CITATION:	Gobus v Cairns and Hinterland Hospital and Health & Ors [2015] QCAT 556	

PARTIES:	Henry Hubert Gobus
(Applicant)	
	v	
	Cairns and Hinterland Hospital andHealth Service
(First Respondent)
State of Queensland
(Second Respondent)
Julie Hartley-Jones
(Third Respondent)
Cherrie Schaeffer
(Fourth Respondent)
Joe Petrucci
(Fifth Respondent)
Timothy Shaw
(Sixth Respondent)	

APPLICATION NUMBER:	ADL048-15	

MATTER TYPE:	Anti-discrimination matters	

HEARING DATE:	17 December 2015	

HEARD AT:	Brisbane	

DECISION OF:	Member Fitzpatrick	

DELIVERED ON:	21 December 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The application seeking relief for a breach of the Public Interest Disclosure Act 2012 is amended to include the allegations set out at paragraphs 206, 207 and 208 of the applicant’s amended contentions filed 18 September, 2015.
2.	The application seeking mandatory injunctions is dismissed.	

CATCHWORDS:	Mandatory injunction – delay, serious question to be tried, balance of convenience – jurisdiction

Anti-Discrimination Act 1991 (Qld), s144
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss58 and 59

Australian Broadcasting Incorporation v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 61
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119	

APPEARANCES:

APPLICANT:	Henry Hubert Gobus	

RESPONDENTS:	Cairns and Hinterland Hospital and Health Service; State of Queensland; Julie Hartley-Jones; Cherrie Schaeffer; Joe Petrucci; Timothy Shaw.	

REPRESENTATIVES: 

APPLICANT:	Self-represented 	

RESPONDENTS:	represented by Dr Max Spry of Counsel instructed by Ms Jody Cosgrove, Solicitor, Crown Law.	

REASONS FOR DECISION

[1]	The applicant, Mr Gobus, lodged a Complaint in the Anti-Discrimination Commission Queensland on 29 August, 2014, alleging that he had been the subject of reprisals following the making of a Public Interest Disclosure on 26 May, 2012.
[2]	The Complaint was referred to this Tribunal on 15 May, 2015.
[3]	Pursuant to Directions, Mr Gobus filed amended contentions on 18 September, 2015.  The respondents’ contentions are dated 14 August, 2015.
[4]	On 5 October, 2015, the respondents applied to dismiss/strike out the applicant’s proceeding pursuant to sections 47 and /or 48 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).  That matter was heard on 11 and 17 December, 2015.  Apart from determination of the application the subject of this decision, the application and the proceeding have been ordered to be stayed pending the publication of a decision by the Queensland Industrial Relations Commission, in relation to a reinstatement application made by Mr Gobus, which was heard over three days commencing 19 October, 2015.
[5]	This decision relates to an application for the making of interim orders by this Tribunal in the nature of mandatory injunctions.  The application was filed on 17 November, 2015 and heard on 17 December, 2015.
Orders sought
[6]	Mr Gobus seeks the following Orders:
(1)	That Queensland Health contacts OPTUM immediately (within 2 days) and informs OPTUM that Queensland Health does no longer object to Mr Henry Hubert Gobus consulting Queensland Health employees.
(2)	That Queensland Health approaches OPTUM and convey the new direction with care to ensure that Mr Henry Hubert Gobus’ professional reputation is not in any way injured, damaged or could be viewed in an unfavourable light.
(3)	That OPTUM on the day it receives the instructions from Queensland Health, informs Sharon Daniels and Associates, the clinic Mr Henry Hubert Gobus contracts to, in writing, that Mr Henry Hubert Gobus can consult Queensland Health employees.
(4)	That Queensland Health in the future refrain from interfering with Mr Henry Hubert Gobus’ private psychology practice.
[7]	Order 1 is similar to the order sought by Mr Gobus in the main proceeding at paragraph 6 of his amended contentions. That order is directed to the First Respondent.
[8]	Mr Gobus explained that OPTUM is contracted to Queensland Health to provide an employee assistance program, including consultation with psychologists. There is no evidence as to whether the First Respondent or the Department of Health is the contracting party with OPTUM.
[9]	Mr Gobus says that he is contracted to Sharon Daniels and Associates as a Clinical Psychologist.  Sharon Daniels and Associates is said to be contracted in turn to OPTUM for the provision of psychology services as part of the Queensland Health employee assistance program.
[10]	Mr Gobus’ evidence is that since the termination of his employment by Queensland Health he has only been able to secure sporadic work through Sharon Daniels and Associates. He says that Queensland Health referrals pursuant to the employee assistance program are a significant part of the work of Sharon Daniels and Associates. Mr Gobus says that since his termination of employment he has conducted a number of consultations with Queensland Health employees.
[11]	On 29 May, 2015 Sharon Daniels and Associates were informed by OPTUM that: “We have been advised that Henry Gobus is not allowed to see any employees from the Cairns Health Service and/or all of Queensland Health, as he is an ex-employee and it is a conflict of interest.”
[12]	The direction that Mr Gobus not see Queensland Health employees as part of the employee assistance program is said to be until further notice.
Parties submissions
[13]	Mr Gobus raises several matters which have prompted the application, including the need to work for an income, fear that referrals to the clinic where he works are drying up as a result of association with him and continuous suicidal ideation as the pressure of him losing his home is escalating.
[14]	Mr Gobus asserts that there can be no conflict of interest in providing psychology services to Queensland Health employees because he is no longer employed by Queensland Health.
[15]	Mr Gobus submits that the direction not to refer Queensland Health employee assistance clients to him is illegal because he is entitled to practise throughout Australia as a result of his registration as a Clinical Psychologist.  He asserts that only the Australian Health Practitioner Regulation Agency can limit his right to practise.
[16]	The respondents submit that:
(a)	the applicant has delayed for a period of at least 5 months before bringing this application and a delay of that length of time is fatal to an application for interlocutory relief.
(b)	This Tribunal’s jurisdiction to make the orders sought is pursuant to sections 58 and 59 of the QCAT Act.  An applicant seeking an interlocutory order must show a serious question to be tried; that damages are not an adequate remedy; and that the balance of convenience favours the granting of interlocutory orders.  Mr Gobus has not done so.
(c)	There is nothing in Mr Gobus’ material to suggest that any of the alleged conduct was because the applicant had made a Public Interest Disclosure. The complaint about being denied work was not in the original application referred to the Tribunal and there has been no application to amend the complaint.  The complaint is not properly before the Tribunal.
(d)	Damages are an adequate remedy.  In the proceedings, Mr Gobus seeks an award of $1,353,210.00 for lost income over a 10 year period.
(e)	The balance of convenience weighs against the granting of interlocutory relief.  
(f)	The applicant is seeking final relief before the matter has been heard.  The interlocutory injunction goes further than preserving the status quo.
(g)	The applicant asserts he suffers a number of psychological conditions as a result of the respondents’ alleged conduct.  The first and second respondents cannot be confident Mr Gobus could undertake counselling services to its employees in a professional manner and not influenced by extraneous factors.  There is a possible impact on employees who seek access to counselling services.
(h)	Because Mr Gobus has made allegations of reprisals taken against him by the Department of Health he has a conflict of interest which should prevent him consulting Queensland Health employees.
(i)	The orders sought are not orders which would be made in any event.  There is no evidence from Sharon Daniels that she would give Queensland Health referrals to Mr Gobus.
(j)	No undertaking as to damages has been given.
Jurisdiction
[17]	I agree with the respondents that Mr Gobus has expanded the scope of his complaint after referral from the Anti-Discrimination Commission, to include the complaint that he has been denied work in the employee assistance program, as an act of reprisal.  I agree that no application to expand the scope of the original complaint has been made.  The Tribunal has the power under section 178 of the Anti-Discrimination Act 1991 to amend a complaint, even if the amendment concerns matters not included in the complaint.
[18]	By section 61 of the QCAT Act, the Tribunal may on its own initiative waive compliance with the requirement to make a formal application to amend.  The original contentions filed in this matter on 16 July, 2015, set out the allegation about denial of work in the employee assistance program, at paragraph 79. The allegation was responded to by the respondents, without raising the point that it fell outside the scope of the original referral and without any assertion of prejudice in being required to deal with the issue. The allegation is again raised, at paragraphs 206, 207 and 208 of the amended contentions. At the hearing of the interlocutory injunction application no issue of prejudice was raised in the event that I determined  the matter was properly before me.
[19]	On these bases, I order that the original complaint is amended in the terms of paragraphs 206, 207 and 208 of the amended contentions.
[20]	Given this order, I consider that I have jurisdiction to deal with the current application. 
[21]	The only basis on which Mr Gobus may seek a mandatory injunction at an interlocutory stage is pursuant to sections 58 and 59 of the QCAT Act. Mr Gobus made no submissions in relation to the statutory basis for the orders sought.  Because this matter arises after the referral from the Anti-Discrimination Commission, section 144 of the Anti-Discrimination Act, is not available as a statutory basis for this application.
Grounds for an interim injunction
[22]	Section 58 provides that an interim order, which has effect for the duration of a proceeding or shorter time, may be made if the Tribunal considers it appropriate in the interests of justice, including to:
(a)	protect a party’s position for the duration of the proceeding; or
(b)	require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
[23]	By section 59, the Tribunal may grant an injunction, including an interim injunction if it is just and convenient to do so.
[24]	Based on Mr Gobus’ submissions as to his current circumstances, I have formed the view that Mr Gobus is seeking an immediate remedy for the difficult financial position in which he finds himself.  He is seeking to do so without a hearing into the question of whether he has been the victim of a reprisal related to his public interest disclosure. That is a an order which should not be made lightly.
[25]	At the outset I find that Orders 2 and 4 are not Orders which this Tribunal would make given their imprecision and subjectivity.  OPTUM is not a party to the proceedings.  Accordingly, Order 3 cannot be made and directed to it. I also have a concern that Order 1 is directed to Queensland Health, without any express evidence as to what entity has contracted with OPTUM.  The respondents did not make any submissions in this regard.
[26]	I do not consider Order 1, is necessary to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceeding.  Mr Gobus made no submissions in this regard.
[27]	The question which remains is whether it is appropriate in the interests of justice that Order 1 is made, for a reason that includes the protection of Mr Gobus’ position for the duration of the proceeding.
[28]	I accept the respondents’ submissions that the usual considerations which apply to the grant of an interim injunction must be taken into account. These are matters which go to both sections 58 and 59 of the QCAT Act.
[29]	I do not consider there has been any unacceptable delay in seeking the interim injunction, particularly as no prejudice has been raised by the respondents as a consequence of the delay.
[30]	As to whether there is a serious question to be tried, the proceeding is currently the subject of a strike out application which has been stayed.  However, without determining that matter, as the case is currently set out in the amended contentions, there is no basis expressly stated for asserting that the actions of the respondents are reprisals for the public interest disclosure.  During the strike out application heard immediately prior to this application, Mr Gobus submitted that the Tribunal should find reprisals had occurred, as a matter of inference. There is very limited evidence before the Tribunal at this time to justify the drawing of that inference.  I find that there is not on the current state of the evidence, a sufficient likelihood of success to justify reverting to the previous position where Mr Gobus was available as a provider of psychology services in the employee assistance program. The respondents submitted that the Tribunal will require a ‘high level of assurance’, before granting the relief sought, particularly where the relief sought has the effect of finally determining the rights of the parties.  Because Mr Gobus’ case is a case built on inference, with little supporting evidence, I do not have the necessary degree of assurance. As I have said Mr Gobus seeks relief without a finding of a reprisal at this stage.
[31]	There is no evidence before me that damages are not an adequate remedy. I find that Mr Gobus claim is capable of calculation and that he has done so in formulating his claim for compensation for lost earnings.
[32]	As to the balance of convenience, Mr Gobus must establish that the inconvenience or injury he would be likely to suffer if an injunction is refused outweighs the injury with the respondents would suffer if an injunction were granted.
[33]	On the one hand, Mr Gobus asserts continuing loss of income through being unable to treat Queensland Health employees as part of the employee assistance program. I note that there is no evidence from Sharon Daniels and Associates, that even if Queensland Health were to inform OPTUM that it no longer objects to Mr Gobus providing psychology services as part of the employee assistance program, that it would allocate work to him upon referral to that business. The injunction may not remedy the asserted injury or inconvenience, in any event.
[34]	 On the other hand, the respondents refer to the potential impact on employees seeking psychological assistance, being seen by a man who makes wide-ranging and serious allegations against their employer. Mr Gobus does not see any conflict of interest. He has submitted that a conflict of interest cannot exist, because he is no longer employed by Queensland Health. That ignores the conviction by Mr Gobus that he has been injured in many ways by the respondents.  I consider that it is not unreasonable, for an employer to hold concerns about the objectivity of a person providing psychology services to its employees, who has been engaged in long running disputes in a number of forums and is currently litigating in two forums against it.  This is particularly so where allegations of reprisals, negligence, conspiracy, and deliberately causing him financial, emotional and psychological injury are raised against the respondents.
[35]	I accept the respondents’ submissions that they cannot be confident Mr Gobus would not be influenced by extraneous factors when providing counselling services. I consider that it would be unreasonable to require Queensland Health (or whichever entity is the contracting party) to say to its service provider that it does not object to Mr Gobus providing services.
[36]	In relation to Mr Gobus’ submission that only his registration body can determine the scope of his practise and that Queensland Health is acting illegally, I accept the submission of the respondents that no challenge is made to Mr Gobus registration as a psychologist. Further, he is not being prevented from consulting with Queensland Health employees outside the employee assistance program. 
[37]	In all, I consider the balance of convenience does not favour Mr Gobus.
[38]	At the hearing of the application Mr Gobus indicated that he carried professional insurance and that he was therefore able to offer an undertaking as to damages.  I do not think that submission alone is sufficient to address the issues associated with an undertaking as to damages.
[39]	In any event without determining that point, I do not consider Mr Gobus has established the grounds for the granting of a mandatory injunction in the terms sought by him.  
Orders
[40]	The application seeking relief for a breach of the Public Interest Disclosure Act 2012 is amended to include the allegations set out at paragraphs 206, 207 and 208 of the applicant’s amended contentions filed 18 September, 2015.
[41]	The application seeking mandatory injunctions is dismissed.