Drage v State of Queensland (Queensland Health) [2023] ICQ 22

INDUSTRIAL COURT OF QUEENSLAND CITATION: Drage v State of Queensland (Queensland Health) [2023] ICQ 22 PARTIES: STEVEN DRAGE (appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (respondent) FILE NO: C/2023/12 PROCEEDING: Appeal DELIVERED ON: 27 September 2023 ex tempore HEARING DATE: 27 September 2023 MEMBER: Davis J, President ORDERS: 1. The appeal is allowed. 2. The order made on 3 March 2023 is set aside. 3. The application is remitted back to the Queensland Industrial Relations Commission for hearing by a member of the Queensland Industrial Relations Commission other than Deputy President Hartigan CATCHWORDS: APPEAL – GENERAL PRINCIPLES – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – where the appellant’s employment was terminated – where the appellant brought an application for reinstatement – where his application for reinstatement was filed one day late – where directions were made for the filing of submissions on “whether the application for reinstatement has been filed within time” – where the real issue was whether an extension ought to be granted in exercise of discretion – where directions were given that the application be determined on the papers unless a party applied for an oral hearing – where the appellant filed submissions – where the respondent filed submissions – where the appellant told the Registrar by email of a desire for an oral hearing – where no oral hearing was afforded to the appellant – where an extension of time was refused – where the application for reinstatement was dismissed – whether the appellant was denied procedural fairness Industrial Relations Act 2016, s 317, s 451, s 557, s 565 CASES: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1, cited Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074, related -- 1 of 8 -- 2 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17, cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, cited APPEARANCES: H Stancliffe, agent for the appellant M Brooks for the respondent SOLICITORS: The appellant appeared by his agent Minter Ellison for the respondent [1] This is an appeal brought by Steven Drage against a decision of Deputy President Hartigan dismissing his application for reinstatement.1 Mr Drage was an employee of the State of Queensland through the department known as “Queensland Health”. I will refer to the employer as “the Department”. Background [2] Mr Drage commenced employment with the Department on 7 June 2017. On 11 September 2021, the Department issued the Health Employment Directive - Employee COVID-19 vaccination requirements, which I will call “the Directive”. The Directive was made in response to the coronavirus pandemic, and it required current and prospective employees of the Department who fell within certain categories of employees to receive a first dose of COVID-19 vaccine by 30 September 2021 and a second dose by 31 October 2021. [3] The Directive included a procedure for exemption. There were various identified categories of exemption and also a “catch all” being “exceptional circumstances”. [4] Mr Drage did not comply with the Directive and instead he made an application for exemption. On 25 October 2021, Mr Drage was advised that the application for exemption had been denied. There was an internal review. The original decision was confirmed. In due course, Mr Drage was suspended from duty, and his employment was terminated on 10 February 2022. [5] An application was filed by Mr Drage for reinstatement.2 It is common ground that the application for reinstatement was filed on 4 March 2022 which was one day beyond the statutory time limit.3 Mr Drage therefore needed an extension of time of one day in order to prosecute his application. [6] On 3 March 2023, Deputy President Hartigan dismissed Mr Drage’s application for reinstatement on the basis that jurisdiction only vested in the Queensland Industrial 1 Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074. 2 Industrial Relations Act 2016, s 317(1). 3 Industrial Relations Act 2016, s 317(2). -- 2 of 8 -- 3 Relations Commission, which I will refer to as “the QIRC”, if Mr Drage obtained an extension of time.4 There seems to be no doubt as to the correctness of that approach. [7] Her Honour then dealt with the application for extension, found against Mr Drage, and concluded she had no jurisdiction to hear the matter and dismissed the application for reinstatement.5 That application was made on the papers in the sense that there was no oral hearing. I will return to that matter shortly. [8] Mr Drage appeals that decision. The appeal is made under s 557 of the Industrial Relations Act 2016 which I will call “the IR Act”. Section 557 provides: “557 Appeal from commission (1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than— (a) error of law; or (b) excess, or want, of jurisdiction. (3) However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2. (4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2). (5) In this section— commission means the commission, other than the full bench constituted by the president and 2 or more other members.” [9] Mr Drage’s appeal from the QIRC is limited to matters based on an error of law, or an excess, or want, of jurisdiction6 unless he obtains leave to argue other grounds. [10] Section 565 of the IR Act limits the discretion to give leave. In essence, leave can only be given where it is in the public interest to do so. No application has been made for leave, so the question is whether or not an error of law, or excess, or want, of jurisdiction is identified. 4 Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074 at [4]-[5]. 5 Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074 at [70]. 6 Section 557(1). -- 3 of 8 -- 4 [11] On the hearing of the appeal, Mr Drage sought through his representative to tender a good deal of new material. I received the material to the extent of marking it “MFI1” for identification and reserved the question of whether it would be admitted as evidence in the appeal. [12] Detailed submissions were then made on Mr Drage’s behalf on the appeal. These were wide-ranging, and some of the submissions were, with respect, clearly beyond the scope of s 557. [13] However, the following grounds were identified, and Ms Brooks of counsel who appeared for the Department was in a position to deal with them. The grounds were these: 1. The finding that there was no reasonable explanation for the delay is unreasonable and not open on the evidence. 2. There was a denial of procedural fairness to make submissions on the merits of the reinstatement application. 3. That denial of procedural fairness caused the decision to miscarry. 4. There was a denial of procedural fairness to make submissions orally. 5. That denial of procedural fairness caused the decision to miscarry. 6. The decision to not allow a one-day extension is unreasonable in a Wednesbury7 sense. 7. The conclusion that there was no merit in the reinstatement application was unreasonable in a Wednesbury sense. 8. The finding about the Human Rights Commission considerations8 was unreasonable in a Wednesbury sense. [14] The decision under appeal was made by the Deputy President in a very conventional manner. Her Honour referred and directed herself to s 317 of the IR Act. That provides that an application for reinstatement must be made to the QIRC within 21 days after the dismissal takes effect but then, by s 317(2)(b) provides that the QIRC may allow a further period on an application for an extension of time.9 [15] Her Honour then directed herself to a number of decisions which considered the factors which are relevant to the application for an extension of time generally and specifically in relation to applications under s 317 of the IR Act and its legislative predecessor.10 There was no complaint on appeal about any matter of law to which her Honour directed herself. [16] Her Honour then considered the length of delay. It was common ground here and not contested before the Deputy President that the application was made on 4 March 2022 and was therefore one day beyond the statutory time limit.11 7 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 8 Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074 at [58] and [59]. 9 At [5] and [6]. 10 At [7]-[11]. 11 At [12]-[15]. -- 4 of 8 -- 5 [17] Her Honour then analysed what she headed “Reasons for the Delay”.12 This was a careful analysis of the evidence concerning the delay in making the application. Her Honour concluded at paragraph [41] of the judgment that she was not satisfied that Mr Drage had provided a reasonable explanation for the delay. [18] The Deputy President then turned her attention to the consideration of prejudice to the parties and concluded at paragraph [42] that there was no prejudice to the Department but, of course, that is not conclusive. Her Honour went on to find that the prejudice to Mr Drage is obvious, being the loss of the right to prosecute his application.13 [19] Her Honour then went to the merits of the application, that is, the substantive application for reinstatement.14 This, again, was a careful analysis and specifically dealt at paragraphs [58] and [59] with the human rights issues raised by Mr Drage. In the end, it was found that: “I do not consider that the matters raised by Mr Drage15 are matters which fall in Mr Drage’s favour when assessing the merit of his matter.”16 [20] Her Honour then, in exercise of discretion, concluded that in all the circumstances, Mr Drage had failed to discharge the onus placed on him to establish that the justice of the case supported the exercise of discretion to grant an extension of time.17 The reinstatement application was dismissed. [21] As I have said, that approach is completely conventional. On the face of the reasons, it is difficult to discern error, but I make no final decision about that. [22] As I have already identified, there are two grounds of appeal which allege a denial of procedural fairness.18 Both arise from a directions order made on 23 May 2022. It is in these terms: “1. That the Applicant file in the Industrial Registry and serve on the Respondent, written submissions addressing whether the application for reinstatement has been filed within the time prescribed by s 317(2) of the Industrial Relations Act 2016 by 4.00pm on 30 May 2022. 2. That the Respondent file in the Industrial Registry and serve on the Applicant, written submissions in response to the Applicant’s written submissions by 4.00pm on 6 June 2022. 3. That the Applicant file in the Industrial Registry and serve of the Respondent, written submissions in reply (if any) by 4.00pm on 10 June 2022. 12 At [16]-[40]. 13 At [44]. 14 At [45]-[69]. 15 That is, matters on the merits of the reinstatement application. 16 Paragraph [69]. 17 At [71]. 18 Grounds 2 (with 3) and 4 (with 5). -- 5 of 8 -- 6 4. That the matter be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 unless either party makes an application for leave to make further written or oral submissions by 4.00pm on 15 June 2022.” [23] In the first order, written submissions are ordered to be filed by the appellant, Mr Drage. The written submissions are described in this way: “ written submissions addressing whether the application for reinstatement has been filed within the time prescribed by s 317(2) of the Industrial Relations Act 2016.” (emphasis added) [24] That is curious because it seems to always have been common ground that the application for reinstatement was filed a day late. The real issue was whether the discretion ought to be exercised to extend the time but the directions order does not invite submissions on that topic. [25] There were then submissions filed. The first was by Mr Drage on 30 May 2022.19 In those submissions, he dealt with a number of matters directly relevant to an explanation of the delay, and then in paragraph 7.5, there is a heading “Having regard for the merits of the Application”. There are then short points made in paragraphs that are marked “a” through to “h”. [26] In response, a submission was filed on 6 June 2022.20 That dealt with a number of things, including the explanation for the delay and other matters that had been raised. At paragraph 39, this is said: “The onus is on the Applicant21 to demonstrate that if an extension of time is granted, the Application22 has a reasonable chance of success.” [27] There then appears a series of submissions about merits of the reinstatement application. [28] That then led to a submission made on 10 June 2022 by Mr Drage in reply.23 That contains a heading “Merits”, and there are a number of paragraphs which deal with a number of issues which concern merits of the reinstatement application. Those submissions, like the submissions made in the original application, are not particularly detailed. [29] It is submitted today on behalf of Mr Drage that there was a misunderstanding as to the extent to which there would be consideration of the merits on the application for the extension of time. [30] By order 4, made on 23 May 2022, the application for an extension was ordered to be dealt with on the papers: 19 Exhibit 3 on the appeal. 20 Exhibit 4 on the appeal. 21 The appellant Mr Drage. 22 A reference to the application for reinstatement. 23 Exhibit 5 on the appeal. -- 6 of 8 -- 7 “... unless either party makes an application for leave to make further written or oral submissions by 4.00 pm on 15 June 2022.” [31] On 10 June 2022, the submission which is now exhibit 5 before me, made on behalf of Mr Drage, was filed by an accompanying email, which said this: “Please find attached final submissions for the Applicant regarding the reinstatement application time delay.” And: “The applicant requests that any further discussions regarding the matter are heard as a hearing.”24 [32] There was a mention of the matter thereafter, and it was said on Mr Drage’s behalf that an oral application was required. In due course, the application was dismissed, as I have already observed. There was no opportunity given for an oral hearing. [33] Dealing with the matter without oral hearing is something that is said to be empowered by s 451 of the IR Act. That is a general directions power. It is not contested that the QIRC does in fact have power to deal with the matter without oral submissions being made. Here, it is clear from order 4 made on 23 May 2022 that the parties were being given at least the right to make application for leave to make further written or oral submissions. [34] There was no application filed by Mr Drage to make oral submissions, but the point was, in my view, clearly raised by the email of 10 June 2022, and it seems to be common ground that it was also raised at a mention. It is clear that Mr Drage wished to make oral submissions, and the inference can be drawn, I think, that the fact that he was contemplating making oral submissions may very well explain the brief way in which his written submissions were presented and filed. [35] There are no reasons that I can see which have been provided by the Deputy President as to why an oral hearing was not allowed or at least the matter mentioned again. The Deputy President may never have had the email drawn to her attention. [36] Ms Brooks, who appears for the respondent, submits that the fact that there was no oral hearing really does not matter, because there is nothing to suggest that the oral submissions would have made a difference. That is a significant submission, because the denial of procedural fairness per se will not vitiate a decision. The question is whether or not the denial has mattered to the result such that it can be said that the decision has been made beyond jurisdiction.25 [37] However, the application was for an extension of time of only one day. There will be cases where it is inappropriate to grant an extension of one day, and there will be cases where it will be appropriate to grant an extension of time of months. However, the decision not to grant an extension of time of one day, especially when there is 24 Exhibit 1. 25 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38], Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [47] and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. -- 7 of 8 -- 8 argument about the merits and that was determined summarily, is a decision which might be regarded, just purely for those reasons, as a finely balanced one. [38] There is no doubt in my mind that Mr Drage wished to have the opportunity to make oral submissions in relation to at least two issues: firstly, the explanation for the delay and, secondly, the merits. Both those matters were determined against him. [39] In all the circumstances, while the judgment itself and the reasons seem completely conventional, I find that by the terms of the order made on 23 May 2022, together with the apparent confusion as to how it came to be that no application to make oral submissions was ultimately heard, Mr Drage has been denied procedural fairness and that denial is significant enough to constitute an error of law or jurisdiction under s 557. [40] The appeal ought to be allowed. The question then is what to do from here. The orders made by Deputy President Hartigan on 3 March 2023 ought to be set aside and the matter remitted back to the QIRC. The decision of the Deputy President, as I have said on a couple of occasions, is completely conventional, but her Honour has made determinations on the merits and on the explanation for the delay. In those circumstances, it would be best, in my view, if the matter was remitted back to the QIRC to consider the application for an extension of time, and that should be heard by a member of the QIRC other than Deputy President Hartigan. [41] In those circumstances, the orders are: 1. The appeal is allowed. 2. The order made on 3 March 2023 is set aside. 3. The application is remitted back to the Queensland Industrial Relations Commission for hearing by a member of the Queensland Industrial Relations Commission other than Deputy President Hartigan. -- 8 of 8 --