Nash v State of Queensland (Queensland Corrective Services) - [2022] QIRC 434

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION_:	Nash v State of Queensland (Queensland Corrective Services) [2022] QIRC 434
PARTIES:	Nash, Denise (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent)
CASE NO.:	PSA/2022/685
PROCEEDING:	Public Service Appeal – Conversion to higher classification level
DELIVERED ON:	9 November 2022
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	The Appellant's application for a longer period to start her appeal is refused.
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant was reviewed under s 149C of the Public Service Act 2008 (Qld) – where appeal lodged out of time – whether extension of time should be granted – extension of time not granted
LEGISLATION:	Industrial Relations Act 2016 (Qld), s 564 Public Service Act 2008 (Qld), ss 149C and 194
CASES:	A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Chapman v State of Queensland [2003] QCA 172 Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138 Wantling v Department of Community Safety (Queensland Corrective services) [2013] QIRC 43

Reasons for Decision

Ms Denise Nash ('the Appellant') is substantively employed by the State of Queensland (Queensland Corrective Services) ('the Respondent') as an AO3 Sentence Planning Advisor at Woodford Correctional Centre.
The Appellant has been acting in a higher classification role as an AO4 Sentence Planning Coordinator continuously since 6 August 2018 ('the position').
On 16 March 2022, the Appellant submitted a request to be permanently appointed to the position, pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act').
By letter dated 12 April 2022, Ms Samantha Newman, Acting Deputy Commissioner, Community Corrections and Specialist Operations, informed the Appellant that she had determined not to appoint the Appellant to the position due to the genuine operational requirements of the agency ('the decision').
By appeal notice filed on 19 July 2022, the Appellant appealed against the decision, pursuant to s 194 of the PS Act.

Within the appeal notice, the Appellant applies for an extension of time to lodge the appeal. The jurisdictional issue must first be determined as to whether an extension of time should be granted for the filing of the appeal.
For the reasons contained herein, an extension of time is not granted.
Reasons for delay
The Appellant outlined the following reasons for the delay in filing the appeal:
I was waiting for the incumbent to return to the position on 1 July 2022 as advised in attached correspondence dated 12 April 2022. The incumbent did not return on 1 July 2022 and they have been further extended in their current position until June 2023.

Legislative framework

Section 564 of the IR Act provides for the time limit for appeal:
564 Time limit for appeal

Details

AGLC: Nash v State of Queensland (Queensland Corrective Services) [2022] QIRC 434
Case: [2022] QIRC 434
Decision Date: 9 November 2022

CaseChat Overview and Summary

Nash, the appellant, brought an appeal against the State of Queensland (Queensland Corrective Services), the respondent, to the Industrial Relations Commission of Queensland. The appellant sought an extension of the statutory time limit to lodge her appeal against the respondent's decision to not appoint her to a specific position within the respondent's organisation. The appeal was lodged 78 days after the decision was made, well beyond the 21 day statutory time limit.

The court was required to determine whether the appellant's appeal should be granted an extension of time to be filed, beyond the statutory 21 day limit. The court was required to consider whether the justice of the case required the extension of time, whether the appeal had prospects of success, and whether there was an explanation for the delay in lodging the appeal. The court was also required to consider the relevant statutory provisions and relevant case law in making its determination.

The court found that the appellant's delay in lodging the appeal was significant and not adequately explained. The court found that the appellant had not demonstrated that the justice of the case required an extension of time, that the appeal had prospects of success, or that there was a compelling reason for the delay in lodging the appeal. The court found that the statutory time limit should only be departed from in the most compelling of circumstances, and that such circumstances did not exist in this matter. The court found that to allow an extension of time in these circumstances would be to frustrate the parliamentary intention to provide for a 21 day time limit.

The appellant's application for a longer period to start her appeal is refused.

Orders

Orders of the court

The Appellant's application for a longer period to start her appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe. Conclusion In circumstances where the statutory time period is 21 days, the delay of 78 days in filing this appeal is significant. To allow an extension of time in circumstances in which the appeal was only filed following external decisions made at a later date would be to frustrate the parliamentary intention to provide for a 21 day time limit. As considered in Wantling v Department of Community Safety (Queensland Corrective services),[10] the statutory time limit should only be departed from in the most compelling of circumstances. I am not persuaded that such circumstances exist in this matter. [10] [2013] QIRC 43. In consideration of the above factors, I do not consider that there are reasonable grounds to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act. I make the following order:The Appellant's application for a longer period to start her appeal is refused.

Ratio Decidendi

Legal Principle Established

The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[4]Consideration[4] Ibid.Explanation for delay The decision relevant to this appeal was made on 12 April 2022. The appeal was filed on 19 July 2022 and was therefore filed 78 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory timeframe. The Appellant submits that the appeal was lodged 'less than 21 days after the incumbent's extension was confirmed'. Section 564 of the IR Act provides that the 21 day time period commences upon receipt of the decision to be appealed and is not referable to any other decisions. On the appeal notice, the Appellant states that she was 'waiting for the incumbent to return to the position on 1 July 2022 as advised'. The Appellant further notes that 'the incumbent did not return on 1 July 2022 and they have been further extended in their current position until June 2023'. The Appellant only made the decision to file the appeal after the Appellant was made aware of the incumbent's secondment extension a number of months after receipt of the relevant decision. This is not an acceptable reason for failing to file an appeal within the statutory time period. The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter. Prospects of success A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted. The Queensland Court of Appeal considered this point in Chapman v State of Queensland,[5] stating:…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[6][5] [2003] QCA 172.[6] Ibid [3]. The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[7] Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below. [7] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35. Ms Newman outlined the following reasons in the decision to not appoint the Appellant to the position:I have considered your request and have determined that, due to the genuine operational requirements of the agency which includes the position having an appointed substantive occupant, you will not be appointed to the position of AO4 Sentence Planning Coordinator (736635). With regard to this, I also note that the incumbent is due to return to the position on 1 July 2022.