Jones v Queensland Health - [2010] QCAT 700

CITATION:

Jones v Queensland Health [2010] QCAT 700

PARTIES:	Tamara Cecile Jones (Applicant)
v
Queensland Health (Respondent)

APPLICATION NUMBER: ADL127-10

MATTER TYPE:

Application for Interim Relief

HEARING DATE: 2 December 2010

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 16 December 2010

DELIVERED AT: Brisbane

ORDERS MADE:  1. The Respondent is prohibited from further
  exercising its powers under Chapter 5, Part
  7, in particular section 178, of the Public
  Service Act 2008 until the applicant’s
  discrimination complaint dated 6 July 2009
      has been heard and determined in the
  Queensland Civil and Administrative
  Tribunal, or until further order.

2. The matter is listed for a Directions Hearing
in February 2011, at date and time to be
advised to parties by the Tribunal.

CATCHWORDS :

INTERLOCUTORY INJUNCTION – INJUNCTION TO PRESERVE STATUS QUO PENDING DETERMINATION OF RIGHTS – Anti-Discrimination Act 1991, s 144 – MEANING AND EFFECT – where applicant commenced proceedings against the respondent in the Queensland Anti-Discrimination Tribunal – where the respondent is considering retiring the applicant from service on the grounds of ill health – where the applicant seeks an interlocutory injunction to prevent the undertaking of this action until the determination of her complaints are finalised – whether balance of convenience favours granting of injunction to preserve status quo

Anti-Discrimination Act 1991, s 144
Public Service Act 2008
Anderson & Anor v Australian Meat Holdings Pty Ltd [1997] QADT 25, applied
Australian Broadcasting Corporation v O’Neill Laboratories Pty Ltd (2006) 227 CLR 57, cited
Brackenreg v Queensland University of Technology [1999] QADT 11, cited
Hopper v Mount Isa Mines Limited [1999] 2 Qd R 496, cited
MIM v Hopper (1998) QSC 287, cited
Proust, Secretary to the Attorney-General’s Department v President of Equal Opportunity Board & Ors (1990) EOC 92-275, cited
Whalley v Thiess Pty Ltd [2003] QADT 6, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	M Spry of Counsel instructed by Ms Susan Moriarty
RESPONDENT:	C J Murdoch of Counsel instructed by Minter Ellision Lawyers

REASONS FOR DECISION

Ms Jones has been employed by Queensland Health since August 2005. She alleges that, in March 2007, she was sexually assaulted by another employee and has, since that time, been discriminated against and victimised by management within Queensland Health.

She also alleges that she has since asked to be returned to her substantive position on numerous occasions but Queensland Health has failed to do so; rather, it has now informed her that it is considering retiring her from service on the grounds of ill health – specifically, mental illness or disability, an allegation she strenuously denies. The application I am now considering seeks to stop that process until proceedings brought by Ms Jones under the Anti-Discrimination Act 1991 (ADA) are finalised. They involve a discrimination complaint.

There have actually been a variety of other proceedings since 2007 which, as the very large affidavits filed for both parties show, have served to complicate and harden relations between the parties. Those proceedings include three discrimination complaints,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 700
Decision Date: 16 December 2010

CaseChat Overview and Summary

In the matter of Jones v Queensland Health, the applicant, Ms Jones, sought an interlocutory injunction to prevent her employer, Queensland Health, from retiring her on the grounds of ill health. The dispute arose out of a broader legal proceeding against Queensland Health in the Queensland Anti-Discrimination Tribunal, where Ms Jones had lodged complaints of discrimination. The Federal Circuit and Family Court of Australia was tasked with determining whether an injunction should be issued to preserve the status quo until the finalisation of her complaints in the Tribunal.

The legal issues before the court involved interpreting the meaning and effect of section 144 of the Anti-Discrimination Act 1991, which allows for the preservation of status quo pending the determination of rights. The court needed to weigh the balance of convenience in favouring the grant of an interlocutory injunction, considering the potential detriment to Ms Jones if she were to be retired during the pendency of her complaints, against the interests of Queensland Health in managing its workforce and addressing concerns about employee health.

The court considered the potential prejudice to Ms Jones if the injunction was not granted, which could include loss of income, reputational harm, and the inability to address the underlying discrimination claims effectively. The court also weighed the public interest in maintaining a fair and efficient workplace, and the need to balance the rights of both parties. Ultimately, the court determined that the balance of convenience favoured the grant of an interlocutory injunction, preserving the status quo until the resolution of Ms Jones' complaints in the Tribunal. The court concluded that the risk of irreparable harm to Ms Jones outweighed the respondent's interests in proceeding with the retirement.

The final orders of the court were that an interlocutory injunction be granted, restraining Queensland Health from retiring Ms Jones from service on the grounds of ill health until the determination of her complaints in the Queensland Anti-Discrimination Tribunal. This decision ensures that Ms Jones can continue to pursue her claims without the additional burden of potential job loss, and it maintains the status quo until the underlying issues are resolved.

Orders