Dawson v State of Queensland (Department of the Premier and Cabinet) [2025] QIRC 109

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dawson v State of Queensland (Department of the Premier and Cabinet) [2025] QIRC 109 PARTIES: Dawson, Travis (Applicant) v State of Queensland (Department of the Premier and Cabinet) (Respondent) CASE NO: B/2025/9 PROCEEDING: Application to reopen proceedings DELIVERED ON: 1 May 2025 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: Application refused CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – PUBLIC INTEREST DISCLOSURE – RE-OPENING PROCEEDINGS – where substantive application in PID/2021/1 dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) – where Applicant seeks an order to re-open proceedings pursuant to s 484 of the Industrial Relations Act 2016 (Qld) – whether a valid delegation under s 35 of the Ministerial and Other Office Holders Staff Act 2010 (Qld) has occurred - whether in the interests of justice to reopen proceedings – where application is refused. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld), s 484 Public Interest Disclosure Act 2010 (Qld), s 48 Ministerial and Other Office Holders Staff Act 2010 (Qld), s 6, s 35 -- 1 of 10 -- 2 Bailey v Marinoff (1971) 125 CLR 529 Bell v Blackwood (Workers' Compensation Regulator) [2020] QIRC 37 Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 Boland v Dillon [2015] NSWCA 183 Burrell v R (2008) 238 CLR 218 Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 342 DJL v Central Authority (2000) 201 CLR 226 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 EB v CT (No.2) [2008] QSC 306 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qld R 12 Gamser v Nominal Defendant (1977) 136 CLR 145 Johnson v Gore Wood and Co [2002] 2 AC 1 Reid v Brett [2005] VSC 18 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 171 FCR 174 Urban Transport Authority v Nweiser (1992) 28 NSWLR 471 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Reasons for Decision [1] The Applicant filed an application pursuant to s 484 of the Industrial Relations Act 2016 (Qld) ("the Act") seeking to reopen proceedings in Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 342 (“the Decision”). [2] The Application is opposed by the Respondent on the basis that the reopening of the proceedings is not in the interests of justice; is an attempt to relitigate issues of fact and -- 2 of 10 -- 3 law conclusively determined by the Commission; and the arguments advanced by the Applicant are either irrelevant or could not affect the outcome of the Commission’s decision.1 Background [3] On 28 January 2021 the Applicant filed an application, and later an amended application on 7 April 2021, seeking relief pursuant to s 48 of the Public Interest Disclosure Act 2010 (Qld) (PID Act). [4] The Respondent filed an application on 12 April 2021 seeking that the Applicant's substantive application be dismissed on the basis that: (a) The Applicant's application was made without jurisdiction; (b) The Applicant's application could not succeed on any view of the facts or the law; and (c) Further proceedings were not necessary or desirable in the public interest. [5] The Respondent’s application was heard before this Commission on 29 July 2021 and a decision ordering that the substantive application in PID/2021/1 be dismissed was released to the parties on 5 October 2021. 2 [6] The decision to dismiss the Applicant's matter was made on the following findings: [47] I accept the argument advanced by the State that the Applicant has failed to identify any breach of the IR Act or an industrial instrument under that Act, as required under s 48(1)(b) of the PID Act. I also accept the argument that s 314 of IR Act, under which the Applicant seeks relief, is not engaged. [48] The State submits that both limbs under s 48(1)(a) and (b) of the PID Act must be satisfied to establish jurisdiction for a claim to injunctive relief.3 In short, if the alleged reprisal does not involve a breach of the IR Act, the Commission does not have jurisdiction to grant an injunction under s 48 of the PID Act. [49] Equally, the Applicant has made no application pursuant to Chapter 8, Part 1, Division 8 of the IR Act for the Commission to deal with a dispute about a dismissal. The affidavit material before the Commission filed by the Applicant does not disclose that the Applicant was dismissed nor any other identified contravention about which such an application could be properly made. … [51] The matter ought to be struck out. In taking that view, I accept that the PID Act is not an 'industrial law' for the purposes of the IR Act; that the Applicant did not take part in a 1 Respondent’s Submissions filed 17 March 2025 para 3. 2 Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 342. -- 3 of 10 -- 4 'proceeding under this industrial law consistent with section 283(i) of the IR Act by making a public interest disclosure'; the Applicant has not identified a 'workplace right' or breach of s 285 of the IR Act; and the Applicant has not identified any other adverse action. As noted above, no application has been made pursuant to Chapter 8, Part 1, Division 8 of the IR Act. It follows therefore that s 314 of the IR Act is not engaged. The Applicant has failed to articulate in any meaningful way how the relief he seeks can be granted.4 (citations omitted) Applicant’s grounds to reopen [7] The application before the Commission raises seven grounds as to why the Commission ought to reopen the proceedings. [8] In First Ground, the Applicant contends that the Respondent or Senior Counsel mislead the Commission about whether the Applicant was ‘terminated’. First, the submission is a scandalous one. Secondly, the submission of the Applicant lacks any particulars as to how it is asserted that the Commission has been misled. [9] The Applicant appears to rely on the following extract from the transcript of the original proceedings before the Commission to support his contention: HIS HONOUR: Was there actually a dismissal, anyway? MR DUFFY: No. Not at all. I will come to that.5 … MR DUFFY: … The respondent’s position at the time of April 2018 was that he was engaged, pursuant to the Ministerial and Other Office Holder Staff Act 2010, as a temporary senior advisor in the Premier’s office. That was extended once or twice for short periods, but ultimately expired – that is, the term of the temporary employment came to an end on the 13th of April 2018. And when one explores the affidavit material, that’ essentially the termination that’s alleged. That is, the temporary employment came to an end. It did so, of course, entirely consistently with the Ministerial and Other Office Holder Staff Act 2010, because section 10 of which provides that the employment may be on a temporary basis, and it was.6 [10] The Respondent’s position throughout all the proceedings before the Commission has consistently been that the Applicant was not dismissed but rather his temporary employment came to an end on 13 April 2018. [11] The material before the Commission is not inconsistent with that position. 4 Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 342, [47]-[49], [51]. 5 T1-4, ll 24-26, (29.07.2021). 6 T1-5, ll 36-44, (29.07.2021). -- 4 of 10 -- 5 [12] On 19 July 2017, the Applicant was appointed as a Temporary Senior Advisor, Office of Premier and Cabinet and Minster for the Arts from 19 July 2017 to 20 October 2017. His temporary employment was extended for two further fixed periods until it expired on 13 April 2018. [13] By letter dated 13 April 2018 under the hand of Ms Mikhal Mitchel, HR Manager for the Department of Premier and Cabinet it was confirmed that the Applicant’s employment ceased on 13 April 2018. [14] On 13 April 2018, the Department of Premier and Cabinet wrote to the Applicant advising: In accordance with your employment conditions, a payment in lieu of notice of one week will be paid. Your final payment, including cash equivalent of leave entitlements will be deposited into your nominated account by Wednesday, 18 April 2018.7 [15] Notwithstanding what the Applicant has submitted before the Commission in respect of this application, he acknowledged at the hearing on 29 July 2021 that: “I think my contract was not renewed in April 2018.”8 [16] The Applicant’s temporary contract of employment with the State came to an end on 13 April 2018; he was not dismissed from his employment nor did any other identified contravention about which an application could be made occur. It is not in contention that the Applicant did not make an application under Chapter 8, Part 1, Division 8 of the IR Act to seek the Commission to deal with a dispute about his alleged dismissal. Equally, no unfair dismissal application was made to the Commission. [17] A jurisdictional barrier is raised as the Applicant sought relief pursuant to s 314 of the IR Act. This section is only relevant and applicable where an application is made for the Commission to deal with a dispute pursuant to s 309 of the IR Act. No application under s309 has been made. [18] The Second Ground advanced by the Applicant is that there is ‘new’ evidence which shows that delegations were made in breach of the Ministerial and Other Office Holders Staff Act 2010 (Qld) (“the MOOHS Act”). [19] This ground does not assist the Applicant. [20] The Applicant contends that the ‘new information’ as set out in “Attachment B” to the Applicant’s outline of submissions revealed that there had been a breach of the MOOHS 7 Respondent’s Submissions filed 17 March 2025 para 30; Exhibit S to the Affidavit of Tamara .Lutvey, filed 17 March 2025. 8 T1-11, l 23.(29.07.2021). -- 5 of 10 -- 6 Act because the Director-General had delegated a function to “a ministerial staff member”. [21] The material before the Commission does not support the Applicants contention. [22] On 28 September 2020 the then Premier, Hon Annastacia Palaszczuk MP delegated her functions (i.e. the function to recommend to the Chief Executive to employ staff members in a Minster’s office) under s 6 of the MOOHS Act to her Chief of Staff. That delegation was made pursuant to s 35(1) of the MOOHS Act. [23] On 21 December 2023 the then Premier, the Hon Steven Miles MP delegated his functions (i.e. the function to recommend to the Chief Executive to employ staff members in a Minster’s office) under s 6 of the MOOHS Act to his Chief of Staff. The delegation was made pursuant to s 35(1) of the MOOHS Act. [24] Finally, on 19 January 2024 Mr Mike Kaiser, the then Chief-Executive of the Department of Premier and Cabinet delegated a function (i.e. the function to employ a person on the Premier’s recommendation) under s 6 of the MOOHS Act to the Associate Director- General of the Department of Premier and Cabinet. The delegation was made pursuant to s 35(2) of the MOOHS Act. [25] The Associate Director-General is a public service employee not a ministerial staff member. No breach of the MOOHS Act is established. [26] Both limbs under s 48(1)(a) and (b) of the PID Act must be satisfied to establish the Commission’s jurisdiction for a claim to injunctive relief. If the alleged reprisal does not involve a breach of the IR Act or an industrial instrument under the IR Act, the Commission does not have jurisdiction to grant injunctive relief under s 48 of the PID Act. Whether or not delegations were made under the MOOHS Act is irrelevant. [27] The Third Ground advanced by the Applicant is founded on the basis that the Premier’s Chief of Staff had directed the termination of the Applicant without input of the Director- General of the Department of Premier and Cabinet. [28] The Applicant contends that his employment was terminated as a consequence of a directive by Mr David Barbagallo on 12 April 2018. This termination was said to have been communicated in an email with the heading “Temporary Appointment Expiry Notification – Travis Dawson” and addressed to Mr Troy Mitchell, Executive Manager, Office of Premier. 9 9 Applicant’s submissions filed 21 February 2025 attachment A page 7. -- 6 of 10 -- 7 [29] The email does not evidence that the Applicant was dismissed. What the email records is that the Applicant’s employment would cease on 13 April 2018 consistent with the extension to his temporary employment. [30] The email to Mr Mitchell also needs to be put into the context of the earlier email correspondence between Ms Mikhal Mitchell and Mr Troy Mitchell seeking clarification as to which staff members would be extended, permanently appointed or would be ceasing their employment.10 [31] For the reasons advanced above, the ground is without merit. The Applicant’s temporary employment came to an end through the effluxion of time. [32] The Fourth Ground advanced by the Applicant again relies on the allegation of a direction of Mr Barbagallo to terminate the Applicant. There is no substance in the Applicant’s submission. It is not in doubt that the Applicant’s temporary employment came to an end on 13 April 2018. In accordance with his conditions of employment he received a payment in lieu of notice of one week. The payment subsequent to his employment coming to an end does not support his contention that he was dismissed. As noted earlier, the Applicant was aware that his employment was not renewed in April 2018. [33] The Fifth Ground traverses the same issues as the balance of the grounds. For the reasons expressed this ground has no merit. I cannot understand how an alleged error in respect of leave balances could have any relevance to the reopening of these proceedings. [34] The Sixth Ground asserts that the Department of Premier and Cabinet contains a narrative which is so obscure as to make it impossible to fully understand the submission that is being made. This submission amounts to no more than a complaint that the Applicant did not agree with the submissions made by Senior Counsel for the Respondent in the earlier proceedings before the Commission. Nothing in the submissions of the Applicant support a view that some misstatement was made. The Applicant does not accept the position taken by the Respondent that he was not dismissed from his employment but rather that he was a temporary employee whose term of employment expired on 13 April 2018. [35] The Seventh Ground advanced by the Applicant makes a series of complaints in respect of record-keeping within the Department of Premier and Cabinet regarding employment contracts. This ground fails to grapple with the fundamental question before the Commission as to whether it had jurisdiction to hear the Applicant’s substantive application. For the reasons expressed by the Commission in its decision, it did not. The onus was on the Applicant to satisfy the Commission that it had jurisdiction. The Applicant has not raised any basis upon which a different outcome would result, or grounds to support the reopening of the proceedings. 10 Ibid attachment A page 8. -- 7 of 10 -- 8 Disposition [36] The Commission’s guiding principle in deciding "whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be.” 11 [37] The cases dealing with an application for reopening draw a distinction between those circumstances where an application for leave to reopen is made before or after judgment. Nevertheless, the guiding principle as expressed above is a broad one. As Industrial Commissioner Hartigan (as her Honour then was) observed in Bell v Blackwood (Workers' Compensation Regulator)12: The Commission's power to reopen a proceeding is discretionary and is not subject to any statutory conditions. The power is to be exercised to serve the interests of justice and should not be construed narrowly. 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. [38] In Urban Transport Authority (NSW) v Nweiser13 Clarke J.A. with whose reasons the other members of the court agreed said: The primary purpose for the rules pursuant to which cases are contested in this State is the furtherance of the interests of justice. For this reason the exercise of the discretion to allow an application to reopen depends essentially upon the trial judge's view as to ·whether the interests of justice are served better by granting than refusing the application. Of course, there needs to be finality in litigation and a limit upon the number of issues which it is open to the parties to contest at a hearing.14 [39] In Reid v Brett 15the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence, albeit in circumstances where the hearing has concluded but judgment has not been delivered, were said to be as follows: (a) the further evidence is so material that the interests of justice require its admission, (b) the further evidence, if accepted, would most probably affect the result of the case;16 (c) the further evidence could not by reasonable diligence have been discovered earlier; and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence. 11 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qld R 12 at 16-17. 12 [2020] QIRC 37. 13 Urban Transport Authority v Nweiser (1992) 28 NSWLR 471 at 478. See also EB v CT (No.2) [2008] QSC 306. 14 Ibid at 476. 15 [2005] VSC 18 [41] (Habersberger J.). 16 Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288, [27]; Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174, [209] (Lindgren J). -- 8 of 10 -- 9 [40] The ‘new’ evidence relied upon by the Applicant is not so material that the interests of justice require its admission. [41] Moreover, prejudice would ensue to the Respondent by the delay in bringing this application. The Commission’s Decision was rendered on 5 October 2021. The Applicant delayed some four years before bringing this application to reopen the proceedings, and as noted by the Respondent, some seven years since the alleged reprisals.17 [42] In respect of the issue of delay, the Applicant submits in his response to the Respondent’s submissions that he “… is not responsible for the three-year delay in the application to reopen this matter.”18 He further submits that: “…at least 22 or 36 month delay occurred because the Applicant delayed finalisation of PID 2021/1 and transfer of the re-filed matter from the District to the Supreme Court.”19 [43] The Applicant had the ability to avail himself of the appeal provisions under s 557 of the IR Act if he was aggrieved by the decision of the Commission. He did not do so. What the Applicant has done, as evidenced in the affidavit of Ms Lutvey20 is to embark on a re-litigation of his original complaint. [44] There are currently proceedings in the Supreme Court (BS No 1044 of 2024) which seek injunctive relief under the PID Act concerning the alleged reprisals. On 25 January 2025, Martin SJA struck out the Applicant’s statement of claim but granted him leave to replead.21 The Applicant advised the Commission during the hearing of this matter that he had not complied with the direction to replead. Rather he made application to this Commission to reopen proceedings. [45] The Applicant seeks to inappropriately engage both the Supreme Court and the Commission to litigate a claim which arose out of the same set of facts and sought the same, or substantially similar, relief. In my view, the initiation of proceedings in this Commission without resolving the existing proceedings in the Supreme Court would constitute an abuse of court process. [46] The Respondent is entitled to rely on one of the defining principles of judicial power, namely, that once controversies have been judicially resolved, they are not to be reopened except in limited circumstances.22 Moreover, the finality in litigation has also been well expressed in policy terms: the public has an interest in efficient and economic litigation 17 Respondent’s Submissions filed 17 March 2025 para 73. 18 Applicant’s Submissions filed 28 March 2025 para 80. 19 Ibid para 81. 20 Affidavit of Tamara Lutvey filed 17 March 2025 para 14-29. 21 Dawson v State of Queensland [2025] QSC 3. 22 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 17 [34]; Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; Burrell v R [2008] HCA 34; (2008) 238 CLR 218, 223 [15]. -- 9 of 10 -- 10 rather than duplication of costs and delay.23 As was expressed in Johnson v Gore Wood and Co24 ‘a party should not be twice vexed in the same matter’. [47] I am not persuaded that it is in the interests of justice to reopen the proceedings. Accordingly, I dismiss the Application. [48] I will hear the parties in respect of the question of costs. 23 Johnson v Gore Wood and Co [2002] 2 AC 1, 31 (Lord Bingham). See also Boland v Dillon [2015] NSWCA 183 (2 July 2015) [60]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538. 24 [2002] 2 AC 1. -- 10 of 10 --