Dalley & Ors v Kelsey & Ors

Link copied
Case Copied 28 min read

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Dalley & Ors v Kelsey & Ors [2018] ICQ 006

PARTIES:

C/2018/8

CHERIE MAREE DALLEY

(appellant)
RUSSELL BRUCE LUTTON
(second appellant)
STEPHEN FREDERICK SWENSON
(third appellant)
LAURENCE WILLIAM SMITH
(fourth appellant)
PHILLIP WAYNE PIDGEON
(fifth appellant)
TREVINA DALE SCHWARZ
(sixth appellant)
JENNIFER RACHEL JULIE BREENE
(seventh appellant)

v
SHARON KELSEY

(first respondent)
LOGAN CITY COUNCIL
(second respondent)
TIMOTHY LUKE SMITH
(third respondent)

C/2018/10

TIMOTHY LUKE SMITH
(appellant)
v
SHARON 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)
PHILLIP WAYNE PIDGEON
(seventh respondent)
TREVINA DALE SCHWARZ
(eighth respondent)
JENNIFER RACHEL JULIE BREENE
(ninth respondent)

FILE NO/S:

C/2018/8 and C/2018/10

PROCEEDING:

Appeal

DELIVERED ON:

14 June 2018

HEARING DATE:

24 May 2018

MEMBER:

Martin J, President

ORDER/S:

In each appeal:

(a)    The appeal is allowed.

(b)   The application is dismissed.

CATCHWORDS:

INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – SERIOUS QUESTION TO BE TRIED – RELEVANT CONSIDERATIONS – where council voted to terminate first respondent’s employment – where first respondent applied for an interlocutory order reinstating her to her position – where Industrial Commission granted an interlocutory injunction reinstating first respondent to her position – where appellants now appeal to set aside Industrial Commissioner’s decision – whether Industrial Commissioner’s decision should be set aside – whether the test to be applied when considering whether to grant an interlocutory injunction was applied correctly – whether Industrial Commissioner engaged in speculation about the state of the evidence of the final hearing – whether the first respondent established a prima facie case – whether unchallenged evidence, which was not inherently implausible nor directly contradicted by a credible body of evidence, should be accepted – whether the effect of the reverse onus in s 306 of Industrial Relations Act 2016 (Qld) is relevant in an interlocutory application – whether the balance of convenience favours the making of an interlocutory order

CASES:

Industrial Relations Act 2016 (Qld) ss 285, 306, 314
Public Interests Disclosure Act 2010 (Qld) s 48ABC v O’Neill (2006) 227 CLR 57

Ali v Nationwide News [2008] NSWCA 183

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014

Clayton v Aust (1993) 9 WAR 364

CPSU v Blue Star Pacific Pty Ltd (2009) 184 IR 333

House v The King (1936) 55 CLR 499

HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302

Hull v Thompson [2001] NSWCA 359

Kelsey v Logan City Council & Ors [2018] QIRC 053

Leahy v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098

Police Federation of Australia v Nixon [2008] 168 FCR 340

Samsung Electronics Co Ltd v Apple Inc [2011] 217 FCR 238

Webster v Lampard (1993) 177 CLR 598

APPEARANCES:

C Massey for the appellants in C/2018/8 and the Third to Ninth Respondents in C/2018/10 instructed by McInnes Wilson Lawyers

M Trim for…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Dalley & Ors v Kelsey & Ors and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] ICQ 6
Decision Date

CaseChat Overview and Summary

In the case of Dalley & Ors v Kelsey & Ors, the appellants, who are elected Councillors of Logan City Council, appeal against the decision of the Industrial Commission to grant an interlocutory injunction to the first respondent, Ms Kelsey, who was employed as the Chief Executive Officer of Logan City Council. The injunction was intended to reinstate Ms Kelsey to her position after the Council voted to terminate her employment. The primary issues in this appeal revolve around whether the Industrial Commissioner correctly applied the test for granting an interlocutory injunction, whether Ms Kelsey established a prima facie case, and whether the balance of convenience favours the making of an interlocutory order. The court also considered whether the Industrial Commissioner engaged in speculation about the state of the evidence at the final hearing and whether the effect of the reverse onus in section 306 of the Industrial Relations Act 2016 (Qld) is relevant in an interlocutory application.

The Court of Appeal found that the Industrial Commissioner applied the correct test for granting an interlocutory injunction, which requires a serious question to be tried and a prima facie case to be established. However, the Court held that Ms Kelsey did not establish a prima facie case because the evidence presented was weak, and there was no direct contradiction or inherent implausibility. The Court also found that the Industrial Commissioner engaged in speculation about the evidence that might emerge at the final hearing, which is not appropriate in an interlocutory application. Furthermore, the Court held that the balance of convenience did not favour the making of an interlocutory order for reinstatement because of the assumed weakness of Ms Kelsey's case. Consequently, the appeal was allowed, and the application for interlocutory relief was dismissed.

The final orders of the court were that the appeals were allowed, and the application for interlocutory relief was dismissed. The decision highlights the importance of establishing a prima facie case and the correct application of the test for granting an interlocutory injunction, as well as the need to avoid speculation about the evidence that might emerge at the final hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There are two appeals from that order. This decision applies to both appeals.Background On 27 June 2017, Ms Kelsey was appointed as the Chief Executive Officer of Logan City Council. The appellants in 2018/8, Cherie Marie Dalley, Russell Bruce Lutton, Stephen Frederick Swenson, Laurence William Smith, Phillip Wayne Pidgeon, Trevina Dale Schwarz and Jennifer Rachel Julie Breene, are elected Councillors of Logan City Council. The first appellant, Cherie Marie Dalley, is the Acting Mayor. The third respondent is Timothy Luke Smith, who was at the relevant times the Mayor but has been suspended from exercising that office. Ms Kelsey’s contract of employment (the contract) contained a six month probationary period during which her employment could be brought to an end on two weeks’ notice. The contract also provides:“2.3Probationary Period(a) The Executive will be subject to a six month probationary period from the Commencement Date. (b) During the Probationary Period, either Party may terminate the Executive’s Employment upon the provision of two weeks’ written notice, or, in the case of Council, payment of two weeks of the Remuneration Package in lieu of notice.” “10.1Termination with notice(a) Unless otherwise agreed in writing by the Parties, the Executive’s Employment with the Council will terminate automatically on the Expiry Date without the need for further notice to the Executive.(b) Either Party may terminate the Executive’s Employment at any time prior to the Expiry Date, provided that the required notice is given in writing.(c) Subject to clause 10.2, where the Council wishes to terminate the Executive’s Employment following the completion of the Executive’s probationary period, the Council must provide:(i)for a termination on the grounds of poor performance in the Position, 2 months’ notice; and (ii)for any other reason, the lesser of 6 months’ notice, or the remaining period of time until the Expiry Date.” On 10 October 2017, Ms Dalley (first appellant), Ms Schwarz (sixth Appellant) and Mr Smith (third Respondent in C/2018/8 matter), conducted a performance review meeting with Ms Kelsey. During this meeting, the Councillors present told Ms Kelsey that there were concerns with her performance. On 12 October 2017, Ms Kelsey, through her solicitors, issued correspondence to each of the Councillors, the Crime and Corruption Commission, and to the Minister for Local Government, alleging possible misconduct on behalf of Mr Smith. On 1 December 2017, Ms Kelsey commenced proceedings against the Council and Mr Smith, alleging contraventions of s 285 of the Industrial Relations Act 2016 (Qld) (IR Act) and s 48 of the Public Interests Disclosure Act 2010 (Qld) (Proceeding PID/2017/3). On 25 January 2018, Ms Kelsey sought interlocutory orders restraining the Council from voting on the continuation of her employment, and restraining Mr Smith from being involved in the consideration of her employment. Ms Kelsey was unsuccessful against Logan City Council, but interlocutory orders were made restraining Mr Smith from taking certain steps in respect of Ms Kelsey’s employment.

Evidence

Evidence Before The Court

In considering the evidence before him, the Industrial Commissioner also took into account evidence which did not then exist but which, if it did emerge at the final hearing, might bear upon the result. For example, he said:“[98]In the determination of the substantive matter I would expect that the Applicant would be entitled to explore with the Third to Ninth Respondents the breadth of their activity in and around the issue of the PID and the proceedings in the Commission regarding the Applicant's employment. In some respects this view is borne out by the affidavit of the Third Respondent [Exhibit 14] in terms of her conduct on 13 October 2017 when advised of the public interest disclosure. The Third Respondent recalled being ‘extremely upset during the meeting’ having just finished reading the PID and at paragraph 142 of the affidavit gave the following evidence in respect of the Applicant's handling of the PID: ‘As a result of my immediate upset at the unnecessary public nature in which this matter was handled, in the heat of the moment, in a private meeting of Councillors, I recall making comments to the effect that: a. I was breathing fire (indicating how upset I was); b.I would only talk to Ms Kelsey where my role required it, but otherwise that was it, and my mind was made up...’[99]Whilst it was said by Dalley her comments were made ‘in the heat of the moment’, and while ‘discussing my upset at a public manner in which the PID had been made’ she had not acted on those comments. It may be open to the Applicant to seek to make a connection between this conduct on 13 October 2017 and the actions of the Third Respondent in the course of the Special Council meeting on 7 February 2018....[126]The Third to Ninth Respondents were said to have been informed by the First Respondent's Counsel on 7 February 2018 that they were not required to rely solely on or be bound by the Hunter Report with the evidence before the proceedings being that without any consultation between the seven Councillors making up this block of Respondents they unilaterally decided to remove the Hunter Report from the reasons relied upon to effect the Applicant's termination in the face of legal advice that the Report was ‘only’ one of the pieces to be considered. This would appear to be another area where there may be some question of the evidence remaining as that is likely to be subject to enquiry.” The appellants submitted that the Industrial Commissioner erred because he interpreted his task as having to assess whether the evidence at the final hearing would be the same as that which was before him. It was argued that the Industrial Commissioner was identifying topics for cross-examination which might result in helpful evidence for Ms Kelsey. Further, it was submitted that the finding of the Industrial Commissioner in [132] to the effect that the evidence of the Councillor appellants had not established any grounds that would on their face “extinguish” all prospects for the Applicant at trial, demonstrated that that the correct test not been applied.

Decision

Reasons for decision

Given the (assumed) weakness of the prime facie case, I would not have held that the balance of convenience favoured the making of an interlocutory order for reinstatement.Conclusion In each appeal:(a)The appeal is allowed ,and(b)The application is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.