Chilcott v Townsville Hospital and Health Service and Anor [2025] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chilcott v Townsville Hospital and Health Service and Anor [2025] QIRC 032 PARTIES: Chilcott, Peter (Complainant) v Townsville Hospital and Health Service (First Respondent) and Lane, Paul (Second Respondent) CASE NO.: AD/2022/22 PROCEEDING: Application in existing proceedings DELIVERED ON: 5 February 2025 MEMBER: HEARD AT: Merrell DP On the papers ORDERS: The orders contained in paragraph [103] of these reasons for decision CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, APPLICATIONS AND INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL PROCEDURES – OTHER MATTERS – Complainant was a medical practitioner who accepted locum engagements to work at health services, that were operated by the First Respondent, at Hughenden and on Magnetic Island – the Second Respondent was employed by the First Respondent as Director of Medical Services, Rural and Indigenous – Complainant made complaint to the Queensland Human Rights Commission alleging unlawful discrimination by the Respondents in the work area on the basis of his age arising out of his removal from locum engagements at the Hughenden and Magnetic -- 1 of 33 -- 2 Island Health Services, and changing his role at the Magnetic Island Health Service – Queensland Human Rights Commission identified other allegations of limitations of the Complainant's human rights under the Human Rights Act 2019 – Complaint referred to the Queensland Industrial Relations Commission – Queensland Industrial Relations Commission made directions for the parties to file and serve statements of facts and contentions and to make discovery for the purposes of conciliation – further directions made by the Queensland Industrial Relations Commission for the parties to file and serve affidavit material for the purpose of hearing and determining the Complaint – Complainant self-represented – Complainant filed his own affidavit – application in existing proceedings by the Respondents to summarily dismiss part of the Complainant's complaint because the Complainant, in his affidavit, admits the Second Respondent did not cancel his future engagements with the First Respondent because of his age – whether the Queensland Industrial Relations Commission should dismiss part of the Complainant's complaint where the Complainant files an affidavit stating the Second Respondent did not engage in unlawful discrimination as alleged, in part, by the Complainant – Respondents' application in existing proceedings also contends that certain paragraphs of the Complainant's affidavit are inadmissible and that other paragraphs disclose no relevant cause of action – whether those claims should be allowed – further submissions made by Complainant about his affidavit material clarifying complaints of unlawful discrimination – Respondents' application in existing proceedings granted in part PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGEMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – power of the Queensland Industrial Relations Commission, pursuant to -- 2 of 33 -- 3 s 541(b)(ii) of the Industrial Relations Act 2016, to dismiss an 'industrial cause' because further proceedings are not necessary or desirable in the public interest – whether the hearing and determination of a complaint of unlawful discrimination in the work area is an 'industrial cause' – whether power, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, should be exercised by the Queensland Industrial Relations Commission where the Complainant files affidavit material, in observance of a Directions Order made by the Queensland Industrial Relations Commission, that states that the Second Respondent did not unlawfully discriminate against the Complainant as alleged in the Complainant's contentions HUMAN RIGHTS – JURISDICTION AND PROCEDURE – where the Complainant alleges his human rights have been contravened contrary to s 58 of the Human Rights Act 2019 – whether Complainant can pursue that claim, pursuant to s 59 of the Human Rights Act 2019, when Complainant's filed affidavit material is contrary to the claim of unlawfulness about the same act or decision Anti-Discrimination Act 1991, s 10, s 174B, s 174C and s 209 Hospital and Health Boards Act 2011, s 17, s 18 and s 19 Hospitals and Health Boards Regulation 2012, s 3 and sch 1 Hospital and Health Boards Regulation 2023, s 4 Human Rights Act 2019, s 9, s 15, s 31, s 58 and s 59 Industrial Relations Act 2016, s 451, s 541 and sch 5 Public Interest Disclosure Act 2010, s 64 Public Sector Act 2022, s 276 -- 3 of 33 -- 4 CASES: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Amerena and Ors v Queensland Teachers Union of Employees and Ors [2023] QIRC 302 BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623 Kheir v Robertson [2019] VSC 422 Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064 SQH v Scott [2022] QSC 6; (2022) 10 QR 215 Reasons for Decision Introduction [1] Dr Peter Chilcott was formerly a medical practitioner in Queensland. Between about August 2020 and April 2021, Dr Chilcott accepted locum engagements to work at the Hughenden Multipurpose Health Service and Private Practice ('the Hughenden HS') and at the Magnetic Island Health Service ('the Magnetic Island HS'). [2] The Hughenden HS and the Magnetic Island HS are rural health facilities operated by the Townsville Hospital and Health Service ('the THHS'). At the material time, Dr Paul Lane, in his position as Director of Medical Services, Rural and Indigenous, was responsible for the management of medical governance issues, including the selection of locum medical professionals for the THHS's rural hospitals, including the Hughenden HS and the Magnetic Island HS. [3] On 5 July 2021, Dr Chilcott made a complaint to the Queensland Human Rights Commission ('the QHRC'). The complaint was accepted by the QHRC. On 5 April 2022, Dr Chilcott's unresolved complaint was referred to the Queensland Industrial Relations Commission. Pursuant to s 174B(a)(iv) of the Anti- Discrimination Act 1991 ('the AD Act'), this Commission has power, in relation to -- 4 of 33 -- 5 complaints about contraventions of the AD Act that are referred to it under the AD Act, to hear and decide the complaints. [4] Dr Chilcott alleged that, contrary to the AD Act, he had been the subject of unlawful direct discrimination in the work area on the basis of his age. The named respondents were the THHS and Dr Lane. The QHRC also identified that Dr Chilcott's complaint contained allegations of limitations of his human rights under the Human Rights Act 2019 ('the HR Act'), namely, his right to recognition and equality before the law1 and his right to a fair hearing.2 [5] In response to a Directions Order made by the Commission, the parties filed and served statements of facts and contentions and made discovery for the purposes of the conciliation of Dr Chilcott's complaint. The most recent version of Dr Chilcott's statement of facts and contentions was filed on 29 November 2022 ('Dr Chilcott's contentions'). The Respondents' response to Dr Chilcott's contentions was filed on 9 January 2023 (the Respondents' contentions'). [6] The unfavourable treatment Dr Chilcott alleges was unlawful discrimination consisted of: • a decision made by Dr Lane to make changes to afterhours rostering for medical practitioners at the Magnetic Island HS; • decisions made by Dr Lane to cancel his future locum engagements at the Hughenden HS and at the Magnetic Island HS; and • the concealment by the THHS of the reasons for removing him from future locum engagements at the Hughenden HS and at the Magnetic Island HS. [7] Dr Chilcott also pressed the alleged contraventions of the HR Act by the THHS. [8] Conciliation did not result in the resolution of Dr Chilcott's complaint. Dr Chilcott's complaint was then referred to me for hearing. [9] Subsequently, I made orders for the parties to file and serve the affidavit material upon which they would rely at the hearing and determination of Dr Chilcott's complaint. Dr Chilcott has always represented himself. On 27 April 2023, I gave leave to the Respondents to be represented by Crown Law and by Mr Payard of Counsel.3 [10] On 11 December 2023, Dr Chilcott filed an affidavit sworn by him ('Dr Chilcott's 2023 affidavit'). [11] By application filed on 19 January 2024, the Respondents applied for: 1 Human Rights Act 2019, s 15. 2 Human Rights Act 2019, s 31. 3 T 1-11, ll 4-15. -- 5 of 33 -- 6 • an order, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 ('the IR Act') that Dr Chilcott's complaint, that the cancellation of future locum engagements at the Hughenden HS and at the Magnetic Island HS was unlawful discrimination on the basis of his age, be dismissed; • an order, pursuant to s 541(b)(ii) of the IR Act, that Dr Chilcott's complaint that the HR Act had been breached in respect of the cancellation of certain future locum engagements, be dismissed; • an order, pursuant to s 541(b)(ii) of the IR Act, that Dr Chilcott's complaint that the Respondents concealed the reasons for removing him from certain future locum engagements, be dismissed; and • an order that paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit are inadmissible and cannot be relied upon by Dr Chilcott at the hearing of his complaint ('the Respondents' application'). [12] The Respondents filed written submissions with their application and an affidavit of Ms Danielle Williamson affirmed on 18 January 2024 ('Ms Williamson's affidavit'). The reason given by the Respondents, for the orders they seek pursuant to s 541(b)(ii) of the IR Act, is the evidence Dr Chilcott gives in paragraph 138 of his 2023 affidavit, namely, that Dr Lane supported the termination of his engagements, not because of his age, but because of other reasons. [13] Upon the Respondents filing their application, I directed that Dr Chilcott file and serve written submissions in response, together with any relevant affidavit material. On 12 February 2024 Dr Chilcott filed written submissions and a further affidavit ('Dr Chilcott's 2024 affidavit'). I also directed that the Respondents could file written submissions in reply and that, unless otherwise ordered, I would determine the Respondents' application on the papers. The Respondents filed such submissions. [14] The question for my determination is whether or not I should grant the Respondents' application. [15] For the reasons that follow, I will: • pursuant to s 541(b)(ii) of the IR Act, order that Dr Chilcott's complaint of age discrimination relating to the cancellation of his future locum engagements at the Magnetic Island HS, as set out in paragraphs 31 to 44 and 49 of Dr Chilcott's contentions, is dismissed; • pursuant to s 541(b)(ii) of the IR Act, order that Dr Chilcott's complaint that the Respondents breached the HR Act in relation to the cancellation of his future locum engagements at the Magnetic Island HS, as set out in paragraphs 1 to 6 of Dr Chilcott's contentions, is dismissed; and • pursuant to s 541(b)(ii) of the IR Act, order that Dr Chilcott's complaint that the Respondents concealed the reasons for the termination of his engagements at the -- 6 of 33 -- 7 Hughenden HS and the Magnetic Island HS, as set out in paragraphs 45 to 47 and 50 to 54 of Dr Chilcott's contentions, is dismissed. [16] Further, pursuant to s 451(1) of the IR Act, I will order that paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit are inadmissible and that Dr Chilcott, at the hearing of his Complaint, cannot rely on that evidence in support of his claims. Other relevant background [17] Other documents filed are also relevant to my determination of the Respondents' application. [18] On 4 April 2024, Dr Chilcott filed an application in existing proceedings seeking disclosure of certain documents held by the THHS. Following the mention of that application on 12 April 2024, I made directions for the hearing and determination of that application on the papers. [19] On 26 April 2024, Dr Chilcott filed a further application in existing proceedings in relation to his earlier application for disclosure. On 29 April 2024, I made directions for the parties to file and serve submissions in relation to that second application. While the Respondents filed and served submissions in response to Dr Chilcott's application filed on 4 April 2024, they did not file any submissions in relation to Dr Chilcott's second application filed on 26 April 2024. As a consequence, I called the matter on for mention on 28 May 2024. On 27 May 2024, Dr Chilcott filed a further application in existing proceedings concerning his earlier applications for disclosure. [20] At the mention on 28 May 2024, Dr Chilcott informed the Commission that: • he did not wish to proceed with his application in existing proceedings for disclosure filed on 4 April 2024;4 • the application in existing proceedings he filed on 26 April 2024 was in fact a submission he wishes me to take into account in respect of the Respondents' application;5 and • the application in existing proceedings he filed on 27 May 2024 was also a submission he wished me to take into account in respect of the Respondents' application.6 [21] I will treat Dr Chilcott's applications in existing proceedings filed on 26 April 2024 and 27 May 2024, to the extent they are relevant, as part of his submissions in respect of the Respondents' application. The Respondents chose not to respond to Dr Chilcott's material filed on 26 April 2024 on the basis they accepted that material to be submissions.7 Despite 4 T (28 May 2024), 1-3, ll 9-13 and 1-4, ll 1-21. 5 T (28 May 2024), 1-5, ll 4-20. 6 T (28 May 2024), 1-6, l 33 to 1-7, l 3. 7 T (28 May 2024), 1-3, ll 36-39. -- 7 of 33 -- 8 being given the opportunity to do so, the Respondents did not make a response to the material Dr Chilcott filed on 27 May 2024.8 The parties' contentions [22] To understand my reasons, it is first necessary to consider the parties' contentions. Dr Chilcott's contentions [23] Dr Chilcott's contentions are headed 'Statement of Facts and Contentions' and 'Industrial Relations Commission Age Discrimination'. I note that, in respect of Dr Chilcott's contentions, some paragraphs concern more than one discrete claim of unlawful discrimination. Background [24] By way of background, Dr Chilcott alleges that: • following the completion of several months' sabbatical leave, he responded to an urgent appeal from the THHS for Medical Superintendent with Right to Private Practice ('MSRPP') relieving positions '… in both Hughenden and Magnetic Island';9 • the THHS advertised '… the vacant MSRPP positions for both Hughenden and Magnetic Island on the 7th August 2020 in emails to the Complainant's locum agency, Global Medics Pty Ltd that were passed on to the Complainant';10 and • he accepted the offer of work as a temporary part-time MSRPP11 '… in both Hughenden and Magnetic Island between 10th August 2020 and the 15th April 2021.'12 Alleged discrimination on the basis of age at the Magnetic Island HS – removal from after-hours rostering (paragraphs 10 to 25 of Dr Chilcott's contentions) [25] Dr Chilcott alleges that: • between 22 February 2021 and 4 March 2021, he was on assignment at the Magnetic Island HS;13 • on 24 February 2021, he discovered an email from Dr Lane to a junior doctor working part-time at the Magnetic Island HS, Dr Short ('Dr Lane's email to Dr Short'), which stated: 8 T (28 May 2024), 1-7, ll 14-15. 9 Dr Chilcott's statement of facts and contentions filed on 29 November 2022 ('Dr Chilcott's contentions'), para. 2. 10 Dr Chilcott's contentions, para. 2. 11 Dr Chilcott's contentions, para. 3. 12 Dr Chilcott's contentions, para. 1. 13 Dr Chilcott's contentions, para. 12. -- 8 of 33 -- 9 Peter is an older GP who would benefit from some first call by Jay to decrease impact of fatigue. Please have a look at the upcoming rosters and see what you can do.;14 • the effect of that '… instruction' was that he (Dr Chilcott) '… was relieved of his duty to provide "first call" after-hours services at Magnetic Island because Dr Paul Lane presumed (without evidence) that the Complainant was susceptible to fatigue due to his age';15 • this action taken by Dr Lane was direct discrimination against him on the basis of his age16 because, contrary to s 10(1) of the AD Act, Dr Lane treated him less favourably than the younger less experienced doctor, namely, Dr Short, by promoting Dr Short and demoting him (Dr Chilcott) in relation to the on-call requirement of his duties;17 and • Dr Lane's alleged discriminatory conduct caused him (Dr Chilcott): - professional humiliation, severe distress,18 and shame and embarrassment;19 - to resign from his professional college, the Australian College of Rural and Remote Medicine ('ACRRM'), to resign from his position on the Education Committee of the ACRRM and to withdraw from all contact with his professional colleagues.20 Alleged discrimination on the basis of age at the Hughenden HS – cancellation of further assignment at the Hughenden HS between 5 and 19 March 2021 (paragraphs 29-30, 35- 37 and 48 of Dr Chilcott's contentions) [26] Dr Chilcott alleges that: • he had been approved for a further assignment at the Hughenden HS from 5 to 19 March 2021 ('the further Hughenden assignment');21 • on 23 February 2021, Dr Lane had cancelled the further Hughenden assignment;22 • the '…termination' of the further Hughenden assignment was confirmed to him by letter from Ms Ruth Heather, Service Group Director, Rural Hospitals Service Group ('Ms Heather') on 8 March 2021 which '…falsely claim[ed]' the termination of the further Hughenden assignment '…was "pursuant to Queensland Health Policy B45 and was" authorised " … under the Standing Offer Arrangement SOA" and that it was pursuant to "clause 4.14.2 of the SOA"';23 14 Dr Chilcott's contentions, para. 10. 15 Dr Chilcott's contentions, para. 15. 16 Dr Chilcott's contentions, para. 13. 17 Dr Chilcott's contentions, para. 20. 18 Dr Chilcott's contentions, para. 22. 19 Dr Chilcott's contentions, para. 25. 20 Dr Chilcott's contentions, para. 25. 21 Dr Chilcott's contentions, para. 12. 22 Dr Chilcott's contentions, para. 12. 23 Dr Chilcott's contentions, para. 29. -- 9 of 33 -- 10 • Ms Heather misrepresented Queensland Health Policy B45;24 • Dr Lane's cancellation of the further Hughenden assignment was direct discrimination against him (Dr Chilcott) on the basis of his age;25 and • the proof of Dr Lane's alleged discriminatory conduct was Dr Lane's earlier conduct of '… relieving the Complainant of his after-hours duties to a subordinate medical officer the following day',26 namely, that as evidenced by Dr Lane's email to Dr Short. Alleged discrimination on the basis of age at the Magnetic Island HS – cancellation of further assignments at the Magnetic HS between 22 March 2021 to 1 April 2021 and between 5 April 2021 to 15 April 2021 (paragraphs 31 to 44 and 49 of Dr Chilcott's contentions) [27] Dr Chilcott alleges that: • on 8 March 2021, Dr Lane and Ms Heather terminated his contracts for work at the Magnetic Island HS between 22 March 2021 to 1 April 2021 and between 5 April 2021 to 15 April 2021;27 • Ms Heather banned him '… from any further work at either Magnetic Island or Hughenden';28 • he (Dr Chilcott) believes that the only reason for terminating the previously confirmed contracts and banning him from any future employment was because of his age;29 and • this alleged discriminatory conduct has caused him to suffer demotion, shame and humiliation.30 Alleged breaches of s 15, s 31 and s 59 of the Human Rights Act 2019 (paragraphs 1 to 6 of Dr Chilcott's contentions) [28] As best as I understand Dr Chilcott's contentions, he alleges: • he accepted several short term positions as the MSRPP at the Hughenden HS and at the Magnetic Island HS between 10 August 2020 and 15 April 2021 following 24 Dr Chilcott's contentions, para. 30. 25 Dr Chilcott's contentions, paras. 35-37 and 48. 26 Dr Chilcott's contentions, para. 48. 27 Dr Chilcott's contentions, para. 31. 28 Dr Chilcott's contentions, para. 31. 29 Dr Chilcott's contentions, paras. 33-44 and 49-53. 30 Dr Chilcott's contentions, para. 49. Ms Heather was not a respondent in Dr Chilcott's complaint to the Queensland Human Rights Commission dated 5 July 2021. No application has been made to join Ms Heather as a respondent to the present proceedings before the Commission. -- 10 of 33 -- 11 an urgent appeal from the THHS which was made by emails from the THHS to his locum agency, Global Medics Pty Ltd ('Global Medics');31 • the offer of employment was made by THHS which he accepted;32 • after working at the Hughenden HS for two weeks (from 10 August 2020), Global Medics advised him that he '… would be compelled to retrospectively sign an employment contract with Global Medics Pty Ltd in order to be paid for his services';33 • he was employed by the THHS in the capacity of a MSRPP on a casual basis at the Hughenden HS and at the Magnetic Island HS according to each clinic's needs dictated by the THHS;34 • due to the secret employment arrangement between Global Medics Pty Ltd and the THHS (made without his consent or knowledge) two weeks into his employment: - he was, from then on, '… wrongly treated as a non-person without human rights, without the right to procedural fairness and without the right to natural justice for the remainder of his employment with THHS'; and - such treatment was in violation of his human rights in breach of s 15, s 31 and s 59 of the HR Act.35 Alleged concealment of reasons for termination of assignments at the Hughenden HS and the Magnetic Island HS because of alleged age discrimination (paragraphs 45 to 47 and 50 to 54 of Dr Chilcott's contentions) [29] Dr Chilcott alleges that: • in April 2021, he made an application to the Supreme Court of Queensland seeking reasons for the termination of his assignments at the Hughenden HS and at the Magnetic Island HS;36 • on 22 April 2021, the THHS refused to provide such reasons;37 • his application to the Supreme Court was refused;38 and • as best as I understand Dr Chilcott's contentions, the THHS deliberately concealed the reasons for the termination of his assignments at the Hughenden HS and the 31 Dr Chilcott's contentions, paras. 1-2. 32 Dr Chilcott's contentions, para. 3. 33 Dr Chilcott's contentions, para. 4. 34 Dr Chilcott's contentions, para. 5. 35 Dr Chilcott's contentions, para. 6. 36 Dr Chilcott's contentions, para. 45. 37 Dr Chilcott's contentions, para. 45. 38 Dr Chilcott's contentions, para. 46. -- 11 of 33 -- 12 Magnetic Island HS because those assignments were terminated for reasons of unlawful direct discrimination on the basis of his age.39 The Respondents' contentions Background [30] The Respondents allege that: • during the period August 2020 to March 2021, the THHS engaged Global Medics to provide medical and general practitioner services at its rural hospitals for certain locum assignments;40 • during the period August 2020 to March 2021, Global Medics filled some of those locum assignments by engaging Dr Chilcott to provide medical and general practitioner services at the Hughenden HS and the Magnetic Island HS as a Medical Superintendent;41 and • during each locum assignment, Dr Chilcott was required to: - work at least 8 hours every day; and - remain on-call whenever he was not working.42 Alleged discrimination on the basis of age at the Magnetic Island HS – removal from after-hours rostering (paragraphs 10 to 25 of Dr Chilcott's contentions) [31] The Respondents deny the allegation because: • in about February 2021, Dr Lane introduced an informal model of care policy in a number of the THHS's facilities, including the Magnetic Island HS, to combat fatigue amongst senior medical staff ('the Policy');43 • in accordance with the Policy, at Magnetic Island HS: - the senior general practitioner, being the Medical Superintendent, was paired with a junior general practitioner; - both general practitioners would be on-call when neither general practitioner was working: - usually, the junior general practitioner would be on first call; and 39 Dr Chilcott's contentions, paras. 47-48 and 50 to 54. 40 The Respondents' statement of facts and contentions filed on 9 January 2023 ('the Respondents' contentions'), paras. 2 and 3. 41 The Respondents' contentions, para. 6. 42 The Respondents' contention, para. 7. 43 The Respondents' contentions, para. 23. -- 12 of 33 -- 13 - if the junior general practitioner required support while on-call, the Medical Superintendent would be available;44 • as a result, the Policy: - reduced the amount of on-call work a Medical Superintendent performed, but did not reduce the number of hours a Medical Superintendent would be on-call; and - did not affect the Medical Superintendent's responsibilities, seniority, or pay, or otherwise result in less favourable conditions for a Medical Superintendent;45 • Dr Lane did not tell Dr Chilcott about his decision to introduce the Policy, including at the Magnetic Island HS, because he was not required to do so;46 • on 24 February 2021, Dr Lane sent the email to Dr Short, a junior General Practitioner working at Magnetic Island HS, and to Ms Jennifer Greenhorn, Director of Nursing, Magnetic Island HS, in which he made the statement referred to in the second dot point of paragraph [25] of these reasons;47 • they would have engaged in the conduct, referred to in the second dot point of paragraph [25] of these reasons, in relation to a younger Medical Superintendent, for the reasons given earlier in this paragraph;48 and • by not requiring Dr Chilcott to be the first General Practitioner on-call, the Respondents did not treat Dr Chilcott less favourably, but rather: - reduced the amount of on-call work Dr Chilcott may have had to perform; and - did not alter Dr Chilcott's responsibilities, seniority as a Medical Superintendent, pay or any other condition of Global Medics' provision of services to the THHS.49 Alleged discrimination on the basis of age at the Hughenden HS – cancellation of further assignment at the Hughenden HS between 5 and 19 March 2021 (paragraphs 29-30, 35- 37 and 48 of Dr Chilcott's contentions) [32] The Respondents deny this allegation because: • they removed Dr Chilcott from future Hughenden HS assignments because they believed certain incidents about his workplace behaviour and issues working with 44 The Respondents' contentions, para. 24. 45 The Respondents' contentions, para. 25. 46 The Respondents' contentions, para. 26. 47 The Respondents' contentions, para. 27. 48 The Respondents' contentions, para. 34. aA. 49 The Respondents' contentions, para. 34. b. -- 13 of 33 -- 14 staff and patients, as set out in paragraphs 14 to 18 of their contentions, had occurred;50 and • they would have removed a younger general practitioner for the same reasons if they believed the younger general practitioner had behaved in the same manner.51 Alleged discrimination on the basis of age at the Magnetic Island HS – cancellation of further assignments at the Magnetic HS between 22 March 2021 to 1 April 2021 and between 5 April 2021 to 15 April 2021 (paragraphs 31 to 44 and 49 of Dr Chilcott's contentions) [33] The Respondents deny this allegation because: • they removed Dr Chilcott from future Magnetic Island HS assignments because: - they believed the incidents regarding his workplace behaviour and issues working with staff and patients, as set out in paragraphs 14 to 18 of their contentions, had occurred; 52 and - they believed those matters created a similar risk for patients at the Magnetic Island HS;53 and • they would have removed a younger general practitioner for the same reasons if they believed the younger general practitioner had behaved in the same manner.54 Alleged breaches of s 15, s 31 and s 59 of the Human Rights Act 2019 (paragraphs 1 to 6 of Dr Chilcott's contentions) [34] The Respondents deny these allegations because: • Dr Chilcott does not contend how the Respondents failed to afford him procedural fairness or natural justice and, as such, Dr Chilcott does not plead a reasonable cause of action and these contentions are liable to be struck out;55 • during the period August 2020 to March 2021, the THHS did not employ Dr Chilcott;56 • s 15 and s 31 of the HR Act relate to a right to recognition and equality before the law and a right to a fair hearing of a legal proceeding respectively and, under these sections, the Respondents were not required to afford Dr Chilcott procedural fairness or natural justice;57 50 The Respondents' contentions, para. 32. a. 51 The Respondents' contentions, para. 32. b. 52 The Respondents' contentions, paras. 28A a. and 36. a. 53 The Respondents' contentions, paras. 28A b. and 36. a. 54 The Respondents' contentions, para. 36. b. 55 The Respondents' contentions, para. 38. a. 56 The Respondents' contentions, para. 38. b. 57 The Respondents' contentions, para. 38. c. -- 14 of 33 -- 15 • any act or decision of the Respondents in relation to the services provided by Dr Chilcott were acts or decisions of a private nature, and could not be unlawful under s 58(4) of the HR Act;58 and • to the extent the matters alleged in paragraphs 1 to 6 of Dr Chilcott's contentions are inconsistent with the matters set out in their contentions in paragraphs 1 to 30, they are untrue.59 Alleged concealment of reasons for termination of assignments at the Hughenden HS and the Magnetic Island HS because of alleged age discrimination (paragraphs 45 to 47 and 50 to 54 of Dr Chilcott's contentions) [35] The Respondents deny these allegations and contend they are liable to be struck out because: • they do not plead a cause of action; and • they are not otherwise material or relevant to a cause of action in Dr Chilcott's contentions.60 Dr Chilcott's 2023 affidavit [36] Dr Chilcott's 2023 affidavit contains 232 paragraphs over 34 pages, and there are 50 exhibits. [37] Dr Chilcott's 2023 affidavit concerns the following matters: • in paragraphs 1 to 10, his evidence about his professional experience, including his experience as a Rural and Remote Specialist General Practitioner; • at paragraphs 11 to 16, his evidence about how he came to be working at the Hughenden HS and at the Magnetic Island HS; • at paragraphs 17 to 25, his evidence about aspects of the contractual arrangements concerning his engagements to work at the Hughenden HS and the Magnetic Island HS; • at paragraphs 26 to 55, his evidence about an incident on 8 February 2021 at the Hughenden HS, concerning a nurse and a patient, and Dr Lane's involvement in that matter; • at paragraphs 56 to 114, his evidence concerning an issue raised by a nurse about his prescription of pain medication to a patient at the Hughenden HS ('the pain medication issue'), Dr Lane's involvement in that matter and certain conclusions he draws about that matter following the provision to him of documents obtained from 58 The Respondents' contentions, para. 38. d. 59 The Respondents' contentions, para. 38. e. 60 The Respondents' contentions, para. 46. -- 15 of 33 -- 16 the Health Ombudsman through an application made pursuant to the Right to Information Act 2009 ('the RTI application'); • at paragraphs 115 to 117, his evidence concerning his engagement at the Magnetic Island HS from 22 February 2021, including his evidence about the email Dr Lane sent to Dr Short as referred to in the second dot point of paragraph [25] of these reasons; and • at paragraphs 118 to 137 his evidence regarding: - concerns raised about him by two nurses at the Hughenden HS; - documents he obtained through the RTI application about the pain medication issue; - a complaint made by a nurse, at the Hughenden HS, to Dr Lane about him (Dr Chilcott) concerning the pain medication issue ('the nurse's complaint'); - how the nurse's complaint should have been handled and that his human rights, including under the HR Act, had been violated by Dr Lane's handling of the nurse's complaint; - his written complaint, sent to Ms Heather on 27 February 2021, about his loss of future engagements at the Hughenden HS and that, by this complaint, he should have had protection under s 64 of the Public Interest Disclosure Act 2010; and - the failure by Dr Lane and Ms Heather '… to allow me to complete my scheduled employment contracts was a "Reprisal" contrary to law.' [38] Then, at paragraph 138, Dr Chilcott gives the following evidence: There can be no doubt in my mind that Dr Paul Lane has used age discrimination as a smokescreen, knowing all the time that he was going to support the termination of my contracts, not because of my age, not because of fatigue, not because of any competency concerns, not because he was unhappy with my work, but because, as he has stated in his email to Emma Hall, " unfortunately there was a significant conflict at Hughenden in his last placement there and he has escalated further to AHPRA." Attached to this affidavit and marked Document PBC-44 is the email to Emma Hall and Ruth Heather. [39] The email from Dr Lane, referred to in paragraph 138 of Dr Chilcott's 2023 affidavit, which was sent by Dr Lane on 3 March 2021 to Ms Emma Hall and to other persons including Ms Heather, states: Hi Emma Dr Peter Chilcott is a locum we have used for the last 12 months or so. He generally has done a good job with the odd patient complaint. There has been no outstanding competent concerns. -- 16 of 33 -- 17 Unfortunately there was a significant conflict at Hughenden in his last placement there and he has escalated further to AHPRA. Currently he is with us at Magnetic Island and appears to be going OK. He finishes on 4th March. We obviously cannot use him further at Hughenden. We have fulfilled our contractual obligations in giving 7 days notice. I have spoke with Jess Barber at Global Medics and she concurs with this. We are supporting our staff at Hughenden and I met with Ruth and Allan earlier this week. I will need to formally respond to Peter and to Global medics so any advice would be appreciated.61 [40] Following paragraph 138, Dr Chilcott's 2023 affidavit deals with: • at paragraphs 139 to 213, his evidence concerning other claims involving alleged contraventions of other Acts and claims of other causes of action against other persons, primarily, the THHS, Dr Lane and other employees of the THHS; and • at paragraphs 214 to 232, his concluding evidence. The Respondents' submissions and affidavit material about Dr Chilcott's age discrimination contentions62 [41] The Respondents submit that: • based on the parties' contentions, the parties were in dispute regarding whether the Respondents treated Dr Chilcott less favourably because of his age; • by paragraph 138 of his 2023 affidavit, Dr Chilcott abandons his claim that Dr Lane and, by extension, the THHS, cancelled his engagements because of his age; • the reasonable interpretation of that evidence is that Dr Chilcott no longer claims that the Respondents cancelled his locum engagements because of his age; • as proven by Ms Williamson's affidavit, the Respondents, out of fairness to Dr Chilcott and prior to making their present application, by letter from Ms Williamson63 to Dr Chilcott dated 11 January 2024 ('Ms Williamson's letter') asked Dr Chilcott to confirm this interpretation; • Dr Chilcott did not respond to Ms Williamson's letter; • in these circumstances, the Commission ought to be satisfied that Dr Chilcott no longer claims that the Respondents cancelled his locum engagements because of his age, and, as a result, there is no longer any dispute regarding a material fact in the two age discrimination causes of action; 61 The affidavit of Peter Bernard Chilcott, filed on 11 December 2023, exhibit 'PBC-44'. 62 I deal with the Respondents' other submissions in support of its application below. 63 A Principal Lawyer employed by the Respondents' solicitors. -- 17 of 33 -- 18 • under s 541(b)(ii) of the IR Act, the Commission may dismiss a claim if it considers that further proceedings are not necessary or desirable in the public interest; • the relevant principles in respect of the application of s 541(b)(ii) of the IR Act are: - the power must be exercised with due circumspection because it can prevent a party from pursuing relief; - the sole jurisdictional fact, or fetter, on the power is whether dismissal is in the public interest; - ascertaining where the public interest lies requires a balancing of interests and is a question of fact and degree; and - in considering the public interest, the Commission must consider the legislative basis of the principal relief sought and the evidence before it; • the public interest weighs in favour of dismissing Dr Chilcott's age discrimination claims relating to the cancellation of his Hughenden HS and Magnetic Island HS engagements because: - there is no longer a dispute between the parties regarding those causes of action, so it is unnecessary for this claim to be heard by the Commission; - dismissing the claim now saves expense and avoids the Commission's resources being wasted on a two-day hearing that would largely serve no purpose; and - where there is no dispute between the parties, that unnecessary drain on the Commission's and the Respondents' resources should be removed; and • the Commission ought to dismiss Dr Chilcott's age discrimination claims relating to the cancellation of his engagements at the Hughenden HS and the Magnetic Island HS.64 Dr Chilcott's submissions and his other affidavit material [42] Dr Chilcott's submissions cover a range of matters, but relevantly to the Respondents' application, Dr Chilcott submits that: • the Respondents have taken the view that, by paragraph 138 of his 2023 affidavit, he abandons his claim that the termination of his contracts was because of his age;65 • he refutes this interpretation because paragraph 138 of his 2023 affidavit refers to information that was hidden from him by the Respondents and was not disclosed 64 The Respondents' written submissions filed on 19 January 2024 ('the Respondents' submissions'), paras. [7] to [13]. 65 Dr Chilcott's written submissions filed on 12 February 2024 ('Dr Chilcott's submissions'), para. 1. -- 18 of 33 -- 19 until after he had filed his contentions on 29 November 2022 as part of the disclosure process in these proceedings and such documents: - '… should have been discovered by the Complainant's RTI applications'; and - should have been disclosed at the beginning of the conciliation process; and • it is difficult, if not impossible, to believe that the withholding of that information by the THHS was anything but intentional.66 [43] The remainder of Dr Chilcott's submissions go to referring to evidence upon which, as best as I can make out, he claims that the cancellation of further engagements for him at the Hughenden HS and the Magnetic Island HS were as a result of issues raised about him by a particular nurse at the Hughenden HS about the pain medication issue. [44] Dr Chilcott's relevant evidence in his 2024 affidavit is that: • he did not receive Ms Williamson's letter;67 • the Respondents' '… objection to paragraph 138' of his 2023 affidavit '… confirms that the Respondents … are attempting to rely upon information that they have always known was false, the entire time that my complaint has been with the Commission.';68 and • the alleged falsity is that the Respondents have always stated different nurses were at the centre of the pain medication issue as opposed to the nurse that Dr Chilcott now claims, for the reasons he states in his 2024 affidavit, was '… at the centre of the controversy.'69 The Respondents' submissions in reply [45] In reply, the Respondents submit that: • while Dr Chilcott denies that his statement in paragraph 138 of his 2023 affidavit should be interpreted as abandoning a claim that Dr Lane cancelled Dr Chilcott's contracts because of his age, Dr Chilcott, did not, in his material: • provide an alternative interpretation of his statement in paragraph 138; or • state that he still claims that Dr Lane cancelled his contracts because of his age;70 and • in those circumstances, the Commission would accept the ordinary meaning of Dr Chilcott's evidence in paragraph 138 of his 2023 affidavit, namely that 66 Dr Chilcott's submissions, paras. 2 to 6. 67 The affidavit of Peter Bernard Chilcott filed on 12 February 2024 ('Dr Chilcott's 2024 affidavit'), para. 2. 68 Dr Chilcott's 2024 affidavit, para. 5. 69 Dr Chilcott's 2024 affidavit, paras. 9 to 30. 70 The Respondents' submissions in reply filed on 15 February 2024 ('the Respondents' reply submissions'), paras. [1] to [2]. -- 19 of 33 -- 20 Dr Chilcott no longer believes that Dr Lane cancelled his contracts because of his age, being the only interpretation of Dr Chilcott's evidence that is open.71 Dr Chilcott's further submissions [46] As I stated earlier, I will treat Dr Chilcott's applications in existing proceedings filed on 26 April 2024 and on 27 May 2024 as his further submissions in response to the Respondents' application. [47] In the application filed on 24 April 2024, Dr Chilcott submitted that it was not until he read Dr Lane's affidavit, filed earlier in these proceedings, on 22 September 2023 that he was able to finally confirm his suspicion that the dismissal of his '"Hughenden" contract' was a fundamental component '…of the age-related discrimination.'72 However, the evidence of Dr Lane to which Dr Chilcott refers (paragraph 64 to 72 of Dr Lane's affidavit filed on 22 September 2023) does not concern the cancellation of his future locum engagement at the Hughenden HS, but concerned the decision to remove Dr Chilcott from the after-hours rostering at the Magnetic Island HS. I note that Dr Chilcott did not file his 2023 affidavit until after Dr Lane filed his affidavit. [48] However, Dr Chilcott then goes on to submit, in paragraph 138 of his 2023 affidavit, he was '… comparing and contrasting the cancellation of the "Magnetic Island contracts" by Ruth Heather with Dr Paul Lane's cancellation of the "Hughenden contract", made only several days earlier.'73 [49] Dr Chilcott then submits: • Dr Lane's decision to cancel his further Hughenden assignment was made on 19 February 2021 and was based upon: - information provided to him (Dr Lane) about the pain medication issue;74 and - Dr Lane's view that he (Dr Chilcott) was suffering from fatigue and Dr Lane's own experience about fatigue and burn out;75 • Ms Heather made the decision on 8 March 2021 to cancel the further assignments at Magnetic Island, but not for reason of his age;76 • Dr Lane's decision to cancel the further Hughenden assignment '… remain unquestionably linked to his age discriminatory action'77 which, as I understand Dr Chilcott's application filed on 26 April 2024, is based upon: 71 The Respondents' reply submissions, para. [3]. 72 Dr Chilcott's application in existing proceedings filed on 26 April 2024 ('Dr Chilcott's April 2024 application'), para. 4. 73 Dr Chilcott's April 2024 application, para. 21 74 Dr Chilcott's April 2024 application, para. 6. 75 Dr Chilcott's April 2024 application, paras. 9 to 23. 76 Dr Chilcott's April 2024 application, para. 28. 77 Dr Chilcott's April 2024 application, para. 30. -- 20 of 33 -- 21 - Dr Lane's views expressed to Global Medics by email on 23 February 2021 about Dr Chilcott's well-being in longer and busier work times;78 and - Dr Lane's email to Dr Short;79 and • paragraph 138 of his 2023 affidavit only concerned the cancellation of the further assignments at Magnetic Island and not the cancellation of the further Hughenden assignment.80 [50] Dr Chilcott seems to repeats these submissions in paragraphs 2, 21 and 22 of the material contained in his application in existing proceedings filed on 27 May 2024. Should parts of Dr Chilcott's complaint be dismissed because further proceedings are not necessary or desirable in the public interest? Section 541(b)(ii) of the Industrial Relations Act 2016 [51] Section 174C(1) of the AD Act relevantly provides that if the AD Act confers jurisdiction on the Commission in relation to a complaint, the Commission may exercise the powers conferred on it under the AD Act or the IR Act. [52] I accept the Respondents' submissions about the applicable principles in respect of the application of s 541(b)(ii) of the IR Act. [53] In Amerena and Ors v Queensland Teachers Union of Employees and Ors81, I relevantly stated:82 The Commission's power pursuant to s 541(b)(ii) of the IR Act [32] Section 541 of the IR Act provides: 541 Decisions generally The court or commission may, in an industrial cause do any of the following– (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. 78 Dr Chilcott's April 2024 application, para. 10. 79 Dr Chilcott's April 2024 application, para. 11. 80 Dr Chilcott's April 2024 application, para. 31. 81 [2023] QIRC 302. 82 Citations omitted. -- 21 of 33 -- 22 … Public Interest [35] The QTU parties referred to O'Sullivan v Farrer as authority for the proposition that the expression 'public interest' when used in a statute: [C]lassically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view". [36] It may also be the case that the ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree. [37] Section 541(b)(ii) of the IR Act recognises that in a particular case, the public interest may displace a litigant's normal right to have a case heard and determined. Onus of proof [38] The onus lies on an applicant to persuade the Commission to exercise discretion and override the prima facie right of a party, who has invoked the Commission's jurisdiction, to refrain from hearing or determining a proceeding. The process for consideration of an application under s 541 [39] In Campbell v State of Queensland (Department of Justice and Attorney General) ('Campbell'), Martin J, President relevantly stated: [28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree. [29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case. [40] Further, in respect of the application of s 541 of the IR Act: • in considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission; and • the value judgment incorporated in s 541(b)(ii) of the Act is a broad one. [54] The phrase 'industrial cause' is now defined in sch 5 to the IR Act in the following terms: industrial cause includes– -- 22 of 33 -- 23 (a) an industrial matter; and (b) an industrial dispute; and (c) a work-related matter under the Anti-Discrimination Act 1991; and (d) another matter within the jurisdiction of the commission. [55] Given the definition of the phrase 'industrial cause' in the IR Act, s 541(b)(ii) of the IR Act is a power available to the Commission in respect of hearing and deciding complaints about work-related contraventions of the AD Act that are referred to it from the QHRC. [56] Dr Chilcott does not dispute that s 541(b)(ii) of the IR Act is a power available to the Commission in the circumstances of his case. Dr Chilcott's complaints of age discrimination relating to the cancellation of his future locum engagements at the Magnetic Island HS should be dismissed [57] In my view, Dr Chilcott's complaints of age discrimination relating to the cancellation of his future locum engagements at the Magnetic Island HS should, pursuant to s 541(b)(ii) of the IR Act, be dismissed; but the allegation of unlawful age discrimination in respect of the cancellation of the further Hughenden assignment should not. [58] This is for three reasons. [59] First, having regard to (what I have taken to be ) Dr Chilcott's further submissions filed on 26 April 2024, he has provided an alternative interpretation of his statement in paragraph 138 of his 2023 affidavit. As I have set out above, Dr Chilcott: • now contends that the cancellation of the further assignments at the Magnetic Island HS between 22 March 2021 and 1 April 2021, and between 5 April 2021 and 15 April 2021, were not due to any decision of Dr Lane and, in any event, such cancellations were not on the basis of his age; and • does provide an alternative interpretation to paragraph 138 of his 2023 affidavit, which reflects the above, and by the submissions he has made, expressly maintains his allegation that Dr Lane cancelled the further Hughenden assignment on the basis of his age. [60] Secondly, Dr Chilcott is representing himself. I take that fact into account in respect of his current explanation that what he put in paragraph 138 of his 2023 affidavit was not accurate. Dr Chilcott has now provided an explanation of what he actually meant in paragraph 138 of his 2023 affidavit. Although, on the face of it, Dr Chilcott's allegation that Dr Lane has unlawfully discriminated against him in respect of the cancellation of the further Hughenden assignment may not be particularly strong, having regard to the explanation given by Dr Chilcott, I am not prepared to strike out that aspect of his complaint. -- 23 of 33 -- 24 [61] That is to say, on the material currently before me (acknowledging that Dr Chilcott's material filed on 26 April 2024 was not a sworn affidavit but consisted of submissions) it is not a clear-cut case that his claim of age discrimination, by the cancellation of the further Hughenden assignment, is not maintained by him. A summary dismissal of a claim should only be made in a clear case.83 For that reason, I do not consider that it is in the public interest that the allegation of unlawful age discrimination, in respect of the cancellation of the further Hughenden assignment, should be dismissed. [62] Thirdly, for the same reasons, Dr Chilcott has now made it clear that he does not press any claims of unlawful discrimination in respect of the cancellation of the two further assignments at the Magnetic Island HS. On that basis, those claims should be dismissed. The abandonment of those claims is clear. Further proceedings by the Commission about those claims are not necessary or desirable in the public interest. [63] As a consequence, the only allegations of unlawful discrimination on the basis of Dr Chilcott's age that remain are: • the allegation that Dr Lane removed Dr Chilcott from the after-hours rostering at the Magnetic Island HS on the basis of Dr Chilcott's age; and • the allegation that Dr Lane cancelled the further Hughenden assignment on the basis of Dr Chilcott's age. Dr Chilcott's complaint that the Respondents concealed the reasons for removing him from certain future locum engagements should be dismissed [64] The Respondents submit:84 [17] Dr Chilcott claims that the respondents concealed their reasons for cancelling Dr Chilcott's engagements. In the Amended Statement of Facts and Contentions, the relief he sought in relation to that claim was an order that Dr Lane explain his reasons for cancelling Dr Chilcott's engagements. Dr Chilcott then abandoned that prayer for relief in the FASOFAC. [18] There are two issues with this claim. First, it does not plead a known cause of action; or, at least, does not plead a cause of action that the Commission has jurisdiction to hear. Second, Dr Chilcott no longer seeks any relief in relation to that claim. [19] As a result, there is no utility in the Commission hearing this claim. Even if it could hear the claim, there is no relief to grant. As a result, it is in the public interest for that the Commission dismiss this claim. [65] I accept these submissions. [66] No complaint was, and could have been, referred to this Commission from the QHRC about such a claim. The Commission's relevant function is to hear and determine complaints about contraventions of the AD Act that are referred to it from the QHRC.85 83 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 to 130 (Barwick CJ) and Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, [57] (Gaudron, McHugh, Gummow and Hayne JJ). 84 Footnotes omitted. 85 Anti-Discrimination Act 1991, s 174B(a)(iv). -- 24 of 33 -- 25 [67] Further, as submitted by the Respondents, Dr Chilcott seeks no relief under s 209 of the AD Act in respect of this claim. [68] For these reasons, further proceedings by the Commission, about this aspect of Dr Chilcott's complaint, are not necessary or desirable in the public interest. Dr Chilcott's complaints that the Respondents breached the Human Rights Act 2019 are dismissed in part [69] The Respondents submit:86 [14] Under section 59 of the HR Act, any claim for relief under the HR Act must "piggyback" another claim that the relevant act or decision – here, Townsville HHS cancelling Dr Chilcott's locum engagements – was otherwise unlawful. While such a claim does not need to be successful, it must be "non-colourable" in the sense that it is "bona fide and not spurious, hypothetical, illusory or misconceived" to attract jurisdiction to grant relief for breaches of the HR Act. [15] Here, Dr Chilcott's claims for breach of the HR Act piggybacked his age discrimination claims. As there was never a proper basis for Dr Chilcott's discrimination claims relating to the cancellation of his engagements – the parties agree age was not the reason for the cancellation – those claims were misconceived. Accordingly, Dr Chilcott cannot use those claims to piggyback his related HR Act claims. So, the Commission does not have jurisdiction to grant relief for Dr Chilcott's HR Act claims that relate to the cancellation of his engagements. [16] It follows that it is not in the public interest for those claims to proceed. If the Commission cannot grant relief, there is no utility in hearing the claim. As such, if the Commission dismisses Dr Chilcott's age discrimination claims relating to the cancellation of his locum engagements, it also ought to dismiss the related claims for breach of the HR Act. [70] Sections 58 and 59 of the HR Act provide: 58 Conduct of public entities (1) It is unlawful for a public entity– (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. (2) Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law. Example– A public entity is acting to give effect to a statutory provision that is not compatible with human rights. (3) Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion 86 Citations omitted. -- 25 of 33 -- 26 concerned and is necessary to avoid offending the religious sensitivities of the people of the religion. (4) This section does not apply to an act or decision of a private nature. (5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to– (a) identifying the human rights that may be affected by the decision; and (b) considering whether the decision would be compatible with human rights. (6) To remove any doubt, it is declared that– (a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and (b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1). 59 Legal proceedings (1) Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful. (2) The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1). (3) However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58. (4) This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including– (a) a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and (b) a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence. (5) A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section. (6) Nothing in this section affects a right a person may have to damages apart from the operation of this section. [71] As the Respondents submit, s 59 of the HR Act is a 'piggy-back' provision in that the statutory scheme: • does not provide for a person to bring any proceedings for contravention of s 58 of the HR Act alone; and -- 26 of 33 -- 27 • provides for a mechanism by which a person can seek relief or remedy in respect of s 58 of the HR Act by adding that claim to another action seeking relief for unlawfulness. 87 [72] However, the non-HR Act proceeding of unlawfulness – provided it is made for a proper purpose and for not an improper purpose of 'fabricating jurisdiction'88 – must be in relation to the same act or decision (of the public entity) as the claim of unlawfulness under s 58 of the HR Act.89 [73] In considering the Respondents' submissions about this matter, it is necessary to: • consider whether each of the Respondents are public entities within the meaning of s 58 and s 59 of the HR Act; • identify the act or decision of the Respondents that Dr Chilcott contends was unlawful, other than arising under s 58 of the HR Act, in relation to which Dr Chilcott seeks relief or a remedy; and • identify the act or decision of the Respondents that Dr Chilcott contends was unlawful under s 58 of the HR Act. Are the Respondents public entities within the meaning of s 58 and s 59 of the HR Act? [74] In my view, the THHS is such a public entity. This is because of the combined effect of s 9(1)(a) of the HR Act (which provides that a government entity within the meaning of s 276 of the Public Sector Act 2022 is a public entity) and s 276(1)(b) of the Public Sector Act 2022 (which relevantly provides that an entity is a government entity if it is a '…corporation … established under an Act … for a public or State purpose.') [75] The THHS is established, by regulation,90 under s 17 of the Hospital and Health Boards Act 2011 ('the HHB Act'). By s 18(1)(a) of the HHB Act, the THHS is a body corporate and, by s 18(2) of the HHB Act, represents the State. By s 19(1) of the HHB Act, the main function of the THHS is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the THHS. [76] Dr Lane is a public entity because he is a person who is a staff member of the THHS within the meaning of s 9(1)(i) of the HR Act. What are the acts or decisions of the Respondents that Dr Chilcott contends were unlawful, other than arising under s 58 of the HR Act, and in relation to which Dr Chilcott seeks relief or a remedy? 87 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, [268]-[269] (Ryan J) and SQH v Scott [2022] QSC 6; (2022) 10 QR 215, [83] (Williams J). 88 Kheir v Robertson [2019] VSC 422, [101] (McDonald J). 89 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, [275], third dot point (Ryan J). See also BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266, [241] (Crowley J). 90 Hospital and Health Boards Regulation 2023, s 4 and see also the Hospitals and Health Boards Regulation 2012, s 3 and sch 1. -- 27 of 33 -- 28 [77] Having regard to my reasons and conclusions above about the cancellation of the further assignments at the Magnetic Island HS, and about the concealment of reasons claim, the acts or decisions that Dr Chilcott can now claim were unlawful under the AD Act are: • the decision by Dr Lane to remove him from the after-hours rostering at the Magnetic Island HS ; and • the decision by Dr Lane that he not undertake the further Hughenden assignment. What are the acts or decisions of the Respondents that Dr Chilcott contends were unlawful under s 58 of the HR Act? [78] As best as I can make out, by paragraphs 1 to 6 of Dr Chilcott's contentions, he contends he was compelled to retrospectively sign an employment contract with Global Medics in order to be paid for his services while working as a MSRPP at the Hughenden HS and the Magnetic Island HS. This is claimed to be the case due to an alleged secret employment arrangement between Global Medics and THHS two weeks into his employment. It is not claimed by Dr Chilcott that these alleged acts amount to unlawful discrimination under the AD Act. [79] However, Dr Chilcott then claims, '… from then on' he was '… wrongly treated as a non- person without human rights, without the right to procedural fairness, and without the right to natural justice for the remainder of his employment with THHS.'91 On the face of this contention, and on the face of the remainder of his contentions, it seems that the acts or decisions, the subject of Dr Chilcott's claims of unlawful age discrimination under the AD Act, are the same as the claims of unlawfulness he makes under s 58 of the HR Act. [80] The Respondents, by their submissions, do not dispute this interpretation of Dr Chilcott's contentions. [81] The Respondents claim that Dr Chilcott's claim for contraventions of the HR Act cannot piggyback his age-related discrimination claims in relation to the cancellation of the future locum engagements at the Hughenden HS and at the Magnetic Island HS. 92 This is said to be the case because, having regard to paragraph 138 of Dr Chilcott's 2023 affidavit, all the parties agree that the reason Dr Chilcott's future locum engagements at the Hughenden HS and at the Magnetic Island HS were cancelled, was not on the basis of his age.93 The Respondents then submit: • Dr Chilcott cannot use those claims to piggyback his related HR Act claims; • the Commission has no jurisdiction to grant the relief sought by Dr Chilcott in relation to his HR Act claims that relate to the cancellation of his engagements; and 91 Dr Chilcott's contentions, para. 6. 92 The Respondents' submissions, para. [14]. 93 The Respondents' submissions, para. [15]. -- 28 of 33 -- 29 • it is, therefore, not in the public interest for those claims under the HR Act to proceed.94 [82] However, as I understand the Respondents' submissions,95 to the extent Dr Chilcott claims he was the subject of unlawful age discrimination in contravention of the AD Act by his removal from the after-hours rostering at the Magnetic Island HS, the claim for a breach of the HR Act by that same act or decision is justiciable by the Commission. [83] As I have found above, Dr Chilcott now accepts that his removal from the future locum engagements at the Magnetic Island HS was not on the basis of his age. Therefore, there are no claims that Dr Chilcott can make for contraventions of the HR Act that can 'piggyback' on his claims of unlawfulness under the AD Act in relation to those decisions. To that extent, Dr Chilcott's claims of breaches of the HR Act, contained in paragraphs 1 to 6 of his contentions, are dismissed. This is because further proceedings by the Commission about those claims are not necessary or desirable in the public interest. [84] However, my decision in this regard does not extend to the claims of unlawful age discrimination Dr Chilcott makes regarding: • the decision by Dr Lane to remove him from the after-hours rostering at the Magnetic Island HS ; and • the decision by Dr Lane that he not undertake the further Hughenden assignment. [85] The claims of unlawful age discrimination, concerning these two decisions, remain on foot. Dr Chilcott, pursuant to s 59(1) and (2) of the HR Act, can make claims of unlawfulness under s 58 of the HR Act about those decisions. For these reasons, these two claims alleging unlawfulness under the HR Act, that Dr Chilcott seems to make, should not be dismissed. Are paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit inadmissible? [86] On a fair reading of paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit, most of that evidence concerns other claims involving alleged contraventions of other Acts and claims of other causes of action against other persons, primarily, the THHS, Dr Lane and other employees of the THHS. [87] The Respondents submit that: • they object to these paragraphs because they raise at least 14 causes of action that are not included in Dr Chilcott's contentions; • some of the causes of action are against persons who are not parties to the present proceeding; and 94 The Respondents' submissions, paras. [15]-[16]. 95 Namely, the paras. [3], [5](a), (b) and (c), [6], [15] and [16] of the Respondents' submissions and para. 1 c. of the Respondents' proposed Directions Order annexed to the Respondents' application in existing proceedings filed on 19 January 2024. -- 29 of 33 -- 30 • the Commission cannot hear these causes of action as part of this proceeding, because in respect of some of them, the Commission does not have the jurisdiction to hear them at all; and in respect of others, the Commission may have jurisdiction to hear them, but they were not part of Dr Chilcott's complaint to the QHRC or are not part of his contentions.96 [88] For these reasons, the Respondents seek an order, effectively a pre-trial ruling, that paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit are inadmissible and that Dr Chilcott cannot rely on those paragraphs at trial.97 [89] The Respondents further submit that: • such a pre-trial ruling as to the inadmissibility of those paragraphs is likely to streamline the proceeding and reduce the potential costs to the parties and the Commission; and • if those paragraphs are ruled as inadmissible before they prepare their evidence, the Respondents will not be put to the expense of preparing material in response to those allegations, and the Commission will not have to consider or hear the parties as to that material.98 [90] Dr Chilcott's states that this evidence is in support of claims that were discovered too late for inclusion in his contentions.99 Paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit are inadmissible and Dr Chilcott, at the hearing of his Complaint as it now stands, cannot rely on that evidence [91] I accept the Respondents' submissions. [92] While I address below, submissions made by Dr Chilcott about seeking leave to amend his contentions, paragraphs 129 to 213 of Dr Chilcott's 2023 affidavit are inadmissible because they contain evidence from Dr Chilcott that is not relevant to any complaint that is before this Commission. [93] The complaint now before the Commission concerns the claims Dr Chilcott makes that he was the subject of unlawful direct discrimination on the basis of his age in relation to the change made to the after-hours rostering at the Magnetic Island HS and in relation to the cancellation of the further Hughenden assignment. [94] Further, having regard to Dr Chilcott's clarification of his evidence given in paragraph 138 of his 2023 affidavit, it seems to me that paragraph 138, and the exhibit to which it refers (Document PBC-44), are now not relevant to Dr Chilcott's claims of unlawful age discrimination that are now before the Commission. This is because they concern the cancellation of the further assignments at the Magnetic Island HS. 96 The Respondents' submissions, paras. [20]-[21]. 97 The Respondents' submissions, para. [22]. 98 The Respondents' submissions, para. [23]. 99 Dr Chilcott's 2024 affidavit, paras. 3 and 4. -- 30 of 33 -- 31 [95] Section 451(1) of the IR Act provides that this Commission has power to do all things necessary or convenient to be done for the performance of its functions. In Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016,100 the following was said of s 451(1) of the IR Act:101 [44] However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s 451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall, Kiefel CJ and Gageler and Keane JJ relevantly stated: [33] The power conferred on a representative body by s 203BK(1) in the familiar terms of a power "to do all things necessary or convenient to be done for or in connection with the performance of its functions", though "broad", is "strictly ancillary", authorising "the provision of subsidiary means of carrying into effect what is enacted in the statute itself" and encompassing "what is incidental to the execution of its specific provisions". The power does "not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred". [45] Later, their Honours stated: A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental. [96] In my view, it is incidental to the execution of the power contained in s 174B(a)(iv) of the AD Act – namely, the power of the Commission to hear and decide work-related complaints of contraventions of the AD Act referred to it by the QHRC – to decide, prior to the hearing and determination of such complaints, that certain affidavit evidence sought to be relied upon by a party can be the subject of a decision that it is inadmissible because it is irrelevant. [97] Pursuant to s 451(1) of the IR Act, I will order that Dr Chilcott cannot rely on paragraphs 129 to 213 of his 2023 affidavit at the hearing and determination of his complaint. Another matter [98] Dr Chilcott submits: • the Respondents' counsel has stated that he (Dr Chilcott) would need to seek leave to amend his original complaint and his contentions to include any allegations discovered too late for inclusion in his contentions; and • he seeks leave from the Commission to amend his contentions to add allegations that were not discovered in time to be included in his contentions.102 [99] I will not grant leave to Dr Chilcott to so amend his contentions as he presently seeks. [100] Such amendments are not merely for the asking. Given the stage of the proceedings, the Respondents, and indeed any potential respondents, need to be put on proper notice, by 100 [2024] QIRC 064 (Merrell DP). 101 Citations omitted. 102 Dr Chilcott's submissions, paras. 24-25. -- 31 of 33 -- 32 way of a formal application, of the specific amendments sought and the reasons for the amendments as sought. They need to then be given a fair opportunity to be heard about the amendments as sought. There potentially are, having regard to the complaints that Dr Chilcott seems to want to now make, a range of issues to be canvassed in respect of any such application. Conclusion [101] For the reasons I have given, I will make orders reflecting the conclusions I have reached. [102] As Dr Chilcott's contentions currently stand, the only claims that are presently justiciable before the Commission are: • his claims that he was the subject of unlawful age discrimination in relation to: - the change made by Dr Lane to the after-hours rostering at the Magnetic Island HS; and - Dr Lane's cancellation of the further Hughenden assignment; and • his claim that the decision of Dr Lane changing the after-hours rostering at the Magnetic Island HS, and his claim that the decision of Dr Lane cancelling the further Hughenden assignment, were not compatible with his human rights as contained in s 15 and s 31 of the HR Act. Orders [103] I make the following orders: 1. Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, the Complainant's complaint of age discrimination against the First and Second Respondents relating to the cancellation of the Complainant's future locum engagements at the Magnetic Island Health Service, as set out in paragraphs 31 to 44 and 49 of the Complainant's Statement of Facts and Contentions filed on 29 November 2022 ('the Complainant's contentions'), is dismissed. 2. Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, the Complainant's complaint that the First and Second Respondents breached s 15 and s 31 of the Human Rights Act 2019, to the extent of the decision to cancel the Complainant's future locum engagements at the Magnetic Island Health Service, as set out in paragraphs 1 to 6 of the Complainant's contentions, is dismissed. 3. Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, the Complainant's complaint that the First and Second Respondents concealed the reasons for the termination of the Complainant's engagements at the Hughenden Multipurpose Health Service and Private Practice and the Magnetic Island Health Service, as set out in -- 32 of 33 -- 33 paragraphs 45 to 47 and 50 to 54 of the Complainant's contentions, is dismissed. 4. Pursuant to s 451(1) of the Industrial Relations Act 2016, the Complainant cannot rely on paragraphs 129 to 213 of the affidavit of Peter Bernard Chilcott, filed on 11 December 2023, in the hearing and determination of Case No. AD/2022/22. 5. That by 4.00 pm on Wednesday, 19 February 2025, the parties file in the Industrial Registry, joint draft directions orders necessary for the hearing and determination of the complaints in the Complainant's contentions that have not been dismissed. 6. That there be a mention of this matter at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street (Cnr Elizabeth and Creek Streets) Brisbane, at 2.00 pm on Friday, 28 March 2025. -- 33 of 33 --