Dalley & Ors v Kelsey & Ors

Case [2019] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Dalley & Ors v Kelsey & Ors [2019] ICQ 8

PARTIES:

C/2019/14

CHERIE MARIE DALLEY
(first appellant)
RUSSELL BRUCE LUTTON

(second appellant)
STEPHEN FREDERICK SWENSON
(third appellant)
LAURENCE WILLIAM SMITH
(fourth appellant)
PHILIP WAYNE PIDGEON
(fifth appellant)
TREVINA DALE SCHWARZ
(sixth appellant)
JENNIFER RACHEL JULIE BREENE
(seventh appellant)
v
SHARON RAE MARIE KELSEY
(first respondent)
LOGAN CITY COUNCIL
(second respondent)
TIMOTHY LUKE SMITH
(third respondent)

C/2019/15

TIMOTHY LUKE SMITH
(appellant)
v
SHARON RAE MARIE KELSEY
(first respondent)
LOGAN CITY COUNCIL
(second respondent)
CHERIE MARIE DALLEY
(third respondent)
RUSSELL BRUCE LUTTON
(fourth respondent)
STEPHEN FREDERICK SWENSON
(fifth respondent)
LAURENCE WILLIAM SMITH
(sixth respondent)
PHILIP WAYNE PIDGEON
(seventh respondent)
TREVINA DALE SCHWARZ
(eighth respondent)
JENNIFER RACHEL JULIE BREENE

(ninth respondent)

FILE NOS:

C/2019/14 and C/2019/15

PROCEEDING:

Appeal

DELIVERED ON:

2 July 2019

HEARING DATE:

14 June 2019

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the first respondent in both appeals was appointed as CEO of the Logan City Council (the second respondent in both appeals) – where the first respondent subsequently made a Public Interest Disclosure alleging possible misconduct on behalf of the mayor of the Council – where the first respondent commenced proceedings in the Queensland Industrial Relations Commission against the Council and the mayor – where the first respondent’s employment at the Council was terminated as a consequence of a vote of the Council – where the first respondent subsequently amended her application to include the Councillors who voted in favour of her termination as respondents – where the appellants in both appeals were then each charged with fraud – where the hearing in the Commission is on the cusp of conclusion – where the appellants applied for an order staying the proceedings in the Commission until the hearing and determination of the criminal charges – where the Commission dismissed the application – whether the Commission made some error in exercising its discretion – whether the proceedings before the Commission should be stayed

Criminal Code 1899, s 408C

Industrial Relations Act 2016, s 285

Public Interest Disclosure Act 2010, s 48

CASES:

ASIC v Craigside Company Ltd (2013) 93 ACSR 176, cited

ASIC v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487, considered

De Simone v Bevnol Constructions & Developments Pty Ltd (2009) 25 VR 237, cited

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Anor (2015) 323 ALR 294, cited

Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, cited

House v The King (1936) 55 CLR 499, applied

Macleod v The Queen (2003) 214 CLR 230, cited

McLachlan v Browne (No 9) [2019] NSWSC 10, cited

McMahon v Gould (1982) 7 ACLR 202, followed

R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155, cited

R v Ferguson; Ex parte Attorney-General (Qld)

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AGLC
Dalley & Ors v Kelsey & Ors [2019] ICQ 8
Case
[2019] ICQ 8
Decision Date

CaseChat Overview and Summary

In the matter of Dalley & Ors v Kelsey & Ors, the appellants sought to stay proceedings in the Queensland Industrial Relations Commission (QIRC) pending the outcome of criminal charges against them. The respondents, including the Logan City Council and its Councillors, opposed the stay. The dispute arose after the first respondent, who was the CEO of the Council, alleged possible misconduct by the mayor. Following this, the CEO's employment was terminated by the Council, and she subsequently filed proceedings in QIRC. The CEO amended her application to include the Councillors who voted for her termination as respondents. The appellants were then charged with fraud, and they sought to stay the QIRC proceedings until the criminal charges were heard and determined.

The legal issues before the court centred on whether the QIRC made an error in exercising its discretion in denying the appellants' application to stay the proceedings. The court needed to determine if the QIRC should have considered factors such as the potential prejudice to the appellants if they were forced to proceed in QIRC without knowing the prosecution's case in the criminal trial, the public interest in maintaining the integrity of the criminal justice system, and the adequacy of compensation as a remedy for the CEO.

The Court of Appeal reviewed the principles governing appeals from discretionary decisions, emphasizing that an appellate court should only intervene if it is clear that an error was made in exercising the discretion. The court considered whether the Vice President of QIRC erred by failing to take into account certain factors that the appellants argued should have influenced the decision to deny the stay. These factors included the prejudice to the appellants, the potential prejudice in combination with the gravity of the potential sentences, and the public interest in maintaining the integrity of the criminal justice system. The court concluded that the Vice President did not make an error in exercising the discretion, and the appeal was dismissed.

The final orders of the court were to dismiss the appeal, thereby affirming the decision of the QIRC that the proceedings should not be stayed pending the outcome of the criminal charges against the appellants.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court of Appeal followed Macleod in R v Dillon; Ex parte Attorney-General (Qld)[5] and said, at [48]: “ … Queensland Courts must now construe the term ‘dishonestly’ in s 408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards.”[5] [2015] QCA 155.An appeal from a discretionary decision – the principles It is not in dispute that the Vice President’s decision required the exercise of a discretion. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. They are set out in House v The King:[6][6] (1936) 55 CLR 499.(a) It must appear that some error has been made in exercising the discretion. (b) If the decision maker: (i)acts upon a wrong principle, (ii)allows extraneous or irrelevant matters to guide or affect him or her, (iii)mistakes the facts, or(iv)does not take into account some material consideration, then the determination should be reviewed and the appellate court may exercise its own discretion if it has the materials for doing so. (c) It may not appear how the decision maker has reached the result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the decision maker. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. The grounds of appeal The grounds of appeal in the first appeal are many and lengthy. The grounds in the second appeal effectively adopt the grounds in the first appeal and add a few more. I will deal with them in detail later but, in summary, the grounds are that the Vice President:(a) failed to apply the principle propounded in ASIC v HLP Financial Planning (Aust) Pty Ltd,[7][7] (2007) 164 FCR 487.(b) failed to take into account the prejudice which would or might be caused by the QIRC determining the same factual questions that a jury would have to consider in a criminal trial,(c) conflated two different issues: the effect of pre-trial publicity and the determination of “precisely the same factual matter that will need to be determined by the jury”,(d) failed to take into account public interest in maintaining the integrity of the criminal justice system,(e) did not find that the prejudice to the appellants outweighed that which would be suffered by Ms Kelsey,(f) failed to accept that it would be unfair for the appellants to be forced to make a decision as to whether they would make submissions in the proceeding without knowing how the prosecution in the criminal trial will put its case,(g) failed to take into account:(i)that there might be an appeal from the QIRC proceedings,(ii)the evidence which Ms Kelsey would give at a criminal trial,(iii)the potential prejudice to the appellants in combination with the gravity of the potential sentences,(h) the Vice President erred by finding that compensation was not an adequate remedy for Ms Kelsey.The factors which inform the discretion on a stay application

Ratio Decidendi

Legal Principle Established

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