State of Queensland v Dodds - [2021] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

State of Queensland v Dodds [2021] ICQ 007

PARTIES:

STATE OF QUEENSLAND

(appellant)

v
GLEN DODDS

(respondent)

FILE NO/S:

C/2021/7

PROCEEDING:

Appeal

DELIVERED ON:

2 June 2021

HEARING DATE:

Determined on the papers without oral hearing

MEMBER:

Davis J, President

ORDER/S:

The application of the appellant to be represented by private counsel is refused.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURAL AND OTHER MATTERS RELATING TO APPEALS – where the respondent is an employee of the appellant - where the appellant seeks leave to be represented by private counsel in the appeal – where the appellant submits that it was denied procedural fairness in the proceedings in the Queensland Industrial Relations Commission and that the Commissioner asked herself the wrong question and committed jurisdictional error - where the respondent in these proceedings opposes the application on two grounds; firstly, that the Court does not have legislative power to allow the appellant to be represented by counsel in the appeal and secondly and alternatively, that, if such legislative power does exist, then the discretion ought to be exercised against the appellant – whether leave should be given to the appellant to be represented by private counsel in the appeal

Industrial Relations Act 2016 s 425, s 451, s 530, s 562
Public Service Act 2008 s 149, s 193, s 196A, s 197, s 204
Public Service and Other Legislation Amendment Act 2020 cl 7, cl 8, cl 9, cl 10

CASES:

Kioa v West (1985) 159 CLR 550, cited
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (2020) 297 IR 338, followed
Oratis v Melbourne Business School [2014] FWCFB 3869, cited
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited

SOLICITORS:

GR Cooper, Crown Solicitor for the appellant

Together Union for the respondent

The State of Queensland (the State) who is the appellant in the current appeal seeks leave to be represented by counsel from the private Bar in the appeal which is to be heard by the Court on 10 June 2021. The respondent, Mr Glen Dodds, opposes the application.
Background
Mr Dodds is a public servant who works for the appellant in the Department of Communities, Housing and Digital economy. His employment is subject to the provisions of the Public Service Act 2008 (the PS Act). Mr Dodds was working in a position (AO7, Principal Project Officer) which was a higher classification than his permanent position. He requested to be appointed to the higher position. That request was denied.
Mr Dodds appealed that refusal to the Queensland Industrial Relations Commission (the IRC). On 25 March 2021, Industrial Commissioner Power made the following orders:
“1.The appeal is allowed.
2.Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.
3.The Appellant be appointed to the higher classification level in accordance with s 149C of the Public…

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: [2021] ICQ 7
Decision Date: 2 June 2021

CaseChat Overview and Summary

The State of Queensland (the State) appeals to the Queensland Court of Appeal against a decision of Industrial Commissioner Power of the Queensland Industrial Relations Commission, who had allowed an appeal by Mr Glen Dodds, a public servant employed by the State. The State appeals on the grounds that it was denied procedural fairness and that the Industrial Commissioner asked herself the wrong question and made an error of jurisdiction. The appeal concerns the classification of Mr Dodds’ employment. The State seeks leave to be represented by counsel from the private bar, which Mr Dodds opposes on two grounds. Firstly, that the Court lacks the legislative power to allow the State to be represented by counsel in the appeal. Secondly and alternatively, that even if such power does exist, the discretion should be exercised against the State.

The court must decide whether the State has the legislative power to be represented by counsel in the appeal and, if so, whether the discretion to allow such representation should be exercised in favour of the State. The State argues that it was denied procedural fairness because it was not given the opportunity to respond to new matters raised by Mr Dodds in his submissions. The State also contends that the Industrial Commissioner asked herself the wrong question and committed a jurisdictional error by deciding whether Mr Dodds should be appointed to a higher classification level, rather than the particular position in which he was acting. Mr Dodds opposes the application on the grounds that there is no legislative power for the Court to allow the State to be represented by counsel in the appeal, and that even if such power exists, the discretion should not be exercised in favour of the State.

The court held that there is no legislative power for the Court to allow the State to be represented by counsel in the appeal. The court found that the Industrial Commissioner had not asked herself the wrong question or committed a jurisdictional error. The court rejected the State’s argument that it was denied procedural fairness because it was not given the opportunity to respond to new matters raised by Mr Dodds in his submissions. The court found that the Industrial Commissioner had not asked herself the wrong question and had not committed a jurisdictional error by deciding whether Mr Dodds should be appointed to a higher classification level, rather than the particular position in which he was acting. The court held that the State’s application for leave to be represented by counsel from the private bar should be refused. The court’s decision was based on the legislative power of the Court and the absence of a jurisdictional error or denial of procedural fairness.

The court refused the State’s application for leave to be represented by counsel from the private bar in the appeal. The court held that there is no legislative power for the Court to allow the State to be represented by counsel in the appeal. The court found that the Industrial Commissioner had not asked herself the wrong question or committed a jurisdictional error. The court rejected the State’s argument that it was denied procedural fairness because it was not given the opportunity to respond to new matters raised by Mr Dodds in his submissions. The court held that the State’s application for leave to be represented by counsel from the private bar should be refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The State of Queensland (the State) who is the appellant in the current appeal seeks leave to be represented by counsel from the private Bar in the appeal which is to be heard by the Court on 10 June 2021. The respondent, Mr Glen Dodds, opposes the application.Background Mr Dodds is a public servant who works for the appellant in the Department of Communities, Housing and Digital economy. His employment is subject to the provisions of the Public Service Act 2008 (the PS Act). Mr Dodds was working in a position (AO7, Principal Project Officer) which was a higher classification than his permanent position. He requested to be appointed to the higher position. That request was denied. Mr Dodds appealed that refusal to the Queensland Industrial Relations Commission (the IRC). On 25 March 2021, Industrial Commissioner Power made the following orders:“1.The appeal is allowed.2.Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.3.The Appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).” The State appeals against the decision of Industrial Commissioner Power. It does so on two grounds. Firstly, it submits that it was denied procedural fairness. The Industrial Commissioner made directions for the filing of submissions, firstly by the State and secondly by Mr Dodds, together with an order that the appeal be decided on the papers. The precise terms of the order that the case be determined without oral hearing are of some importance and are explored later. There was no direction for the filing of an outline in reply by the State. The State submits that Mr Dodds, in his submissions, raised matters which were not anticipated by the State who had no opportunity, within the directions that had been made, to respond. Secondly, the State submits that the decision below is vitiated by jurisdictional error. The question, the State submits, was whether Mr Dodds ought to have been appointed to the position of AO7, Principal Project Officer, namely the particular position in which he was acting. The State points to the form of the order[1] and to other aspects of the reasons for judgment and submits that the Industrial Commissioner has asked herself a different question, namely whether Mr Dodds ought to be appointed to a higher classification level.[1]Order number 3 is set out at paragraph [3] above. The State seeks leave to be represented on the appeal by a barrister practising at the private Bar in Brisbane. It is contemplated that the barrister will be instructed by the office of the Crown Solicitor (Crown Law). Mr Dodds is represented by an industrial advocate through his union. He opposes the application on two bases. Firstly, Mr Dodds submits that on a proper construction of the relevant legislation, there is no power in the Court to give leave to the State to be represented by a lawyer in the appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	State of Queensland v Dodds [2021] ICQ 007
PARTIES:	STATE OF QUEENSLAND (appellant) v GLEN DODDS (respondent)
FILE NO/S:	C/2021/7
PROCEEDING:	Appeal
DELIVERED ON:	2 June 2021
HEARING DATE:	Determined on the papers without oral hearing
MEMBER:	Davis J, President
ORDER/S:	The application of the appellant to be represented by private counsel is refused.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURAL AND OTHER MATTERS RELATING TO APPEALS – where the respondent is an employee of the appellant - where the appellant seeks leave to be represented by private counsel in the appeal – where the appellant submits that it was denied procedural fairness in the proceedings in the Queensland Industrial Relations Commission and that the Commissioner asked herself the wrong question and committed jurisdictional error - where the respondent in these proceedings opposes the application on two grounds; firstly, that the Court does not have legislative power to allow the appellant to be represented by counsel in the appeal and secondly and alternatively, that, if such legislative power does exist, then the discretion ought to be exercised against the appellant – whether leave should be given to the appellant to be represented by private counsel in the appeal Industrial Relations Act 2016 s 425, s 451, s 530, s 562 Public Service Act 2008 s 149, s 193, s 196A, s 197, s 204 Public Service and Other Legislation Amendment Act 2020 cl 7, cl 8, cl 9, cl 10
CASES:	Kioa v West (1985) 159 CLR 550, cited Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (2020) 297 IR 338, followed Oratis v Melbourne Business School [2014] FWCFB 3869, cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited
SOLICITORS:	GR Cooper, Crown Solicitor for the appellant Together Union for the respondent