Dallow v Queensland Police Service [2004] QIRC 3 (2004) 175 QGIG 235

23 January 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 235 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 53 – application for payment instead of long service leave John Dennis Dallow AND Queensland Police Service (No. B1614 of 2003) VICE PRESIDENT LINNANE 9 January 2004 REPORT ON DECISION (as edited) In giving her decision from the Bench on 31 October 2003, Vice President Linnane stated: “Mr Dallow lodged the current application for payment instead of the taking of his long service leave entitlement on 2 October 2003. On 7 October 2003 a Directions Order was issued from the Registry. That Directions Order indicated that this matter would be heard by telephone before the Commission as presently constituted at 11.15 a.m. on 22 October 2003. On 21 October 2003 a letter was received in the Registry headed ‘Request for Disqualification’. I have accepted that correspondence as an application to have me disqualify myself from ‘taking further part in this new application’. -- 1 of 2 -- 236 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 January, 2004 There was a hearing of an earlier application by Mr Dallow on 26 August 2003 in respect of the payment of long service leave entitlement in lieu of the taking of such leave (No. B1248 of 2003). On that day the matter was adjourned to enable Mr Dallow to provide the Commission with receipts for medical expenses which he claimed he had incurred. The matter was then re-listed for further hearing on 2 September, 2003. No receipts were received in the Registry. On 1 September, 2003 the Registry received correspondence, on Queensland Police Service letterhead, from Mr Dallow. The subject of the correspondence is said to be ‘Withdrawal – Application for Payment of Long Service Leave’. The correspondence then goes on to provide that: ‘1. On 1 August 2003 I filed an Application for Payment of Long Service Leave with the Queensland Industrial Relations Commission (QIRC). Case No. B1248/2003 refers. 2. On 26 August 2003 a hearing was commenced, however was not completed on this date as further evidence was requested by Vice- President LINNANE. The matter was adjourned until 2 September 2003 at 4.30pm. 3. I seek to withdraw my application and take no further part in these proceedings at this time.’. In correspondence received in the Registry on 21 October 2003 Mr Dallow states his grounds for seeking my disqualification as follows: ‘On 1 August 2003 I filed an Application for Cash Payment of Long Service Leave with the Q.I.R.C. (Case B1248). This hearing was held by telephone at 11.30am on 26 August 2003 with Vice-President LINNANE. Amongst other things the Vice-President stated that she would make a decision giving me no more than 100 days of the 160 days for which I had applied, if and only if, I could provide receipts to cover my additional expenditures over the past two years. At this point we both agreed that the application should be adjourned for a week so that I could attempt to locate those documents. I subsequently withdrew this application. My fresh application (B1614) is based largely on the same grounds. I believe that I have demonstrated the requisite grounds for financial hardship and that my circumstances are deserving of compassion. Obviously the Vice-President has already made a decision about this evidence and prejudged my previous application. I believe this to be totally partial and request that the Vice-President disqualify herself from taking any further part in this new application. I have enclosed the served Directions Order dated 7 October 2003 so that a determination can be made with a view to amending paragraph 6 to have my application heard by a different Officer of the Commission.’. The application currently before me is identical in all respects, bar one, to the application withdrawn by Mr Dallow in his correspondence dated 1 September, 2003. The only difference in the applications is the addition of the following sentence – ‘A review of the month of August invoices for payments shows accounts to the amount of approx. $3,318.00 (Loan Interest, Credit Card Payment & Cash) and income (pay to CBA plus direct debit to Police Credit Union) to the amount of $3,362.85.’. I dismiss the application to disqualify myself. There is no legal basis for the application. Mr Dallow was given the opportunity to be heard and to adequately present his case in B1248 of 2003. Mr Dallow did not await any outcome of that application. He was asked for supporting documentation for the claims he made in evidence before me and/or an affidavit to the effect that he was unable to obtain this information from either Medicare or his medical benefits provider. On that occasion I further indicated that I was not prepared, in the exercise of the discretion vested in the Commission under s. 53(4) of the Industrial Relations Act 1999, to make any order that would leave Mr Dallow with no entitlement to long service leave. I did however indicate that I was prepared to look at a payment in respect of 100 days of long service leave entitlement provided supporting documentation was provided in respect of his claims about medical expenses incurred and the need for a spa to be installed in his home to help alleviate an arthritic condition diagnosed some two years earlier. Mr Dallow did not avail himself of the opportunity of providing that supporting documentation. Mr Dallow decided to withdraw his application the day prior to the re-listing of the matter. The application for disqualification appears to be simply an attempt by Mr Dallow to have his application determined differently. That is not a basis for disqualification. The fact that a judicial officer has decided an issue in a particular way and is likely to decide it in the same way when it arises again, does not, give rise to a reasonable perception that a party will be unfairly tried so as to require disqualification of the judicial officer for bias: see Fitzgerald v. Director of Public Prosecutions (1991) 24 NSWLR 45. In this case the matter did not get to final determination because Mr Dallow decided to withdraw his application. The matter had been re-listed for further hearing on the day following the withdrawal of his application i.e. 2 September 2003. The application to disqualify myself from further hearing this matter is dismissed.”. Order Accordingly. Dated 9 January 2004. By the Commission, [L.S.] G.D. SAVILL, Acting Industrial Registrar. Appearances: Mr J.D. Dallow on his own behalf. -- 2 of 2 --