Smith v State of Queensland (Queensland Police Service)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Smith v State of Queensland (Queensland Police Service) [2025] QIRC 295
PARTIES:	Smith, Sarah Applicant v State of Queensland (Queensland Police Service) Respondent
CASE NO:	TD/2024/32
PROCEEDING:	Application for an extension of time to file an application
DELIVERED ON:	31 October 2025
HEARING DATE:	9 June 2025
MEMBER: HEARD AT:	Pratt IC Brisbane
ORDERS:	1. The application to extend time for filing is dismissed. 2. The application TD/2024/32 is dismissed for want of jurisdiction.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – APPLICATION IN EXISTING PROCEEDINGS – where the respondent dismissed applicant for failing to comply with direction to receive COVID-19 vaccinations – where applicant brought application for reinstatement 269 days out of time – consideration of principles applicable to extension of time applications – held length of delay significant – held no satisfactory explanation for the delay – held prospects of success a neutral consideration – held prejudice to applicant if the extension of time is not granted – held prejudice to the respondent if the extension of time is granted – held conduct of respondent a neutral consideration – application dismissed.
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), s 317(2)(a), s 317(2)(b), s 320 Human Rights Act 2019 (Qld), s 17(c), s 58(1) Police Service Administration Act 1990 (Qld), s 4.9 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 123 Drage v State of Queensland (Queensland Health) [2023] ICQ 22 Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074 Duck v State of Queensland (Department of Education) [2022] QIRC 347 Erhardt v Goodman Fielder Food Services Ltd (1999) 163 QGIG 20 Goodchild v State of Queensland (Queensland Health) [2025] QIRC 46 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Jones v Dunkel (1959) 101 CLR 298 Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131 Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129 Rich v Chubb Protective Services [2001] ICQ 24 Sophron v The Nominal Defendant (1957) 96 CLR 469 Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43 Weaver v Ipswich City Council [2021] QIRC 234 Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294
APPEARANCES:	Mr J McDonald of Sibley Lawyers for Ms Smith. Mr T A Spence of counsel, instructed by Ms S Gray of Crown Law for the Respondent.

Reasons for Decision

This matter concerns an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('IR Act'). However, the application was filed outside the 21 day limitation period imposed by s 317(2)(a) of the IR Act. Ms Smith was dismissed by letter on 20 June 2023, meaning the 21-day limitation period expired on 11 July 2023. Ms Smith filed her application for reinstatement on 5 April 2024, making it 269 days, or just under 9 months, outside of the allowable time for filing.
Background
Ms Smith was dismissed after a process which involved opportunities for her to show cause and a finding that she was guilty of misconduct. The misconduct finding was that Ms Smith engaged in "improper conduct in an official capacity by contravening, without reasonable excuse, a direction given" by not following directions made under s 4.9 of the Police Service Administration Act 1990 (Qld) to receive vaccinations for COVID-19. The directions, which were Instrument of Commissioner's Direction No. 12 and Instrument of Commissioner's Direction No. 14 ('Directions'), were made in response to the COVID-19 related public health emergency that was declared on 29 January 2020 pursuant to the Public Health Act 2005 (Qld).
Ms Smith's reasons for not complying with the Directions were neatly summarised by her within an email sent to her solicitors. In that email, Ms Smith said she refused to receive the vaccine because of her strong beliefs about medical procedures and intervention as well as the use of, and ingestion of, animal products including human embryos.
There was a process where Ms Smith was asked to show cause for both the finding of misconduct and for why she should not be dismissed. The Respondent ('QPS') considered Ms Smith's responses in the show cause process and subsequently dismissed Ms Smith by letter dated 20 June 2023.
Ms Smith's submission says that on or around the date of dismissal she sought legal advice on prospects of pursuing reinstatement. That advice was provided in writing. It is unclear on the face of the advice when exactly it was provided, but it is obvious that the letter was written after the dismissal because it discusses the fact that Ms Smith had been dismissed. In her affidavit, Ms Smith deposes that she contacted the solicitors who gave that advice on 18 June 2023 and that it was 4 July 2023 when she received the letter of advice.
At the time Ms Smith received the advice on 4 July 2023 there was still a week left to file an application before time ran out. Ms Smith deposes to knowing at the time she was dismissed that there was a 21-day limitation period within which to formally challenge the dismissal. The limitation period was mentioned in the dismissal letter and again in the letter of advice.
Ms Smith says the advice she received from her solicitors was, in summary, that formally challenging her dismissal had low prospects. The solicitors noted in the advice that numerous cases across the country had considered the lawfulness of a direction to be vaccinated, and that all of those cases found that those directions were lawful. The solicitors advised Ms Smith she would likely experience the same result if she challenged the dismissal in the Queensland Industrial Relations Commission ('Commission').
Ms Smith says that the legal advice did not mention that there was a case challenging the lawfulness of the Directions which was yet to be decided. The case Ms Smith is referring to is the judgment of his Honour, Martin SJA, delivered on 27 February 2024 in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) ('Johnston').[1]
[1] [2024] QSC 2 ('Johnston').
After considering her legal advice, Ms Smith decided to "give up and stop fighting a losing battle" and to move on with her life. Ms Smith says that at the time she was not aware that she could have filed an application within the statutory time limit and ask that the matter not be decided until the outcome of the proceedings before the Supreme Court of Queensland in the above-mentioned case of Johnston. Ms Smith deposes to not even knowing those challenges in the Supreme Court were on foot, much less knowing there was potential to argue in the Commission that her human rights had also not been considered in the way Johnston examined.
Ms Smith says she became aware of the decision in Johnston on or about 27 February 2024. Upon discovering the Court findings that the Directions were unlawful, Ms Smith says that she renewed her enquiries with legal advisors, at a different firm, on 28 February 2024. Those lawyers advised Ms Smith on 21 March 2024 to commence proceedings challenging the dismissal in the Commission "as soon as possible". An application was prepared, settled and then filed in the Commission on 5 April 2024.
The test for extension of time applications
Section 317(2)(b) of the IR Act empowers the Commission with a discretion to extend the time in which to file applications. In Goodchild v State of Queensland (Queensland Health),[2] O'Neill IC recently set out the well-settled authorities on what the correct test for extension of time applications is, which I have relied on in formulating my reasons below, and summarise as follows:
[2] [2025] QIRC 46, [10]-[16].
(a)Brisbane South Regional Health Authority v Taylor is authority for the rule that the applicant must establish that the justice of the case warrants an extension of time.[3]
[3] (1996) 186 CLR 541.
(b)In Rich v Chubb Protective Services,[4] his Honour, Hall P considered the equivalent provision to s 317(2) of the IR Act and observed that the statutory limitation period should be respected, even though doing so might at times defeat a perfectly good case.
[4] [2001] ICQ 24.
(c)In Erhardt v Goodman Fielder Food Services Ltd ('Erhardt'),[5] her Honour, Linnane VP, observed that the matters that need to be taken into account when deciding whether to exercise the discretion to extend time were:
[5] (1999) 163 QGIG 20 ('Erhardt').
(i)the length of the delay;
(ii)the explanation for the delay;
(iii)the prejudice to the applicant if the extension of time is not granted;
(iv)the prejudice to the respondent if the extension of time is granted; and
(v)any relevant conduct of the respondent.
Her Honour explained that the discretion was unfettered and that the limitation period must be respected. Her Honour also noted that prospects of success are relevant in that where it appears there are poor prospects, that should weigh against an exercise of the discretion.[6]
(d)In Wantling v Department of Community Safety (Queensland Corrective Services) (Wantling'),[7] his Honour, O'Connor DP, as his Honour then was, also observed that the limitation period "should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties". His Honour further added that it "is essential for the proper administration of justice that these matters are heard and determined as quickly as possible".[8]
[6] Ibid, following Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131.
[7] [2013] QIRC 43 ('Wantling').
[8] Ibid, [57]-[60].

Consideration
The length of the delay

The delay in filing this application is almost 9 months. In my view, that is a significant delay on any objective assessment.
Ms Smith submits that the observations of his Honour, Davis P, in Drage v State of Queensland (Queensland Health)[9] are relevant to this case. Those observations were, "[t]here will be cases where it is inappropriate to grant an extension of one day, and there will be cases where it will be appropriate to grant an extension of time of months".[10] Ms Smith argues that although the delay is significant, this is a case where an injustice will occur if no extension is granted. That fact, coupled with the explanation for the delay and the merits of Ms Smith's substantive reinstatement application, weigh heavily in favour of an extension of time is Ms Smith's submission.
[9] [2023] ICQ 22.
[10] Ibid [37].
I accept that there will be cases where even a lengthy delay can be the subject of an exercise of the discretion to extend time. Cases where there is representative error for which the applicant is entirely blameless are an example.[11] For reasons I set out below, I find that this is not such a case, however. Ms Smith has not argued that the fault lies entirely with her legal advisors. Nor could she in my opinion. Ms Smith's submission about her legal advice is that it did not alert her to Johnston being on foot, or the strategy of filing an application and seeking its adjournment pending the outcome in Johnston. But Ms Smith does not go so far as to assert that that constituted some sort of representative error causing her to be blameless with respect to the delay.
[11] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 351 citing Sophron v The Nominal Defendant (1957) 96 CLR 469, 474.
Here, Ms Smith's argument is essentially that, despite the lengthy delay, it is obvious that from this early vantage point an injustice will result if the discretion to extend time is not exercised. This point is based upon an argument that Ms Smith's relevant human rights were not considered properly, or at all, at each stage of the disciplinary process, including the dismissal.
Explanation for the delay
Before the limitation period expired, Ms Smith, who was aware of that limitation period, decided not to challenge the dismissal. She decided so partly because of the legal advice she received that her prospects of success were low. However, Ms Smith says that she did not know that there was a chance that her prospects of success could improve pending the outcome of Johnston.
The written legal advice that Ms Smith received on 4 July 2023 is in evidence. The advice, after considering a number of what were recent pertinent decisions, concluded that "[i]t is our view that prospects of contesting your termination through the QIRC are low". Ms Smith's then solicitors offered the option of "defending the proceedings", which I construe as meaning challenging the dismissal by way of filing an application for reinstatement. The solicitors also advised Ms Smith that "[o]ur first advice is to take steps regarding an unfair dismissal application as soon as possible. The basis for this advice is it is easier to reinstate a person who has only been recently terminated rather than a person who has been terminated for a long period of time."
Although the advice was that Ms Smith's prospects were low, the solicitors made it clear that if Ms Smith did want to challenge the dismissal, she needed to do so quickly and within the 21 day limitation period. Ms Smith declined to do so based on the view that her prospects of success were low. QPS submits, and I accept, that in declining to pursue an application for reinstatement, Ms Smith exercised a choice. It was a conscious, and I find, carefully made decision, by Ms Smith at the relevant time, having regard to legal advice indicating her prospects were low.
Ms Smith says that Johnston was the catalyst in her mind for getting things moving again. The release of that decision prompted Ms Smith to obtain further legal advice and to ultimately file the application for reinstatement. Ms Smith says that before then she had not been advised and did not know of the possibility that a case like Johnston was in the making.
I do not accept Ms Smith's evidence on this point. There is a précis of a number of cases that Ms Smith's then solicitors relied on in formulating the advice that is attached to, and expressly referred to in, the legal advice. That attachment is 'Attachment A'. The final paragraph of Attachment A to the legal advice reads:
Other Queensland Cases
There are a further two cases which have been filed in the Queensland Supreme Court challenging the mandatory vaccination order of the Queensland Police Commissioner which are still, in 2023, yet to be determined.
I do not accept Ms Smith's assertions that she did not know about a potential case challenging the lawfulness of the Directions at the time she received the legal advice on 4 July 2023. Attachment A clearly stated that two such cases were on foot.
Furthermore, Ms Smith received the advice well within the 21-day limitation period. There was still a week to go before Ms Smith ran out of time to file an application for reinstatement. Her then solicitors also made it clear that time was of the essence and that they stood ready to act and file the application for reinstatement if Ms Smith instructed them to do so.
On my assessment, Ms Smith made an informed decision at the time she received her advice. I find that Ms Smith weighed that advice carefully, including the advice that if she wished to challenge her dismissal she needed to do so swiftly. Whatever change in the landscape Johnston has brought about, it is clear to me that Ms Smith made an informed choice to allow her right to challenge the dismissal within the 21-day limitation period to lapse. Ms Smith regrets that choice, believing that her prospects are improved now that she might have been able to argue the sort of case that the applicants ran in Johnston.
I accept QPS' submission on this Johnston issue that Ms Smith's argument amounts to little more than ignorance of the law. Even if Ms Smith was not aware that Johnston or a case like Johnston was afoot, a fact which I do not accept, I am not persuaded that such a lack of awareness would constitute a satisfactory explanation for the delay. Not knowing of a particular legal strategy or a particular case theory, or of the potential for a case that is before a court which might have an impact on one's prospects, does not constitute a satisfactory explanation for the delay in my opinion.
QPS, in making its submissions on this point, relied on Williams v State of Queensland (Queensland Ambulance Service) ('Williams').[12] In Williams, Caddie IC determined a similar case where the publication of Johnston prompted the applicant to file an application out of time, believing that the decision in Johnston had a dramatic and positive impact on his prospects of success.[13] When considering the issue of explanation for the delay, Caddie IC held that "waiting and seeing" what happened in Johnston was not an adequate explanation for the delay, nor was it an effective way of securing one's rights.[14]
[12] [2024] QIRC 294.
[13] Ibid [1]-[6].
[14] Ibid [15], [18].
Ms Smith argues that QPS' reliance on Williams is misconceived because that decision dealt with different directions pertaining to the Queensland Ambulance Service. Ms Smith also argues Williams turned on different key facts, such as the relevant direction not being proven to have been authorised by an implied term in the employment contracts.
QPS' reliance on Williams is appropriate in my opinion. Williams is authority for the notion that the "wait and see" approach to filing an application for reinstatement does not provide a satisfactory explanation for a delay in filing the application. True, Williams did turn on different directions and different facts. However, no reliance was placed by QPS on those aspects of Williams. The Respondent only relied on Williams as authority for the notion that allowing a limitation period to pass without filing an application in order to see if one's prospects improve depending on the outcome of another case is not a satisfactory explanation for a delay.
On this limb of the test, I therefore conclude that Ms Smith has not established a satisfactory explanation for the delay. I find that Ms Smith was simply not aware of a potential legal strategy at the time she consciously allowed the limitation period for filing this application to lapse. Ms Smith says that this alternative legal strategy was only revealed to her after the judgement in Johnston was delivered. That is no different in my opinion to not being aware that appeal rights existed until after a limitation period expired. In my opinion, not knowing the relevant law, or legal strategies exploiting it, at the time a limitation period lapses will not be an acceptable explanation for a delay in filing.[15]
[15] Duck v State of Queensland (Department of Education) [2022] QIRC 347, [42]-[46].

Prospects of success

Ms Smith placed significant emphasis on her prospects of success justifying an extension of time. Ms Smith argues that Johnston represents such a substantial improvement in her prospects of success in an application for reinstatement that to deny an extension of time represents an injustice in the circumstances.
Ms Smith argues that the relevant finding in Johnston was that the Commissioner of Police ('Commissioner') failed to properly consider whether the Directions were compatible with the right under s 17(c) of the Human Rights Act 2019 (Qld) ('HR Act') to not be subjected to medical or scientific experimentation or treatment without full free and informed consent. Ms Smith argues that this is significant because any challenges to the Directions' lawfulness, including numerous challenges in this Commission, had been unsuccessful up until the decision in Johnston.

Ms Smith argues the Commissioner's failure to properly consider human rights as found in Johnston dramatically improved her prospects of success in a reinstatement application. The dramatic improvement in prospects is said to be because the Direction that was found in Johnston to have not considered the compatibility of the Directions with s 17(c) of the HR Act is the same Direction that was issued to Ms Smith. The refusal to follow that Direction was, Ms Smith points out, the reason for her dismissal. Ms Smith also notes that the Commissioner in Johnston was the same person who made findings of misconduct against Ms Smith for not complying with the Directions and decided to dismiss her on that basis.
Ms Smith further argues that the finding in Johnston leaves it open for this Commission to hold that her dismissal was harsh, unjust, or unreasonable within the meaning of those terms as they appear in s 320 of the IR Act. Ms Smith submits that she was not able to freely give her consent to the vaccine. Ms Smith draws support for this submission from the finding of his Honour, Martin SJA, in Johnston that "…where a person’s livelihood can be put at serious risk if consent is not given, that is sufficient to peel ‘free’ away from ‘full, free and informed consent.’”[16] Ms Smith argues therefore that her human right under s 17(c) of the HR Act to not be subjected to medical or scientific experimentation or treatment without full, free and informed consent was not properly considered in either the casting of the Directions themselves or the decision to dismiss, which includes the decision finding misconduct that underpinned the dismissal decision. Ms Smith submits that the failure to consider the s 17(c) human right is itself unlawful pursuant to s 58(1) of the HR Act.
[16] Johnston (n 1) [333].
Furthermore, Ms Smith argues that the Commissioner expressly rejected the application of s 17(c) of the HR Act to her decision not to be vaccinated in the show cause process. Ms Smith points to the fact that QPS has not put on any affidavit evidence from the decision-maker to respond to her submissions on this issue.
QPS rejects this and argues that Ms Smith's human rights were considered at every stage of the show cause and dismissal process. Ms Smith argues in response that the consideration of Ms Smith's human rights was, in fact, superficial. Ms Smith submits that when one actually reads those passages in the letters issued during the show cause process that purportedly considered Ms Smith's human rights, they show that the Commissioner falls short of what he was required to do under s 58 of the HR Act. Ms Smith argues the Commissioner had not in fact turned his mind to the human right mentioned in s 17(c) of the HR Act. It is that apparent failing of the Commissioner that Ms Smith argues represents a dramatic improvement in her prospects of a reinstatement application since Johnston.
Another observation that his Honour made in Johnston was also cited by Ms Smith as being significant. That observation was that "…while it would be unusual for [disciplinary action] to be taken on the basis of an alleged breach of a direction found to have been made unlawfully, that remains a possibility…”.[17] Ms Smith submits that this was an indication given by his Honour that it could be found to have been at least unfair for the Commissioner to discipline her for failing to comply with the unlawful but valid Directions.
[17] Johnston (n 1) [464].
The fatal flaw in Ms Smith's arguments under this part of the test is that it is all predicated on the idea that the Commission can, at this early stage, conclude that it is likely the Commissioner did in fact fail to consider her human rights at each stage of the process. That would require concluding that the evidence QPS would bring would fail to prove adequate consideration was given to the s 17(c) human right. Ms Smith's arguments are based on her interpretation of the relevant correspondence that was sent to her.
I understand Ms Smith's argument that the relevant finding in Johnston was that the Commissioner failed to consider the relevant human right when casting and issuing the Directions. But this case goes well beyond that and into each decision that lead to the dismissal and the dismissal itself. The finding of misconduct and the decision to dismiss are both alleged to have been lacking in consideration of this human right. Even where the failing occurred at the point of giving the Directions, that does not automatically mean that the Commissioner failed to consider the right appropriately at either the finding of misconduct stage or the dismissal stage of the process. The Commissioner's relevant letters each state expressly that all of Ms Smith's human rights had been considered. I appreciate the argument that this is said to have been superficial and not real consideration. But at this stage, that is an assertion of a fact. No finding of such an important fact could possibly be made, or even predicted, at this early stage of the process.
As Ms Smith points out, QPS has not even brought evidence yet to deal with the point on an interlocutory basis. I do not understand Ms Smith to be arguing I should make a Jones v Dunkel inference from which I could infer that the Commissioner would only bring evidence that does not assist the Respondent's case.[18] Ms Smith does not take the issue further than submitting that QPS has not put on a decent reply to Ms Smith's point here.
[18] Jones v Dunkel (1959) 101 CLR 298.
It cannot be assumed that the Commissioner would fail to give evidence at all, or would give evidence that, after being tested at a hearing, would result in a finding being made that Ms Smith's human rights were not considered properly at each relevant (to this case) point in time. The fact that there were several key junctions, each with its own unique facts yet to be the subject of a hearing, is itself a warning to me that it would be an error to conclude at this early stage as Ms Smith's submission invites.
For these reasons I do not accept Ms Smith's submission on prospects. The decision in Johnston does not assist in the way Ms Smith argues it does. This consideration of prospects is, at best, a neutral one. It depends on findings of fact that cannot be made at this point. I therefore am unable to weigh the consideration of prospects, either in favour of or against, the exercise of the discretion to extend time.
Prejudice to Ms Smith if the extension of time is not granted
Clearly, Ms Smith will suffer prejudice if her application for an extension of time is refused. Her case will not be heard.
Prejudice to QPS if the extension of time is granted
QPS will suffer some prejudice if an extension is granted in the form of having to mount a defence to an action that it was otherwise entitled to consider had lapsed. Memories have no doubt faded over time too. Ms Smith's case, as she has pointed out in her submissions, was one of a many that the Commissioner dealt with at around the relevant time. To be clear, these events were over two to two and a half years ago. I accept, however, that this is nothing like the weight of prejudice Ms Smith would suffer in the event the application for extra time is refused. However, an absence of prejudice to one party is not itself a reason to grant an extension of time to the other.[19]
[19] Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129, [48]
Any relevant conduct of QPS
This is not a case where anything the Respondent has done has caused the delay. This is therefore a neutral consideration.
Conclusion
The delay is significant and was not due to representative error for the reasons I have set out above. It was the result of an exercise of choice by Ms Smith that is now regretted after an alternative legal strategy emerged. I do not accept Ms Smith's claim that she was not advised that a case like Johnston was on foot at the time she was given the relevant legal advice on prospects and strategy. I therefore do not find there to be an acceptable explanation for the delay, which is significant.
I do not accept Ms Smith's submissions that her prospects have improved dramatically since judgement in Johnston was delivered. Shortcomings in issuing the Directions were found. But that does not automatically translate to a finding that the Commissioner subsequently failed to consider the human right at each of several other relevant stages of the disciplinary process in this case. I do not therefore accept that an injustice can be seen looming, even from this early vantage point, such that warrants exercising the discretion to extend time.
I am not persuaded that this is a case that warrants the exercise of the discretion to extend time. I am not satisfied that there is a satisfactory explanation for the delay. Nor do I accept that failing to exercise the discretion would result in an injustice. I order therefore that the application be dismissed.
Order
1.The application to extend time for filing is dismissed.
2.The application TD/2024/32 is dismissed for want of jurisdiction.

citing Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[2025] QIRC 295

31 October 2025