Chen v Gold Coast Hospital and Health Service (No 2) [2025] ICQ 29

INDUSTRIAL COURT OF QUEENSLAND CITATION: Chen v Gold Coast Hospital and Health Service (No 2) [2025] ICQ 029 PARTIES: VICTOR CHEN (appellant) v GOLD COAST HOSPITAL AND HEALTH SERVICE (respondent) FILE NO: C/2023/32 PROCEEDING: Appeal DELIVERED ON: 4 December 2025 DELIVERED AT: Brisbane HEARING DATE: 3 December 2025 MEMBER: Davis J, President ORDERS: 1. The appeal is allowed. 2. The order made on 9 August 2023 by the Queensland Industrial Relations Commission is set aside. 3. There be no order as to costs of the appellant’s application for interlocutory reinstatement. 4. There be no order as to costs of the appeal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant was employed by the respondent – where the appellant was allegedly dismissed from his employment with the respondent – where the appellant sought relief alleging unfair dismissal and adverse action – where the appellant brought an interlocutory application seeking interim reinstatement – where that application was dismissed – where the respondent applied for costs of the interim reinstatement application – where costs of the interim reinstatement application were awarded in a lump sum against the appellant – where the appellant appealed the costs order – where the respondent conceded the appeal – where the respondent conceded that an order should be made that there be no costs of the interim reinstatement application or the appeal – where the respondent’s concessions are made on a pragmatic basis and without concessions as to the allegations against the respondent or various individuals – whether there ought be no order as to costs Industrial Relations Act 2016 (Qld), s 280 -- 1 of 3 -- 2 CASES: Chen v Gold Coast Hospital and Health Service [2025] ICQ 017, related Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128, related Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226, related COUNSEL: The appellant appeared on his own behalf Mr P M Zielinski for the respondent SOLICITORS: The appellant acted for himself MinterEllison for the respondent [1] Dr Victor Chen, the appellant, appeals against a decision made on 9 August 2023 by the Queensland Industrial Relations Commission that he pay the costs of the respondent, fixed at $5,334.00,1 of an unsuccessful application for interlocutory reinstatement.2 [2] Dr Chen is an interventional cardiologist who was employed by the respondent, the Gold Coast Hospital and Health Service, on a casual basis. [3] However, from 10 December 2020, Dr Chen was not allocated any casual work by Gold Coast Health and on 23 December 2020 he filed an application in the Commission alleging adverse action.3 [4] Dr Chen concluded that his employment had in fact been terminated and so on 12 March 2021, he commenced an application for reinstatement. On 22 June 2021, the two claims were consolidated. [5] The proceedings have become quite complicated and there have been many decisions in the Commission, some of which have been subject to interlocutory appeals. [6] On 17 February 2023, an application was filed by Dr Chen seeking interim reinstatement pending the final determination of his claims. Industrial Commissioner Pidgeon dismissed that application on 9 May 2023.4 On 9 August 2023, Industrial Commissioner Pidgeon ordered Dr Chen to pay Gold Coast Health’s costs fixed at $5,334.00.5 The appeal currently before me is from the costs order. [7] In the current appeal, Dr Chen sought to introduce new evidence on the appeal. That application was unsuccessful.6 1 Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226. 2 Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128. 3 Industrial Relations Act 2016, s 280. 4 Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128. 5 Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226. 6 Chen v Gold Coast Hospital and Health Service [2025] ICQ 017. -- 2 of 3 -- 3 [8] In the course of giving judgment dismissing the application to adduce new evidence, I observed: “[12] Gold Coast Health accepts that Industrial Commissioner Pidgeon erred in exercising the discretion to award costs. However, the appeal is resisted on the bases that: (a) the error was not material; and (b) upon a re-exercise of the discretion by this Court, the result would be the same as that ordered by the Industrial Commissioner.”7 [9] For the reasons which follow, it is unnecessary to determine the consequences of that concession. [10] When the appeal came before me on 3 December 2025 for mention, I was advised that Gold Coast Health had changed its position. It maintained its concession that there was error, but consented to the appeal being allowed and an order made that there be no order as to costs of the interim reinstatement application and no order as to costs of the current appeal. [11] Counsel for Gold Coast Health informed the court that the adoption of the new course was a purely pragmatic decision without reference to the merits (apart from the concessions of error). In the litigation between Gold Coast Health and Dr Chen, various allegations have been made by Dr Chen against Gold Coast Health and various individuals. Counsel informed the court that by conceding the appeal it ought not to be taken to be making any concessions in relation to those allegations. Counsel submitted that the basis of the concession ought to be recorded. I accept that submission and have hereby recorded counsel’s submissions. [12] It is appropriate to make orders allowing the appeal, setting aside the order below and making an order that there be no order as to costs of the interim reinstatement application or this appeal. [13] I make the following orders: 1. The appeal is allowed. 2. The order made on 9 August 2023 by the Queensland Industrial Relations Commission is set aside. 3. There be no order as to costs of the appellant’s application for interlocutory reinstatement. 4. There be no order as to costs of the appeal. 7 Chen v Gold Coast Hospital and Health Service [2025] ICQ 017 at [12]. -- 3 of 3 --