Chen v Gold Coast Hospital and Health Service (No 1) [2022] QIRC 422

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v Gold Coast Hospital and Health Service (No. 1) [2022] QIRC 422 PARTIES: Chen, Victor (Applicant) v Gold Coast Hospital and Health Service (Respondent) CASE NOS: GP/2020/27 & TD/2021/20 PROCEEDING: Applications in proceedings DELIVERED ON: 18 October 2022 HEARING DATE: 17 October 2022 DATES OF WRITTEN SUBMISSIONS: Applicant's submissions, 29 September 2022 Respondent's submissions, 10 October 2022 Applicant's submissions in reply, 14 October 2022 MEMBER: HEARD AT: Industrial Commissioner Pidgeon Brisbane ORDERS: 1. The Applicant's application dated 23 September 2022 to amend its statement of facts and contentions is allowed. 2. The hearing dates of 23, 24, 25 and 28 November 2022 are vacated. -- 1 of 10 -- 2 CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – INTERLOCUTORY APPLICATIONS – application to amend statement of facts and contentions – application made late in proceedings – application allowed LEGISLATION: Industrial Relations Act 2016 (Qld) ss 285, 539 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, 19, 226 CASES: AON Services Australia Limited v Australian National University (2009) 239 CLR 175 Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140 ASMOFQ v Queensland Health (No. 2) [2021] QIRC 278 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278 Cement Australia Pty Ltd v ACCC (2010) 187 FCR 261 Cooper v Dexter [2003] QDC 031 Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 13 Red Cross Australia v QNMU (2019) 273 FCR 332 APPEARANCES: Mr N Congram of counsel, instructed by K&L Gates for the Applicant. Mr PM Zielinski of counsel, instructed by MinterEllison for the Respondent. -- 2 of 10 -- 3 Reasons for Decision (ex tempore) Introduction [1] Dr Chen has brought two matters which are being heard together, GP/2020/27 and TD/2021/20. Following a mention on 26 August 2022, the hearing of these matters was listed to commence on 23 November 2022. [2] On 14 September 2022, Dr Chen filed an amended application. Filed along with the amended application was a further amended statement of facts and contentions. [3] On 23 September 2022, the Respondent filed a Form 22 Response and counter claim objecting to all proposed amendments in the amended application filed on 14 September 2022. In Schedule 1 of the form, the Respondents relevantly stated: 2. The Respondent objects to the amended application and the amendments therein because of reasons including that: (a) making the amendments at this late stage is not consistent with the just and expeditious resolution of the proceedings; (b) allowing the amendments would unfairly prejudice the Respondent and could jeopardise the trial dates; (c) the Applicant has not provided any satisfactory explanation for the delay in seeking to make the amendments; and (d) it is not in the approved form as required by r 19(2) of the Industrial Relations (Tribunals) Rules 2011. [4] On 23 September 2022, Ms Isobelle Martin of K&L Gates filed an affidavit where she set out the background to the matter and the history of disclosure and evidence. Relevantly, Ms Martin said: [27] Until the Respondent had provided the final tranche of disclosure documents, we were not in a position to determine whether the Applicant's general protections claim and statement of facts and contentions should be amended to include allegations that the hiring of Dr Broyd and Dr Vo was adverse action. Without waving privilege in any advice provided, following the provision of disclosure and the confirmation that there were no further documents, Ms Traeger and myself have formed the view that there is a proper basis for the Applicant to allege that the hiring of Dr Vo and Dr Broyd constituted adverse action in contravention of s 285 of the Industrial Relations Act 2016 (Qld). [28] On 30 August 2022, instructions to amend the statement of facts and contentions to make these allegations were given to us. We promptly instructed counsel to draw those amendments and on 14 September 2022, the amended general protections application and further amended statement of facts and contentions were filed and served upon the Respondent's representative. [5] The parties have filed submissions regarding the application to amend the application, and with it, the statement of facts and contentions. A hearing was held on -- 3 of 10 -- 4 Monday 17 October 2022 for the purpose of hearing further oral submissions from the parties. [6] For the reasons which follow, I have determined that the objection to the application to amend the statement of facts and contentions is dismissed and Dr Chen may amend his application. Further, for reasons I will explain, I have determined that the circumstances warrant the provision of extra time for the Respondent to consider the amended application and statement of facts and contentions and prepare for the hearing. Therefore, the current dates for the hearing which was to commence on 23 November 2022 are vacated. [7] I was assisted by the written submissions filed in this matter and the opportunity to hear oral arguments and for me to ask questions of the parties. I do not intend to set out the submissions in detail, but I have considered all submissions, even if I do not mention them here. Applicant's submissions in support of the application to amend [8] The applicant seeks to amend the claim to include an earlier form of adverse action by relying on the exercise of already pleaded workplace rights.1 [9] The Applicant directs my attention to Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 13 where Davis P considered an application for leave to amend a notice of appeal. The Applicant says that whilst that application concerned amendment to an appeal made pursuant to r 226 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules), the Court considered the application of s 539(d) and the principles concerning leave generally at [41]-[48]. The Applicant says that the important factors for consideration were whether the proposed amendments represented an arguable case and the explanation for why the amendments were necessary. [10] The Applicant directed me to a number of principles addressed by courts in consideration of applications to amend applications or pleadings. I will not re-state those submissions here but I note that my attention was drawn to Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140 at [6]; AON Services Australia Limited v Australian National University (2009) 239 CLR 175 at [98]-[103] and [111]-[114]; and Cement Australia Pty Ltd v ACCC (2010) 187 FCR 261 at [51]-[52]. [11] The Applicant's submissions in support of allowing the amendments were grouped under the following topics: (a) the strong arguable case revealed by the proposed amendments; (b) the explanation for the need to make the amendments; 1 Applicant's outline of submissions filed 29 September 2022, [17]. -- 4 of 10 -- 5 (c) the applicant's expeditious making of the amendments after being provided with the relevant disclosure; and (d) the absence of any meaningful prejudice to the respondent. [12] With regard to the strong arguable case, the Applicant sets out the reasons it contends that the employment of Doctors Vo and Broyd constituted adverse action. The Applicant accepts that in any proceeding alleging adverse action, the Applicant must establish facts that are consistent with the hypothesis that the adverse action was taken for a proscribed reason.2 The Applicant sets out the matters it relies on and says that those matters are consistent with the fact that there was a proscribed reason for the employment of Doctors Broyd and Dr Vo. 3 The Applicant submits that the proposed amendments give rise to a strong arguable case and tends strongly to favour the amendments being allowed. [13] With regard to the explanation of the proposed amendments, I note the affidavit of Ms Martin which explains why the Applicant seeks to amend the General Protections application and amended statement of facts and contentions. Essentially, Ms Martin deposes that whilst Dr Chen was initially aware of Doctors Vo and Broyd being employed, he was not aware of a number of details surrounding the employment of those two doctors until the disclosure process had been completed. [14] Ms Martin says that prior to learning of those matters, the Applicant did not have a proper basis to allege that adverse action had been taken for a proscribed reason. Upon completion of that part of the discovery, the Applicant promptly gave instructions for the amendments to be made. Those amendments were made and the necessary documents were filed.4 [15] The Applicant says that there is no prejudice to the Respondent. While the Applicant accepts that the Respondent will be required to file an amended statement of facts and contentions dealing with the new allegations and that the Respondent will also be required to file additional affidavit evidence going to the reason for the alleged adverse action, the Applicant says that a substantial volume of affidavit material about the circumstances has already been filed and the extent of additional material is likely to be relatively limited.5 [16] The Applicant argues that while the Respondent's lawyers will need to take additional instructions from the Respondent and its witnesses, this is no more or less than if the allegation had originally been made. The Applicant says that this is not a case where the 2 Applicant's outline of submissions filed 29 September 2022, [30] citing Red Cross Australia v QNMU (2019) 273 FCR 332, [67]-[74] and in particular [73]. 3 Ibid [30]. 4 Applicant's outline of submissions filed 29 September 2022, [35]-[36]; Affidavit of I Martin of 23 September 2022. 5 Ibid [37]. -- 5 of 10 -- 6 Applicant's amendments abandon part of the case previously run in favour of some new alternative case.6 [17] The Applicant argues that there is still a substantial period of time in which the Respondent can put on the additional material and that because discovery has already been made of the documents relating to the appointments of Doctors Vo and Broyd, there are no other interlocutory steps which need to be taken. The Applicant says there is no reason to think that the amendments would impact the existing trial dates and that the Respondent has known about the proposed amendments since 14 September 2022. The Applicant suggests that the task of taking instructions should have already commenced.7 [18] Finally, with reference to the matter of Cooper v Dexter,8 the Applicant says that it would be at liberty to commence a new proceeding alleging the additional form of adverse action if leave was not granted. The Applicant says that in those circumstances, the Respondent would be in exactly the same position by being confronted with the allegations and having to respond to them.9 Grounds of objection to proposed amendment [19] In written submissions dated 10 October 2022, the Respondent outlines the basis for its opposition to the majority of the proposed amendments, save those at paragraph [4A] of the amended application. [20] With reference to the Industrial Relations (Tribunals) Rules 2011 (Qld), the Respondent says that a party may file and serve an application prior to the substantive hearing without leave of the Commission; however, the Respondent has a right to object to any such amendment. The Commission may decide whether to allow or disallow the proposed amendment on terms it considers. The Respondent points to the following considerations outlined by Merrell DP outlined in ASMOFQ v Queensland Health (No. 2) [2021] QIRC 278 at [25] citing AON Services Australia Limited v Australian National University (2009) 239 CLR 175. (a) the object is to do justice between the parties according to law; (b) having regard to r 6 of the Rules, important considerations are the effect of the delay and costs; (c) the point the litigation has reached; (d) the nature and importance of the amendment to the applying party; (e) whether the amendment is brought in good faith; and 6 Ibid [38]. 7 Ibid [39]. 8 [2003] QDC 031. 9 Ibid [40]. -- 6 of 10 -- 7 (f) the explanation given by the party seeking the amendment weighed against the effects of any delay and the objectives of the rules.10 [21] The Respondent makes submissions in reply to the principles drawn from Kelsey v Logan City Council & Ors (No 2) ICQ 13 and Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140. I have noted those submissions, specifically as they relate to the suggestion by the Applicant that if leave is not granted to amend the application, a separate application will likely be made. [22] The Respondent says that the proposed amendments to the application and the statement of facts and contentions should not be allowed because they: (a) Significantly change the nature of the Applicant's case; (b) would require the Commission to deal with matters that are already before it in other proceedings; and (c) have been made at an unjustifiably late stage, are not supported by an adequate explanation and will cause prejudice to the Respondent; (d) do not give rise to a 'strong prima facie' case.11 [23] The Respondent says that if the amendments are allowed, the Respondent will need to: re-plead to a broader case; substantively respond to the merits of the Applicant's conversion appeal to demonstrate whether or not the employment of Doctors Broyd and Vo affected the consideration of disposition of that application; and prepare additional evidence on various matters. The Respondent says that the prejudice is acute where the Commission does not have the power to order the Applicant defray the Respondent's costs in that regard. The Respondent further notes that if the amendments are allowed, it may be necessary for the hearing dates to be vacated. [24] I note the Respondent's submission with regard to the conversion appeal currently before the Commission but placed in abeyance pending the outcome of Dr Chen's General Protection and Unfair Dismissal applications. [25] Further, the Respondent argues that the proceedings are at a very advanced stage and it is not the case that the amendments were made expeditiously following the relevant disclosure. The Respondent says that at the time of the mention on 26 August 2022 setting down the November hearing dates, the Applicant must have known that there was a likelihood that it would seek to amend its application and statement of facts and contentions but this prospect was not raised.12 [26] The Respondent says that Dr Chen has, in documents filed as long ago as May 2021, repeatedly impugned the circumstances of Doctors Broyd and Vo being employed by the 10 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278, [25]. 11 Respondent's outline of submissions filed 10 October 2022, [31]. 12 Respondent's outline of submissions filed 10 October 2022, [38]-[39]. -- 7 of 10 -- 8 Respondent. The Respondent says that the Applicant has been aware of the bulk of the circumstances that it now relies on to allege that the employment of Doctors Broyd and Vo was adverse action.13 [27] The Respondent says that while Dr Chen was aware of these matters, he ultimately chose not to include them in the statement of facts and contentions and they were not part of his pleaded case. The Respondent says that the obvious inference to draw is that this was the result of a forensic decision taken by him, with the benefit of legal advice.14 [28] The Respondent acknowledges that the matters raised in the amended application 'are capable of supporting an inference' that their engagement was motivated by a proscribed reason, however, says that this does not amount to a 'strong arguable case'. [29] I note that at the hearing of the matter, the Respondent stated that it did not commence to take instructions regarding the matters raised in the amended application as there had not yet been a decision to allow the application to be amended and it would not be a prudent use of public funds to prepare for the expanded case prior to the objection to the amendments being heard. I also note that the thrust of the Respondent's submissions is that if I allow the application to be amended, the Respondent will seek an adjournment in order to address the changed application, particularly in circumstances where the allegations involve civil penalty provisions and fairness would dictate that the Respondent should be afforded time to address the new or expanded case before it. Applicant's reply submissions [30] The Applicant says that the extent of the work to be undertaken to address the amended application has been overstated by the Respondent.15 [31] The Applicant restated its position that if the amendments were not allowed, they could be brought forward in the form of a separate application. I have considered this submission and the oral submissions made at the hearing. I note the submissions that it is the most efficient use of the Commission's resources to hear the claims together in this proceeding by allowing the amendments.16 [32] The Applicant further addresses the explanation for the delay.17 The Applicant repeats its previous submission, also addressed at the hearing, that while Dr Chen had criticisms of the appointment of Dr Broyd and Dr Vo, he did not believe he had a proper basis to bring the proposed amendments until the disclosure process was completed. With regard 13 Ibid [41]. 14 Ibid [42]. 15 Applicant's submissions in reply filed 14 October 2022, [18]-[21]. 16 Ibid [23], [25]. 17 Ibid [26]-[31]. -- 8 of 10 -- 9 to the criticisms raised about Dr Chen's applications in 2021, the Applicant also says that none of Dr Chen's current legal representatives acted for him at that time. [33] The Applicant says that in circumstances where the Respondent concedes that there is an arguable case raised by the amendments, the strength of the Applicant's case should weigh heavily in favour of the amendments being allowed. Consideration [34] In considering whether to grant leave for the Applicant to amend the application and the statement of facts and contentions, I have had regard to the principles raised by the parties. [35] I accept that while Dr Chen may have held a view that the circumstances of the employment of the other doctors may have given rise to further allegations of adverse action, it was not until there was further detail provided through disclosure, that the cause of action became clearer or sharper. I also note that there has been a change of legal representation over time and I accept that sometimes there will be unavoidable matters which arise, such as individuals taking leave which may lead to a short delay in the provision of instructions or advice. [36] I am of the view that the proposed amendments represent an arguable case. In arriving at this view, I have had regard to the factual circumstances as I currently understand them. I am certainly of the view that it would not be fair and just to Dr Chen to prevent him from arguing the matters subject of the amendments. And in any case, if I were to refuse leave to amend, it appears likely that a separate application would be brought with a view to prosecuting those matters and that would likely lead to further delay while the Commission heard arguments from the parties as to how such an additional application should proceed, or whether it should proceed at all. [37] The matter is certainly well progressed, the hearing dates have been set down for some time now and the hearing is due to take place in about a month from now. However, it is my view that the opportunity exists to both overcome potential prejudice to the Applicant by enabling him to amend his application and plead his case at its fullest and highest but also overcome prejudice to the Respondent by vacating the dates to enable it to consider the amended application, amend its facts and contentions and consider what additional evidence it will need to lead. The Respondent previously demonstrated a willingness to have the matter heard before the end of this year, and I note that a number of its witnesses will have made plans to ensure their availability. In circumstances where the Respondent was clearly taking all necessary steps to prepare for the commencement of the hearing at the end of November, I find that their request for an adjournment is reasonable and motivated only by a desire to properly and fairly meet the amended case against it. -- 9 of 10 -- 10 [38] While I note that the Respondent is well resourced and the Applicant's submissions that the Respondent should have no issue in undertaking the necessary steps to maintain the trial dates, I find two arguments of the Respondent compelling in determining to vacate the current dates: firstly, I understand the position of the Respondent that it has a responsibility to spend public monies responsibly and that it would not have been prudent to commence preparation for a changed application when leave had not been granted for such changes. The second is that in this case where the matter requires the consideration of civil penalty provisions, there is a heightened need for consideration regarding the Respondent's submissions that it must be given proper opportunity to respond to the case against it. [39] This is not a case where the hearing is so imminent that there is a great issue of costs thrown away or significant inconvenience to either party. It seems to me that the greatest prejudice to the parties is that we find ourselves in the situation where this matter which already has a long and reasonably complex history will experience further delay. However, the Respondent has requested the delay and the Applicant confirmed at the hearing that while it is strongly of the view that the Respondent should be able to prepare itself in time to maintain the sitting dates, its preference was to amend the application, even if that meant a delay to the hearing of the substantive matter. [40] The application to amend the application and the associated statement of facts and contentions is granted. The objection to the application is dismissed. The hearing dates commencing on 23 November 2022 are vacated. [41] The parties have shown a willingness to cooperate in the drafting of proposed directions in relation to this interlocutory matter and I ask that the parties consider what further directions I should make to progress the matter from here. While the Commission has availability to hear the matter before the end of the year, I believe that dates in December may prove difficult for representatives and witnesses. I understand that the parties will work together to identify dates in the early part of 2023 where the matter can be heard. [42] I thank the parties for the quality of the written submissions and the oral arguments regarding this matter. I also appreciate the practical approach to dealing with the other matter which was before us, being the disclosure argument, by consent. Orders [43] I make the following orders: 1. The Applicant's application dated 23 September 2022 to amend its statement of facts and contentions is allowed. 2. The hearing dates of 23, 24, 25 and 28 November 2022 are vacated. -- 10 of 10 --