QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Forchert v State of Queensland (Queensland Health) [2024] QIRC 187

Forchert, Marita Lee
(Applicant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	TD/2022/258
	
PROCEEDING:
	Application for reinstatement
	
DELIVERED ON:
	30 July 2024	
MEMBER:

HEARD AT:

ORDER:	Power IC

On the papers

That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.
	
CATCHWORDS:

	INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – where an application has been brought to dismiss proceeding – where there exists a history of non‑compliance and failure to comply with directions – where just and expeditious disposition required – whether discretion enlivened to dismiss proceeding.
	
LEGISLATION AND OTHER INSTRUMENTS:
	Industrial Relations Act 2016 (Qld) ss 317, 451 

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45

Practice Direction 3 of 2021 – Electronic filing and hard copies of documents
	
CASES:
	Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

McIntosh v Mantra Legends Hotel [2024] QIRC 113

Quinlan v Rothwell & Anor [2001] QCA 176

Smith v Workers' Compensation Regulator [2017] QIRC 070

Together Queensland, Industrial Union of Employees v State of Queensland [2018] QIRC 46

Workers' Compensation Regulator v Varga [2019] QIRC 028	

Reasons for Decision

	Background

[1]	Ms Marita Lee Forchert (the Applicant in the substantive matter) ('the Applicant') was employed by the State of Queensland (Queensland Health) (the Respondent in the substantive matter) ('the Respondent') as a Clinical Nurse within the Metro South Health and Health Service, Princess Alexandra Hospital, until her employment was terminated by the Respondent on 28 October 2022. 

[2]	On 18 November 2022, the Applicant filed an application for reinstatement in the Queensland Industrial Relations Commission ('the Commission') pursuant to s 317 of the Industrial Relations Act 2016 (Qld). 

[3]	On 13 December 2022, the Applicant filed a 'Form 33 – Notice of appointment of agent' which listed Mr William Parry from Nurses Professional Association of Queensland ('NPAQ') as the Applicant's representative. The matter was set down for a conciliation conference on 25 May 2023.

[4]	On 24 May 2023, the Applicant filed a 'Form 33 - Notice of appointment of agent' which listed Mr Derek Balogh as the Applicant's representative. The Applicant further requested that the matter be conciliated at a later date as Mr Parry and NPAQ had withdrawn from representing the Applicant in her appeal.

[5]	On 25 May 2023, the Applicant filed a 'Form 36 – Notice of change of lawyer or agent' to nominate Mr Balogh as her new representative.

[6]	A conciliation conference was held before Vice President O'Connor on 19 June 2023. The parties were unable to resolve the matter at the conference. 

[7]	On 19 June 2023, Vice President O'Connor issued a Further Directions Order for parties to file their statements of facts and contentions ('SOFC'). The Applicant was directed to file her SOFC by Monday, 10 July 2023. 

[8]	On 7 July 2023, the Applicant wrote to the Commission seeking 'an extension of 10 days to submit my documents'. By reply on 10 July 2023, the Commission granted the Applicant's request for an extension and directed the Applicant to file her SOFC by Thursday, 20 July 2023.

[9]	On 20 July 2023, the Applicant sent correspondence to the Commission containing 'my QIRC documents to add to my file.' The attached file was 229 pages and contained various documents including an affidavit of the Applicant dated 7 July 2023. 

[10]	In reply to the Applicant's email of 20 July 2023, the Registry advised that filings over 30 pages must be provided in hard copy and requested that she provide a hard copy of the submissions as soon as practicable.

[11]	On 27 July 2023, the Commission wrote to the Applicant advising the following: 

…

To date, the registry has not received the [Applicant's] Statement of Facts and Contentions due 4pm Thursday 20 July 2023 (extension date) as per the attached directions orders in the above matter. 

Could you please update the registry by close of business tomorrow as to the progress of this submission? 

…  

[12]	On 31 July 2023, the Respondent filed a 'Form 4 – 'Application in existing proceedings' seeking the following orders: 

1.	An order that Directions 6 – 20 of the Directions Order dated 19 June 2023 be vacated.

2.	An order pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 that the Commission exercise its discretion to dismiss TD/2022/258 on the basis that the Applicant has failed to comply with Directions 1 - 5 of the Directions Order dated 19 June 2023. 

[13]	A telephone mention was held on 14 August 2023 and a Further Directions Order (3) was subsequently issued calling for submissions regarding the Respondent's application that the matter be dismissed.

Rule 45

[14]	Rule 45 of the Industrial Relations (Tribunals Rules) 2011 ('IR Rules') is in the following terms:

45	 Failure to attend or to comply with directions order

(1) 	This rule applies if—
	(a) 	a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
	(b) 	the party fails to attend the hearing or conference.

(2) 	This rule also applies if—
	(a) 	a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
	(b) 	the party fails to comply with the order.

(3) 	The court, commission or registrar may—
	(a) 	dismiss the proceeding; or
	(b) 	make a further directions order; or
	(c) 	make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
	(d) 	make orders under paragraphs (b) and (c) .

[15]	I have previously considered the operation of r 45 in McIntosh v Mantra Legends Hotel [2024] QIRC 113 – 

In Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd, his Honour President Hall cited, with approval, the reasoning of Thomas JA in Quinlan v Rothwell & Anor ('Quinlan'), as follows:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.

In the matter of Scott v State of Queensland & Ors, Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld), the reasoning of Thomas JA has equal application to the matter in those proceedings involving the application of r 45 of the Rules.

In Workers' Compensation Regulator v Varga, Vice President O'Connor referred to a similar provision under the Federal Court Rules citing the decision of Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd, that the discretion conferred by the rule was:

…unconfined, except for the condition of non-compliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

…

Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

…

[footnotes omitted]

[16]	In the exercise of discretion pursuant to r 45, I am also minded to consider the purpose of the IR Rules, as set out in r 6:

6	Purpose of rules

The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

[17]	In considering the balance between the terms 'just' and 'expeditious', his Honour Thomas JA in Quinlan v Rothwell & Anor outlined:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules. 

[18]	In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:

The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings. 

Consideration

[19]	Following the filing of a 'Form 12 – Application for reinstatement' by the Applicant and the conciliation conference held on 19 June 2023, Vice President O'Connor issued a Further Directions Order directing the Applicant to, inter alia, file and serve a SOFC by 10 July 2023. 

[20]	The Further Directions Order outlined the following directions regarding the requirements of the SOFC – 

1.	That the Applicant file in the Industrial Registry and serve on the Respondent a statement of facts and contentions (no more than 10 pages, type-written, line and a half spaced, 12‑point font size and with numbered paragraphs), by 4.00pm on Monday 10 July 2023.

2.	The Applicant's statement of facts and contentions must:

(a)	state whether the Applicant's dismissal related to the operational requirements of the employer's undertaking, establishment or service; or
(b)	state whether the Applicant's dismissal related to the employee's conduct, capacity or performance.

3.	If it is alleged the Applicant's dismissal related to the operational requirements of the employer's undertaking, establishment or service, the Applicant's statement of facts and contentions must state:

(a)	the date the Applicant's dismissal was effective;
(b)	whether or not the Applicant was notified of the reason for the dismissal and if the Applicant was so notified, the material facts of that notification;
(c)	the reasons given by the employer for the Applicant's dismissal; 
(d)	whether or not the Applicant was provided with any notice or payment in lieu of notice and, if so, the amount of notice or the amount of payment in lieu of notice in gross terms; and
(e)	any other matters that the Applicant claims the Commission should consider relevant. 

4.	If it is alleged the Applicant's dismissal related to the Applicant's conduct, capacity or performance, the Applicant's statement of facts and contentions must:

(a)	state whether the dismissal related to the Applicant's conduct or, in the alternative, the Applicant's capacity, or in the alternative, the Applicant's performance;
(b)	set out:
(i)	the date the Applicant's dismissal was effective;
(ii)	whether or not the Applicant was notified of the reason for the dismissal and if the Applicant was so notified, the reasons given by the employer for the Applicant's dismissal; 
(iii)	whether or not the Applicant was provided with any notice or payment in lieu of notice and, if so, the amount of notice or the amount of payment in lieu of notice in gross terms;
(iv)	whether or not the Applicant had been warned about the Applicant's capacity, conduct or performance, and if the Applicant had been so warned, the material facts of the warning;  
(v)	whether or not the Applicant had been given an opportunity to respond to the claim about the Applicant's capacity, conduct or performance, and if the Applicant had been given such an opportunity, the material facts of the opportunity; and
(vi)	any other matters that the Applicant claims the Commission should consider relevant.

5.	The Applicant's statement of facts and contentions must:

(a)	having regard to s 321 and s 322 of the Industrial Relations Act 2016 ('the Act') state the remedy sought by the Applicant;
(b)	if the Applicant seeks an order for reinstatement or re-employment, whether the Applicant also seeks:
(i)	an order to maintain the continuity of the Applicant's employment or service and if so, the terms of the order sought; 
(ii)	an order that the Respondent pay to the Applicant the remuneration lost, or likely to be lost by the Applicant because of the dismissal and if so, the Applicant must:
A.	set out the amount of remuneration lost or likely to have been lost claimed by the Applicant in gross terms; and 
B.	how the Applicant worked out or estimated that amount; and
C.	the amount of employment benefits or wages, in gross terms, received by the Applicant since the dismissal; or

(c)	if the Applicant does not seek an order for reinstatement or re-employment and seeks an amount of compensation, the Applicant must:

(i)	if the Applicant was employed under an industrial instrument, set out, in gross terms, the wages the Respondent would be liable to pay the Applicant for the six months immediately after the dismissal, paid at the rate the Applicant received immediately before the dismissal;
(ii)	set out the amount of compensation, in gross terms, sought by the Applicant as compensation; and
(iii)	having regard to s 322(3) of the Act, set out how the Applicant worked out or estimated the amount of compensation as claimed.

[21]	On 7 July 2023, the Applicant emailed the Registry seeking an extension of 10 days to comply with Direction 1 to file and serve a SOFC by 10 July 2023. An extension was granted for the Applicant to file a SOFC by 20 July 2023. 

[22]	On 20 July 2023, the Applicant attached a file containing multiple documents totalling 229 pages to an email to the Registry the following message – 

Dear Registry,
Please find attached my QIRC documents to add to my file.
Kind Regards
Marita Forchert

[23]	The Registry sent a reply to the Applicant's email on 20 July 2023 stating that, as per Practice Direction 3 of 2021 – Electronic filing and hard copies of documents, filings over 30 pages must be provided in hard copy. The Applicant was requested to provide a hard copy of the documents 'as soon as practicable' either by post or by delivery to the Registry counter. 

[24]	As I understand the Applicant's submissions during the mention, the Applicant and her husband then attended the Registry in person and attempted to file the 229 pages of documents. 

[25]	The Registry emailed the Applicant on 27 July 2023 advising that her SOFC had not been filed in accordance with the Further Directions Order and enquiring as to whether a further time extension was sought. The Applicant was requested to provide an update by 28 July 2023. No reply was received from the Applicant and no extension was sought. 

[26]	On 31 July 2023, the Respondent filed a 'Form 4 – Application in existing proceedings' and a 'Form 20 – Affidavit' from Ms Samantha Gray seeking that the Commission exercise its discretion to dismiss the matter on the basis that the Applicant has failed to comply with the Directions 1 through 5 of the Further Directions Order issued by Vice President O'Connor on 19 June 2023.

[27]	The Respondent filed the following submissions with their Form 20 Affidavit in support of their Form 4 Application on 31 July 2023 - 

1.	The Applicant's failure to comply with the Further Directions Orders issued by the Commission is conduct which falls within rule 45(2) of the IR Rules. In the circumstances, the Commission's powers pursuant to rule 45(3) of the IR Rules are enlivened.
2.	The following factors weigh in favour of the Commission exercising its powers pursuant to rule 45(3)(a) to dismissing the proceeding:
a.	The Applicant has not provided any explanation for her failure to comply with the Further Directions Orders to file and serve a SOFC. 
b.	The proceeding has been initiated by the Applicant. It is not for the Respondent, nor the Commission, to run this matter for her. While the proceeding is on foot, the Respondent continues to incur legal costs.
c.	The Applicant's conduct imposes an unacceptable burden on the Respondent, as it is unable to progress this matter to resolution or hearing without her participation.
d.	The overarching purpose of the IR Rules is to provide for the 'just and expeditious disposition of [a proceeding] … at a minimum of expense' (see rule 6 of the IR Rules). It is essential that the Commission's time and resources are used efficiently to enable the parties to have the issues between them resolved in a timely matter; 
e.	The Applicant's conduct to date is fundamentally inconsistent with the overarching purpose of the IR Rules. As such, the Applicant ought not be given further opportunities to progress her Application.
3.	The Applicant has demonstrated an unwillingness to progress her Application as required. 

[28]	The matter was mentioned via telephone on 14 August 2023 during which it was confirmed that a Further Directions Order would be issued vacating the previous Further Directions Order relating to the substantive matter and directing that submissions be filed and served regarding the Respondent's interlocutory application that the matter be dismissed.

[29]	The Applicant was in attendance at the mention along with her representative, Mr Balogh. The Applicant and Mr Balogh made submissions that the Applicant had attempted to file her documents but that the Registry had refused to allow the documents to be filed due to the page number exceeding the maximum pages. The Applicant submitted that she attended the Registry counter along with her husband and attempted to file the document which, at 229 pages, was not accepted given its non‑compliance with the Further Directions Order. 

[30]	At the mention it was clearly stated that the Respondent's Form 4 Application would be addressed, and that Directions would be issued allowing parties to file submissions. There can have been no ambiguity as to what was required from the parties, and I am satisfied that the Applicant and Mr Balogh were aware that the matter was liable to be dismissed if submissions were not filed and served in compliance with the forthcoming Directions.

[31]	The Further Directions Order (3) was issued on 14 August 2023 and directed the Applicant to file submissions by 4 September 2023 as to whether the matter should be dismissed pursuant to r 45 of the IR Rules.  

[32]	The Applicant sent an email to the Registry described as an 'Affidavit' on 4 September 2023 which was presumably intended to fulfil the requirement to file submissions in accordance with the Further Directions Order (3). The submission does not refer to r 45 of the IR Rules or attempt to address the issue of whether the substantive matter should be dismissed. The document traverses many and varied issues ranging from the standing of crown law to the validity of the Governor and whether the writs for the federal election were validly issued. These submissions are not relevant to the application to be determined. The submissions are not compliant with the Further Directions Order (3) in that they do not address the issue as directed.

[33]	The Respondent filed submissions on 25 September 2023 as required pursuant to the Further Directions Orders (3). The Respondent's submissions are summarised as follows – 

a)	The Applicant's written submissions filed on 4 September 2023 demonstrate a further failure to comply with the Directions issued in the matter.
b)	To the extent the Applicant may argue she attempted to comply with the Further Directions Order to file and serve a SOFC, the Further Directions Order dated 19 June 2023 clearly outlined each of the matters required to be addressed in her SOFC. Similarly, the Further Directions Order dated 14 August 2023 clearly outlined she was required to address rule 45 of the IR Rules in her written submissions. 
c)	The Applicant has demonstrated a continued unwillingness to progress her Application as required. The Applicant appears to be pursuing an entirely misconceived claim relating to the 'constitutionality' of the vaccination mandate. This is irrelevant to whether the decision to dismiss her was fair. 
d)	The Applicant appears to be asserting this matter involves a constitutional law issue that requires notices under s 78B of the Judiciary Act 1903 (Cth) to be issued. This is misconceived. The Application does not involve a matter arising under the Constitution or involving its interpretation.
e)	To the extent the Applicant submits the Respondent is a corporation, the Respondent is not a corporation, nor is it established as a corporation under any Act. The Respondent is an administrative agency of the State of Queensland, declared under (most recently) the Public Service Departmental Arrangements Notice (No. 1) 2023.
f)	The above 'federal law' matters raised in respect of the Applicant's application are irrelevant, misconceived and lack merit. 
g)	The Applicant's submission that Crown Law has 'no standing' to represent the Respondent is misconceived. The Full Bench in Together Queensland, Industrial Union of Employees v State of Queensland determined that the State of Queensland may be represented by a lawyer who is employed by the Respondent, including a lawyer employed by Crown Law.

[34]	On 2 October 2023 the Applicant sent an email described as 'Applicant's Submission in Response to the Crown Law Office (Inc.)'. This submission again traversed matters irrelevant to the question to be determined and was non-compliant with the Further Directions Order (3). Despite having a further opportunity to do so, the Applicant again failed to refer the issue of whether the substantive Application should be dismissed. 

[35]	The Further Directions Order and the Further Directions Order (3) outlined clearly what was required from the parties. The Further Directions Order directed that the Applicant file a SOFC of no more than 10 pages addressing specific matters relating to her dismissal from her employment. The Further Direction Order (3) directed that the Applicant file submissions in response to the Respondent's Form 4 Application that the matter be dismissed. The Applicant did not comply with either of these Orders. 

[36]	The Applicant may be of the view that she attempted to comply with the Further Directions Order by attending the Registry to hand over her physical documents. These documents were in no way compliant with the requirements outlined in the Further Directions Order. The 229 pages were well in excess of the 10-page limit and could best be described as a collection of disparate documents rather than a document created to respond to the specific directions. The enforcement of the IR Rules is not simply an exercise in technicality. The IR Rules ensure that matters progress efficiently and provide fairness to all parties. The IR Rules also ensure that the other party understands the case that it needs to meet. It is simply not possible to ascertain the Applicant's case from the collection of documents provided. No explanation was provided as to why the Applicant did not comply with the requirements of the Further Directions Order, nor with the requirements of the Further Directions Order (3). 

[37]	The Applicant was on notice that an application for dismissal had been made and was aware through both the mention and subsequent Further Directions Order (3) that submissions were required to address the issue of whether the matter should be dismissed.  The failure to address that issue in the submissions as directed in the Further Directions Order (3) was a further demonstration of the Applicant's unwillingness or inability to comply with Orders.

[38]	I am satisfied that the Applicant's failure to comply with the Further Directions Orders falls within r 45(2) and provides appropriate grounds to dismiss the Application pursuant to r 45(3)(a) of the IR Rules.

[39]	I order accordingly – 

	Order

1.	That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.