed to be taken to progress the proceeding. [71] There is no material before the Commission in respect of what steps will be taken by the applicant to progress the matter. Any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out. [72] There is little doubt that, should the discretion not be exercised in favour of the applicant the prejudice which would flow to her lies in her inability to have the Application heard and determined. [73] However, there is a genuine risk that the prolonged inactivity in progressing the unfair dismissal claim will undermine the proper conduct of the proceedings. In Mathiesen v Lawson26, North J explained why prolonged inactivity can undermine the continuation of proceedings. His Honour observed: … the history of the dealings relied upon in the pleadings, the complexity of the factual allegations and the circumstances that relevant or impugned conduct dating from many years ago are relevant to the issue of the application for dismissal of the proceedings for want of prosecution… The progressively growing difficulty of fairly determining questions of fact arising out of events which occurred many years ago is a matter of real significance.27 [74] At the mention of this matter on 19 September 2025, Mr Carthew for the respondent told the Commission that allowing the matter to progress after more than five years of inaction would create a situation which would prejudice the respondent and applicant. Any 26 [2018] QSC 154. 27 Ibid, at [38] – [39]. -- 13 of 19 -- 14 witnesses to a hearing of the Application would be required to recall events occurring more than five years ago.28 [75] The Commission was advised that the primary decision maker in this matter, Mr Horton, has retired and many other people involved in the show cause process have since left the service. [76] In Page v Central Queensland University29 Keane JA wrote: While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party. [77] Whilst the Application was made in 2020, the initial conduct giving rise to the termination occurred in 2017. [78] With regard to the prejudice suffered by the respondent if the matter were to be reopened, the respondent says that the length of the delay in this matter is significant. The respondent refers to the statement of McHugh J in Brisbane South Regional Authority v Taylor30 that: …The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates' (R v Lawrence [1982] AC 510 at 517, per Lord Halisham of St Marleybone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognizable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United State Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well base don the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. …The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. …Secondly, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. …Thirdly, people should be able to arrange their affairs and utilise their 28 T1-3, LL16-33. 29 QCA 478 (17 November 2006), [24]. 30 (1996) 186 CLR 541. -- 14 of 19 -- 15 resources on the basis that claim can no longer be made against them. ….The final rationale for the limitation periods is that the public interest requires that disputes be settled as quickly as possible.31 The merits of the proceeding [79] The prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not exercise its discretion to grant leave to proceed. On the material before the Commission, I have formed the view that the applicant's prospects of success are poor. [80] The application for reinstatement and the affidavit in support filed in the Industrial Registry on 17 June 2020 provides no detail as to why it is alleged that the dismissal was unfair. The affidavit merely annexes the documents dealing with the Show Cause process and termination and contains the words: "I wish to appeal the Decision to terminate my employment." [81] The Show Cause Notice of 20 February 2020 alleged the following: Allegation 1: That between the 1 st day of May 2017 and the 22 nd day of December 2017 your conduct was improper in an official capacity in that you dishonestly altered Queensland Police databases to avoid submitting sick leave applications. Further and Better Particulars 1. Between 1 May 2017 and 22 December 2017, you had "Roster Clerk" access to the Intelligence Tasking Analysis System (ITAS) which enabled you to change rostered shifts under the "Roster" tab on ITAS, which a "General User" of ITAS cannot do; 2. You reported unfit for duty on 2 May 2017; 3 May 2017; 10 August 2017; 16 August 2017; 5 September 2017; 7 November 2017; 4 December 2017; 5 December 2017; 20 December 2017 and 21 December 2017; 3. On the days that you reported unfit for duty the respective call taker marked you unfit for duty on ITAS, which placed an "Unfit for Duty" tag over the relevant shift; 4. Using your Roster Clerk access, you modified the ITAS roster by removing the Unfit for Duty tag so the roster erroneously showed you had worked a rostered shift on each of the above dates; 5. You did not apply for leave for any of these dates which you were required to do; and 6. You were remunerated for each of the above shifts as if you had attended work and completed the shifts. 31 Brisbane South Regional Authority v Taylor (1996) 186 CLR 541, 551-553. -- 15 of 19 -- 16 As an administration officer you had the duty to act in a professional manner. I refer to the purpose and scope of the QPS Standard of Practice – Professional Conduct. I note that this Standard of Practice is to be read in conjunction with in considering the prejudice to the employer, May result from the progression of this matter stop, any such prejudice is outweighed by the fundamental principle the disadvantaged circumstances outside their control. The delay did not stem from any neglect or lack of diligence on the part of the applicant, but rather from reliance professional obligation legal representative. Accordingly, it is submitted that any prejudice to the employer is mitigated by the overriding interest of justice and fairness. [82] The merits of the Application are said to be: The merits of the application are that the dismissal was harsh, unreasonable, and unfair because: 1. It was harsh to dismiss me for allegations arising from extreme scrutiny and investigation after I raised a complaint about dissolves conducted allegations of inappropriate use of police resources, bullying and intimidating conduct. 2. Because of my allegations and the subject of those allegations, I was targeted and treated with greater scrutiny and more harshly than other colleagues. 3. Being targeted and treated prejudicially as a result of the allegations made by me included the QPS bringing criminal charges against me where I was found not guilty 4. I was then terminated on the same grounds that I had been found not guilty of to a criminal standard. 5. Termination of my employment was harsh, unreasonable and unfair because it arose out of my allegations of serious misconduct in the workplace and as a consequence of being terminate for alleged fraud and serious misconduct. I have been able to obtain public service incapacity, causing further financial loss and disadvantage.32 [83] The applicant's response 33 to the Show Cause Notice dated 20 February 2020 does not raise that her termination arose out of allegations that she had made in relation to alleged serious misconduct in the workplace. [84] In dealing with the applicant's conduct, Acting Assistant Commissioner Horton went on to state: In relation to the seriousness of your conduct and circumstances of aggravation and mitigation, I refer to page 17 -18 of my previous notice date 9 April 2020 in which I stated my reasons for the intended sanction: The reason I am considering this sanction is the inherent deceptiveness and dishonesty of the initial allegation. This is compounded by your continued dishonesty, despite. multiple. opportunities to tell the truth. You were untruthful to your manager in your meeting on 15 December 2017, you were untruthful in your written correspondence to your manager on 18 January 2018, you were untruthful in your written correspondence to the Professional Practice 32 Application filed 19 August 2025 (B/2025/73). 33 Exhibit B to the affidavit of Micheel Lynne Buckley filed 17 June 2020 (TD/2020/61). -- 16 of 19 -- 17 Manager on 3 July 2018, and when presented with overwhelming evidence in your discipline interview on 29 March 2019, you were untruthful. Even when faced with overwhelming evidence and the grave consequences of this show cause proceeding you still cannot admit your conduct and offer an explanation for it. You are not capable of being truthful and you cannot be trusted. An employee who cannot be trusted and cannot tell the truth, is of no value to the QPS and poses an unacceptable risk.34 [85] Acting Assistant Commissioner Horton, in his letter of termination, addressed the reasons why he considered termination of employment was appropriate. The applicant was expected to conduct herself in a manner that is consistent with a standard of conduct contained in the Code of Conduct. [86] The substantiated conduct is serious and not consistent with the applicant's obligation pursuant to the standards under the Code of Conduct, nor the role performed within the QPS. [87] The applicant was given an opportunity to respond to the conduct during the show cause process. In this regard, she was provided with an opportunity to respond to the Show Cause Notice both in writing and in person (the disciplinary interview) and the show cause in respect of penalty. The applicant's responses were considered and referred to in the decision on findings and the decision to terminate her employment. Consequently, the applicant was given an opportunity to respond to the allegations and the proposed disciplinary action. [88] Having regard to the applicant's position within the QPS and the trust and confidence placed in her, nothing has been raised to suggest that her dismissal was disproportionate to the conduct in which she engaged in respect of the substantiated allegations. [89] In Stark v P&O Resorts (Heron Island),35 Chief Commissioner Hall (as his Honour then was) wrote: Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission….36 [90] I am unable to conclude that the applicant has demonstrated that the Application was one which would have reasonable prospects of success. 34 Employers Response filed 24 June 2020 (TD/2020/61) - 'Decision on Disciplinary Action'. 35 Stark v P&O Resorts (Heron Island) [1993] QIRC 475 (1993) 144 QGIG 914. 36 Ibid, 915. -- 17 of 19 -- 18 Conclusion [91] It is recognised that to refuse leave to proceed will deny the applicant the opportunity to have the Commission consider whether her dismissal was unfair. [92] The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the IR Act. It should be treated as representing the legislature's judgement that justice is best served by applications for reinstatement being commenced within the limitation periods provided for, notwithstanding that on occasion the limitation period may defeat a perfectly good case. [93] In all of the circumstances of this matter, I do not believe that the applicant has justified why the Commission's discretion should be exercised. [94] In the context of a statutory time limitation of six months under the IR Rules, a delay of 5 years and two months is significant. The length of delay is one which is beyond what could be reasonably viewed as acceptable. This delay would be highly prejudicial to the respondent's interests given the evidentiary challenges associated with defending an application after such a long passage of time. Whilst noting the prejudice to the applicant in not having the reinstatement application determined, the reasons provided for the delay do not provide a satisfactory basis to justify such a significant extension of time. [95] As Fraser JA observed in Basha v Basha37 It is settled that the failure to take as well as the taking of procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of process. There is such an abuse of process where, taking into account the burdensome effect upon the defendant arising from the lapse of time, the objective effect of continuation of the proceeding is that a fair trial is not possible. Under UCPR the courts are less tolerant of delay than was the case under former procedural regimes.38 [96] As I noted above, the Commission has the power to dismiss the matter under s 541 of the IR Act. The power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act. It is a power which should be exercised with due circumspection on a proper consideration of relevant material.39 For all intents and purposes, a decision to refuse leave to proceed achieves the same result. [97] It is well accepted that the rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. As time goes by, relevant evidence is likely to be lost; it is oppressive to a respondent to allow a proceedings to be brought long after the circumstances which gave rise to it have passed; and, in this case, the employer should be able to arrange its resources on the basis that claims can no longer be made against it.40 37 [2010] QCA 123. 38 Ibid, [24]. 39 Campbell v Queensland [2019] ICQ 18. 40 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. -- 18 of 19 -- 19 [98] The ultimate onus of satisfying the Commission that the action should be allowed to proceed remains on the applicant.41 Whilst I am conscious that the power to refuse leave to proceed should be reserved for obvious cases, I am satisfied that this is such a case. Order 1. Pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 (Qld) leave to proceed in TD/2020/61 is refused. 41 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 547 per Toohey and Gummow JJ. -- 19 of 19 --