A class action on behalf of former QAS employees who were disciplined for failing to comply with various COVID directions has been commenced (Witthahn v Wakefield [2025] QSC 164).  The plaintiffs were subject to disciplinary proceedings for failing to comply with the directions that were ultimately found to have been unlawful (see Covid directions to QAS and QPS employees held to be unlawful (February 27, 2024)).  The plaintiff say (at [25]):

As a consequence of their failure or refusal to comply with those types of directions, they were, variously, placed on special leave, stood down, given a Show Cause Notice, the subject of disciplinary action and terminated.

The four plaintiffs, on behalf of the QAS employees, are seeking ([4]):

… relief under the Industrial Relations Act 2016 (Qld) (the IR Act) in the current proceedings in the form of:

(a) damages for misfeasance in public office by the first and second defendants;

(b) damages for breach of contract;

(c) pursuant to s 314 of the IR Act, s 11 of the CP [Civil Procedure] Act or the court’s inherent power:

(i) orders for reinstatement, including as to their rank and standing in the QAS;

(ii) orders for payment of compensation;

(iii) orders for payment of lost remuneration;

(iv) orders to maintain continuity of employment;

(v) orders to maintain continuity of service;

(vi) such other orders as the court might think fit to remedy the effect of alleged contraventions under ss 285 and 289 of the IR Act; and

(d) payment of civil penalties pursuant to s 574 of the IR Act arising in respect of the alleged contraventions of ss 285 and 289 of the IR Act.

In Witthahn v Wakefield the Supreme Court had to deal with an application to remove the matter to the Supreme Court rather than leaving it with the Queensland Industrial Relations Commission (QIRC).  The issue was argued on the basis that the first plaintiff was a resident in NSW suing the state of Queensland. This meant, so it was argued, that this was a ‘matter … between a State and a resident of another State’. If that was the case then the High Court of Australia had original jurisdiction (Australian Constitution s 75(1)). By virtue of the Judiciary Act 1903 (Cth) that jurisdiction could be exercised by a state court, but the QIRC was not a ‘court’.  The only court, so it was argued, that could exercise this federal jurisdiction was the Queensland Supreme Court.

Treston J in the Supreme Court agreed that the QIRC did not meet the definition of a ‘court’ as intended by the Australian Constitution and it could not, therefore, exercise federal jurisdiction (see [75]). This was not, however, a ‘resident v state dispute’.   In coming to that conclusion Treston J referred to many legal authorities that said the term ‘matter’ in s 75 of the Australian Constitution which (at [21])::

… concluded that it was now established that the word “matter” in s 75 of the Constitution is not synonymous with a legal proceeding, but rather the word focuses attention upon the substance of the dispute.

Her Honour continued (at [25]):

Approached in that way, the court would look past the form in which the legal proceedings is framed, and rather would consider “the substantial subject matter of the controversy”. Here, all the group members were employed, as at 11 September 2021, by the first defendant. They allege that they were subject to directions, policies, mandates and instructions that imposed conditions on their employment, including the directions in relation to vaccination. As a consequence of their failure or refusal to comply with those types of directions, they were, variously, placed on special leave, stood down, given a Show Cause Notice, the subject of disciplinary action and terminated. As a consequence, they allege that they lost income, overtime, penalty rates, superannuation and other leave entitlements. They claim to have not been entitled to the same career progression that they would otherwise have been entitled to. The IR Act is referenced extensively in the statement of claim in terms of both the plaintiffs’ rights, and the relief sought. Whilst there are other aspects to the case, such as misfeasance in public office, the complaints nevertheless arise out of the plaintiffs’ terms of employment. In my view, “the substantial subject matter of the controversy” is industrial. There is not, on its face, anything that invokes a deeper need for the exercise of federal jurisdiction in the sense that a resident from New South Wales can point to the subject matter of the controversy and suggest he was treated differently because of his residence in that State.

If I were to look to the substance of the dispute therefore, it seems to me I would conclude that the “matter” does not fall within the “resident versus State” component of s 75(iv) of the Constitution.

Her honour held that she was bound to follow the earlier decisions and to rule that this was not a ‘matter’ between a resident and a state – that is the subject matter of the proceedings, the substance of the dispute – did not turn on the fact that the plaintiff was a resident in NSW and the defendant the state of Queensland. In that case the matter did not raise issues of federal jurisdiction and could be determined by the QIRC.

Her Honour noted (at [14]) that the ‘plaintiffs reserved their right to argue, on appeal, that that authority ought to be revisited, and overturned [but] that is not a matter for this court.’  That is the plaintiffs if they appeal may want to argue that those earlier cases were wrongly decided but a single judge of the supreme court had to apply them as they were.

Conclusion

This decision turned on technical issues to do with the Australian Constitution and the Judiciary Act 1903 (Cth), rather than any merits of the case.   The legal outcome will be of interest to constitutional lawyers (particularly if the plaintiffs appeal this initial order, perhaps to the High Court itself).  For paramedics and other former employees of QAS this is just a first step and says that the matter will proceed in the QIRC. 

We will keep an eye out for further decisions on the actual merits of the claim and report them as they are handed down.

Proudly supported by (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of these supporters.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.