Chen v Gold Coast Hospital and Health Service (No 3) [2023] QIRC 12

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 012 PARTIES: Chen, Victor (Applicant) v Gold Coast Hospital and Health Service (Respondent) CASE NOS: GP/2020/27 & TD/2021/20 PROCEEDING: Application in existing proceedings DELIVERED ON: 18 January 2023 MENTION DATE: 1 December 2022 MEMBER: HEARD AT: Industrial Commissioner Pidgeon Brisbane ORDERS: The application is dismissed CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – PRACTICE AND PROCEDURE – application for recusal of Respondent's legal representatives – where breach of confidentiality alleged – application in existing proceedings dismissed INDUSTRIAL LAW – QUEENSLAND – PRACTICE AND PROCEDURE – application for joinder – where Applicant seeks joinder of three applications – where Respondent resists the joinder – whether it is appropriate that proceedings be tried at the same time – application in existing proceedings dismissed -- 1 of 4 -- 2 APPEARANCES: Dr V Chen, the Applicant himself. Mr PM Zielinski of counsel, instructed by MinterEllison for the Respondent. Reasons for Decision Introduction [1] On 14 November 2022, Dr Victor Chen (the Applicant) filed an interlocutory application in existing proceedings seeking that the Queensland Industrial Relations Commission (the Commission) make the following orders:1 1. The Commission to order further and better discovery from the Respondent to facilitate rational planning ongoing Commission steps to resolution. 2. The Commission to joinder matters PSA/2020/449, GP/2020/27 and TD/2021/20. 3. The Commission to order MinterEllison recuse themselves of all my further Commission processes with prima facie breach of my confidentiality of legal advice via Ms Nikki Khavari who was engaged by both parties concurrently August 2020 and advised me to delay taking legal action inter alia not to progress Public Service appeal where prior filing deadlines were missed in August 2020. [2] I held a mention of the matter on 1 December 2022 where I heard submissions from the parties regarding each of the decisions sought by the Applicant. [3] Dr Chen's application for orders 2 and 3 were dealt with at the mention of the matter on 1 December 2022 and I made orders on that date dismissing both for the reasons given at the mention. [4] At the mention, I reserved my decision regarding Dr Chen's application for order 1 in respect of disclosure and on 3 January 2023, I released my decision in Chen v Gold Coast Hospital and Health Service (No. 2).2 [5] At paragraph [3] of that decision, I said: At a mention of the matter on Thursday 1 December 2022, I heard submissions of the parties regarding each of the decisions sought by Dr Chen. For reasons given at that mention, I dismissed Dr Chen's applications for orders number 2 and 3. I indicated to the parties that I wished to have time to consider a 27-page Affidavit containing several exhibits which Dr Chen had filed in support of his application in existing proceedings and also wished to wait for the transcript of the hearing 1 Application filed by Dr Victor Chen on 14 November 2022. 2 [2023] QIRC 002. -- 2 of 4 -- 3 prior to considering the application for 'further and better discovery'. This decision deals with the request for further and better discovery and for the reasons which follow, I dismiss the application. [6] The following reasons for dismissing Dr Chen's application for orders 2 and 3 are taken from the transcript of the mention and reproduced below. Application for Order 2 - Joinder [7] I had given some thought to the application for joinder before this morning and nothing that I have heard this morning or in the submissions – in the written submissions serves to change that. I’m not going to join public service appeal 2020/449 to the other two matters. One of the reasons is that there is an order of the Industrial Court of Queensland by Vice President O’Connor that the matter be adjourned to the registry pending the outcome of the other two matters. And I – that as far as I’m aware – well, it’s been confirmed this morning, that order wasn’t appealed at the time and I understand that some of the facts behind – some of the factual – you know, a lot of the factual matters run across the three matters but, effectively, the questions that are being asked in the general protections and unfair dismissal are a particular set of questions and the questions to be answered in the public service appeal are different.3 [8] Also, the fact that we have legal representatives for the respondent and Dr Chen has indicated previously that he’s intending to seek legal representation for this matter, that’s another issue in terms of practicalities around the public service appeal. And the utility in terms of joining the three; in terms of the time being of the essence, if anything, I think that joining the PSA matter to the other two matters may take – may mean that it takes longer to hear the matters and to decide them because there are different tests to be applied. Also, this matter was meant to be being heard very shortly and it’s certainly not, respectfully, an issue of the Commission’s preference. My preference would have been to have had the hearing and be on the way to deciding the matters. So if time is of the essence, then continued interlocutory applications will just naturally – and it’s not a criticism – but they will naturally push back the capacity to hear the matter and we’ll get to setting down dates shortly. But for those reasons I’m not joining the PSA matter. It remains adjourned as per the order of the court in that matter of Chen v State of Queensland (Queensland Health).4 Application for Order 3 - Recusal [9] Having heard what everyone has got to say, I’m not going to make an order that MinterEllison recuse themselves. I don’t think I have the capacity to, and I think that in circumstances where you’ve got concerns about professionalism or conduct, and you’ve indicated that you intend to take those up through the proper avenues, you’re free to do 3 T 1-10, ll 1-12. 4 [2022] ICQ 15; T 1-10, ll 14-27. -- 3 of 4 -- 4 that, but I can’t see on the arguments that’ve made or the material before me that I should be – or even that I can request that the respondent – well, request that the respondent’s legal representatives recuse themselves or dictate to the respondent who their legal representatives should be. So I’m not going to make that order. I understand that you did say in some of your – I don’t know if it was in your correspondence or written submissions – that you’ve got concerns about confidence in the matter in the event that MinterEllison remain the legal representatives, and I think that’ll be a matter for you to consider going forward. So that’s my decision in terms of order number 3.5 Conclusion and Order [10] As discussed earlier, I’ve dismissed the application to joinder the matters, for the reasons earlier given, and I’ve dismissed the request to order that Minter Ellison recuse themselves for the reasons given earlier.6 5 T 1-7, ll 10-23. 6 T 1-26, ll 39-41. -- 4 of 4 --