Jones v Queensland Health
[2010] QCAT 700
•16 December 2010
| 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 |
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, internal grievance processes, two workers compensation claims and one associated appeal to the Queensland Industrial Relations Commission, a number of fair treatment appeals in the Public Service Commission, and the current process instituted by Queensland Health which may lead to what the parties call ‘ill health retirement’ under Part 7 of the Public Service Act 2008.
Although the application filed in QCAT for Ms Jones on 10 November 2010 seeks an ‘…injunction to prevent my employer retiring me form my role on the basis of ill health’, submissions at the hearing on 2 December 2010 from Ms Jones’ counsel made it clear the application was one for interim relief of the kind arising under s 144 of the ADA, which provides:
144 Applications for orders protecting complainant’s interests (before reference to tribunal)
(1) At any time before a complaint is referred to the Tribunal, the complainant or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice –
(a) The investigation or conciliation of the complaint; or
(b) An order that the Tribunal might make after a hearing.
(2) A party or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order varying or revoking an order made under subsection (1).
(3) If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.
A right to relief under the section rests, firstly, on the existence of a ‘complaint’ to the Anti-Discrimination Commissioner: ADA Chapter 7, Part 1, Division 1, Subdivision 1. A decision of the President of QCAT’s predecessor Tribunal, the Anti-Discrimination Tribunal Queensland, suggested that the section can only apply to a valid complaint – i.e., one which is been accepted by the Commissioner under s 141[1]. This section is intended to protect, primarily, the interests of a complainant before reference of the complaint to QCAT. Only an accepted complaint can be referred to this Tribunal: Hopper v Mount Isa Mines Limited [1999] 2 Qd R 496, at 498-9.
[1] Simpson v Welsh and Queensland Police Service [2002] QADT 17 at paras [13] and [14] per Sofronoff QC; and, also see MIM v Hopper (1998) QSC 287 per Moynihan SJA
The applicant has three complaints with the Commission, one of which, dated 6 July 2009, alleges discrimination in the area of work. It was accepted by the Commission in early June 2010. Later in June the Commission agreed to extend that complaint so it would also be categorised as alleging sexual harassment, sex discrimination and victimisation in the area of work, but called upon Ms Jones to show good cause why some ‘out of time’ aspects of it should be accepted. The parties have subsequently responded with submissions and, in due course, the Commission will give its decision. The Commission has also, it appears, accepted a complaint lodged in October 2009 in connection with the ‘ill health retirement’ process which had, by that time, been initiated and the applicant informed of it. It has been accepted as a complaint of impairment discrimination, and victimisation.
Previous decisions of the Queensland Anti-Discrimination Tribunal have, in applying s 144, had regard to the principles used in applications for interlocutory injunctions. In Anderson & Anor v Australian Meat Holdings Pty Ltd [1997] QADT 25 the presiding Member, Ms C E Holmes (as Her Honour then was) said:
S 144 enables the making of an order prohibiting a person from doing an act that might prejudice an order which the Tribunal might make after a hearing. The rules of the Supreme Court may be applied. There is no prescription as to how the Tribunal is to use its discretion under that section, but the general practice of this Tribunal has been to adopt the common law approach of considering whether there is a serious question to be tried and then considering the balance of convenience.[2]
[2] And, see Brackenreg v Queensland University of Technology [1999] QADT 11, at pp 6,9 and 10; and, also see Proust, Secretary to the Attorney-General’s Department v President of Equal Opportunity Board & Ors (1990) EOC 92-275
The two main enquiries relevant to an application for an interlocutory injunction are well settled: has the applicant made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at trial the applicant will be held entitled to relief; and, the balance of convenience – namely, whether the inconvenience or injury which the applicant will be likely to suffer if an injunction is refused outweighs, or is outweighed, by the injury which the respondent would suffer if an injunction were granted?[3]
[3] Australian Broadcasting Corporation v O’Neill Laboratories Pty Ltd (2006) 227 CLR 57 at 82
In its submissions here Queensland Health did not contend that there was no prima facie case. It did argue, however, that the balance of convenience tells against Ms Jones because an order would mean that the employer is prevented from continuing with a lawful statutory process, during which the applicant must be afforded procedural fairness; that there is medical evidence supporting the respondent’s position, and the advancement of that process; that the history of the matter suggests any return to work by the applicant would be ‘problematic’ and, in truth, no appropriate positions are available for her; that the effect would be the continuation of the present, unworkable situation; that relations between the parties are at such a low ebb that an actual return to employment with the respondent at any time is improbable; and, that no undertaking as to damages has been proffered.
The suggestion that an undertaking should be offered by an applicant is an example of an apparent difference between the discretion arising in an application for injunctive relief, and one brought under s 144. In Whalley v Thiess Pty Ltd [2003] QADT 6 the President of the ADTQ at the time took the view that the absence of any undertaking from the complainant was a material factor in refusing relief under s 144, and spoke of it as ‘…the invariable practice in every jurisdiction to require such an undertaking as the price of interim relief’.
As he also observed, however, there is no rule of law binding upon this Tribunal which requires such an undertaking to be offered and this is a ‘specialist jurisdiction’ and considerations may emerge in cases here that do not exist in other jurisdictions. I agree, with respect. There is nothing in the relevant part of Chapter 7 of the ADT suggesting that an undertaking of this kind is an essential, or even a necessary, condition to the granting of relief under s 144.
The section is self-contained. It uses the words ‘might prejudice’ in a context which suggests that the only question material to an application under the section is whether there is, or is not, a material risk of prejudice of a kind which might affect the things mentioned in s 144(1)(a) or (b). ‘Prejudice’ is plainly used in its ordinary meaning, as a transitive verve: ‘…to affect disadvantageously or detrimentally’[4].
[4] Macquarie Dictionary, 5th Edition, page 1310
The only relevant question is, then, whether or not the material establishes that the ‘ill health retirement’ of Ms Jones might prejudice the investigation or conciliation of her complaint, or an order that QCAT might make after a hearing.
The welter of affidavit material from Queensland Health raises the questions whether Ms Jones is fit to return to work, and whether she could return to her former employment with Queensland Health or something like it. This may affect the form of relief she might obtain if she succeeds, but it is too early to say that this evidence extinguishes the possibility of an order that she be reinstated to her former position, or reduces her prospects of obtaining that kind of order to the level of unlikelihood, or improbability.
For her part, she has been on part-pay from her employer for some time and swears that she will suffer measurable prejudice, through financial hardship, if her employment is terminated – prejudice in the conciliation of her complaint in the Commission and, if necessary, proceedings in this Tribunal. She also requires further medical treatment including surgery and must also, of course, support herself. Against that, of course, the employer should not be compelled to keep paying her only so that she can fund her proceedings against it.
More forcefully, it is argued for her that the termination of her employment could also have the effect of reducing the benefit of, or making otiose, the orders the Tribunal might ultimately make in her favour including, in particular, orders reinstating her. That must be a material, and compelling, consideration: the philosophy behind the ADT is one of righting discriminatory conduct, and providing justice to the victims of it. It is too early, of course, to say that the applicant will necessarily succeed but it cannot be argued that her case is without substance, and to take the risk of denying her an important remedy permitted under the legislation would be a very serious thing – something which, on its face, s 144 is designed to prevent.
The primary inconvenience for the respondent, if relief is granted, is the obligation to retain the applicant as an employee. For the applicant, however, the inconvenience of losing that employment while proceedings are pending is, on balance, quite a grave one.
The applicant’s material shows two particular, potential areas of prejudice: difficulty advancing her complaint through the investigation and conciliation stages, and in the Tribunal, if her employment and her income from it cease; and, a constraint upon the range of relief which might be open to her if she ultimately succeeds. Both risks may readily be categorised as things giving rise to prejudice, to the requisite degree.
For these reasons, relief under s 144 should be granted. I will hear from the parties about the appropriate form of order.
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