Kelsey v Logan City Council (No. 5)
[2024] ICQ 15
•5 August 2024
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Kelsey v Logan City Council & Ors (No. 5) [2024] ICQ 015
PARTIES:
SHARON RAE MARIE KELSEY
(Appellant/Applicant)
v
LOGAN CITY COUNCIL
(First 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 RACHAEL JULIE BREENE
(Ninth Respondent)
CASE NO:
C/2021/8
PROCEEDING:
Appeal and Application in existing proceedings
DELIVERED ON:
5 August 2024
HEARING DATES:
25, 26 and 27 October 2023
MEMBER:
HEARD AT:
Merrell DP
Brisbane
ORDERS:
The orders contained in paragraph [804] of these reasons for decision CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEALS TO INDUSTRIAL COURT – Appellant employed as the Chief Executive of the First Respondent – Appellant dismissed due to decision of the Third to Ninth Respondents who were Councillors of the First Respondent – Appellant applied to the Queensland Industrial Relations Commission for various orders including reinstatement, injunctive and declaratory relief – Appellant alleged that her dismissal was a contravention of s 40 of the Public Interest Disclosure Act 2010 on the basis that she had made a Public Interest Disclosure to the First Respondent and to others – Appellant also alleged that her dismissal was in contravention of s 285 of the Industrial Relations Act 2016 because she exercised workplace rights within the meaning of s 284 of the Industrial Relations Act 2016 – Appellant's application to the Queensland Industrial Relations Commission for various orders dismissed – Appellant appealed to the Industrial Court of Queensland against the decision of the Queensland Industrial Relations Commission – Appellant's application to appeal not regular – Appellant applied to amend her application to appeal to regularise it – whether the Appellant's application to amend her application to appeal should be granted – Appellant's application to amend her application to appeal proposes grounds alleging errors of law – Appellant, by her application to amend her application to appeal, applies for leave in the public interest to appeal against proposed grounds alleging errors of mixed law and fact – parties proposed that the Industrial Court of Queensland hear all proposed grounds of appeal in deciding whether to allow the Appellant to amend her application to appeal – proposal adopted by the Industrial Court of Queensland – whether the Appellant's proposed grounds of appeal as pressed are made out – the Appellant's proposed grounds of appeal as pressed are not made out – Appellant's application to amend her application to appeal dismissed – application to appeal dismissed
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT – where application to appeal was non‑compliant with the Industrial Relations (Tribunals) Rules 2011 and the Appellant applied to amend her application to appeal – circumstances where the Court may exercise discretion to allow amendment –regard to be had to the prospects of success of the proposed grounds
APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE'S FINDING OF FACTS – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where the Appellant alleges wrong findings of fact made – where restraint should be exercised by the Court in interfering with the factual findings made by the trial judge whose findings are likely to have been affected by impressions about the credibility and reliability of the witnesses as a result of the trial judge hearing and seeing them give evidence – Vice President of the Queensland Industrial Relations Commission, after a long trial, extensive cross-examination of the Third to Ninth Respondents and extensive written and oral submissions by the parties, gave detailed reasons for accepting the sworn evidence of the Third to Ninth Respondents that they did not vote to terminate the Appellant's employment for the proscribed reasons as alleged – Vice President's findings likely to have been affected by impressions about the credibility and reliability of the Third to Ninth Respondents as a result of the Vice President hearing and seeing them give evidence – appellate restraint exercised
APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE'S FINDING OF FACTS – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – Appellant alleges certain adverse inferences against the Third to Ninth Respondents should have been drawn from social media posts made by them – civil penalties sought by the Appellant – where civil penalties sought, no adverse inferences should be drawn where one or more inferences are equally open – the adverse inferences sought to be drawn by the Appellant were not the only inferences open
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ERROR OF LAW – FAILURE TO GIVE REASONS – ADEQUACY OF REASONS – Appellant alleged the Vice President of the Queensland Industrial Relations Commission failed to give adequate reasons – the principles about adequacy of reasons were established in DL v The Queen – the Vice President of the Queensland Industrial Relations Commission gave adequate reasons in conformity with the principles about adequacy of reasons contained in DL v The Queen
EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – WITNESSES – CROSS-EXAMINATION – RULE IN BROWNE V DUNN – whether the Vice President of the Queensland Industrial Relations Commission misapplied the rule in Browne v Dunn – no misapplication – Vice President of the Queensland Industrial Relations Commission correctly applied the principle from Curwen & Ors v Vanbreck Pty Ltd
LEGISLATION:
Acts Interpretation Act 1954, sch 1
Fair Work Act 2009, s 340 and s 557A
Industrial Relations Act 1999, s 342
Industrial Relations Act 2016, s 282, s 284, s 285, s 306, s 314, s 539, s 557, s 558, s 565, s 567, s 571, s 572, s 574, s 575 and sch 3
Industrial Relations (Tribunals) Rules 2011, r 226
Local Government Act 2009, s 176B
Penalties and Sentences Act 1992, s 5 and s 5A
Penalties and Sentences Regulation 2015, s 3
Public Interest Disclosure Act 2010, s 40, s 51 and s 52
Workplace Relations Act 1996, s 298K
CASES:
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 351 ALR 379
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686
Attorney-General (NSW) v Ohlsen [2022] FCAFC 38; (2022) 290 FCR 173
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784: (2010) 187 FCR 293
Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222
Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers Appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342
Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442; (2020) 389 ALR 17
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639
Bell Group Ltd (In liq) and Others v Westpac Banking Corporation and Others (No 9) [2008] WASC 239; (2008) 39 WAR 1
Board of Bendigo Regional Institute of Technical and Further Education v Barclay
[2012] HCA 32; (2012) 248 CLR 500Bradshaw v McEwans Pty Ltd (1951) 2017 ALR 1
Browne v Dunn (1893) 6 R 67
Burns v Grigg [1967] VR 871
Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39
Cleal v State of Queensland(Queensland Health) [2023] ICQ 006
Comalco Aluminium (Bell Bay) Ltd v O'Connor(No 2) [1995] IRCA 680; (1995) 61 IR 455
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466
Construction, Forestry, Mining and Energy Union and Another v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273
Cosmopolitan Hotel (Vic) Pty Ltd & Anor v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421
Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284; (2009) 26 VR 335
De Winter v De Winter (1979) 23 ALR 211
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Doerr v Gardiner [2023] QCA 160
DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17
Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201
Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112, [2009] VSCA 178; (2009) 24 VR 155
Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gambaro v Workers' Compensation Regulator [2017] ICQ 005
Gibbs v Palmerston Town Council [1987] FCA 732
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
H v P [2011] WASCA 78
Hamod v New South Wales [2011] NSWCA 375
Harvey v State of Queensland (Queensland Health) [2024] ICQ 10
He v Aloe & Co Pty Ltd [2006] VSC 150
Henning v State of Queensland (Queensland Health) [2023] ICQ 009
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
J Hutchinson v Australian Competition and Consumer Commission [2024] FCAFC 18
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284
Jolly v Sharma [2024] FCA 171
Jones v The Commonwealth [2023] HCA 34; (2023) 97 ALJR 936
Kelsey v Logan City Council and Another [2018] QIRC 009
Kelsey v Logan City Council & Ors (No. 8) [2021] QIRC 114
Kelsey v Logan City Council & Ors (No. 9) [2022] QIRC 342
Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013
Kelsey v Logan City Council & Ors (No. 3) [2022] ICQ 021
Kelsey v Logan City Council & Ors [2022] QCA 238
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34
McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) CLR 541
Momcilovic v the Queen [2011] HCA 34: (2011) 245 CLR 1
Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196
Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729
MZAPC v Minster for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139
O'Sullivan v Farrer[1989] HCA 61; (1989) 168 CLR 210
Parsons v Serco Citizen Services Pty Limited [2024] FCA 754
Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551
Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1
RPS AAP Consulting Pty Ltdv Lamb [2023] FCA 1310
Saville v Q-Comp and Anor [2007] ICQ 28; (2007) 185 QGIG 243
Serpanos v Commonwealth of Australia [2022] FCA 1226
Sharman v Boshell [2005] NSWCA 476
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales (in liq) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588
Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
TechnologyOne Limited v Roohizadegan [2021] FCAFC 137; (2021) 309 IR 262
The Electrical Trades Union of Queensland v United Group Limited [2007] QIRC 88; (2007) 186 QGIG 611
Transport Accident Commission v Campbell [2015] VSCA 7; (2015) 69 MVR 410
Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Wong v National Australia Bank Limited [2021] FCA 671
Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148
Workers' Compensation Regulator v Langerak [2020] ICQ 002
Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King [2024] FCA 454
COUNSEL:
Mr P. Zielinski of Counsel for the Appellant.
Mr A. Herbert of Counsel for the First Respondent.
Mr W. Friend KC with Mr C. Massy of Counsel for the Third to Ninth Respondents.
SOLICITORS:
Xenophon Davis for the Appellant.
King & Company Solicitors for the First Respondent.
McInnes Wilson Lawyers for the Third to Ninth Respondents.
Contents
PART ONE
Introduction
PART TWO
Background
The Primary Decision
The principal issue this Court is required to determine
PART THREE
The nature of the Court's appellate function
Appeals by way of rehearing
The public interest and the appeal on grounds other than error of law or excess, or want, of jurisdiction
PART FOUR
The proposed grounds of appeal
The Directions Orders made by this Court following the parties' agreed proposal
Ms Kelsey's principal submissions
PART FIVE
Part C of Ms Kelsey's principal submissions, proposed ground of appeal 1: 'GROUND 1: SCRUTINISING THE REASONS GIVEN BY THE INDIVIDUAL RESPONDENTS FOR THEIR VOTES'
Is proposed ground of appeal 1 about an error of law or an error of fact?
The parties' principal arguments
Kodak is not authority for the proposition in proposed ground of appeal 1
An error of the kind referred to in Earthline is not an error of law
The decisions in Gibbs, NTEU and Serpanos are not authority for the proposition in proposed ground of appeal 1
Whether the Councillors' vote was because Ms Kelsey had exercised a workplace right is a question of fact
The decision in Dawson Services
The Vice President, in the last two sentences of paragraph [803] of the Primary Decision, correctly described the task
Ms Kelsey's other arguments
Proposed ground of appeal 1 does not allege an error of law
PART SIX
Part D of Ms Kelsey's principal submissions, proposed grounds of appeal 3 to 10 and 13 to 27: 'GROUNDS 3 TO 10 AND 3 TO 27 ADEQUACY OF REASONS AND MISUSE OF ADVANTAGE'
Delay
The first sub-heading of Part D: 'D.1 Relevant principles as to adequacy of reasons'
The parties' submissions
The relevant principles
The second sub-heading of Part D: 'D.2 Relevant principles as to findings made on assessments of credibility'
The third sub-heading of Part D: 'D.3 Key evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'
Ms Kelsey's alignment claim
'D.3A Alignment: Misunderstanding the case pressed by Ms Kelsey'
The allegation about paragraphs [88], [536], [770] and [772]-[773] of the Primary Decision
The specific evidence referred to by Ms Kelsey
'D.3B Alignment: the contents of the WhatsApp messages'
Ms Kelsey's general complaint about the WhatsApp messages
The WhatsApp messages were allegedly treated as neutral
The allegation that the Vice President's finding in paragraph [778] was not adequately explained
The allegation that the Vice President's reasons about inferences pressed by Ms Kelsey were not adequately explained
The Councillors' submissions about the drawing of inferences in cases where civil penalties are sought
Specific WhatsApp messages
WhatsApp messages allegedly demonstrating the participants strategising for proscribed reasons
The Mitcham Council messages
Messages about support for Mayor Smith
Messages about having the backs of others
Messages critical of Ms Kelsey's initial affidavit
The hearing on 25 January 2018
The Councillors' alleged 'disingenuous' evidence about the WhatsApp communications
Psalms 7:14-16
The communication about Ms Kelsey being hit by the door on the way out
Other WhatsApp communications referred to by Ms Kelsey
Conclusion about the contents of the WhatsApp messages
'D.3C Alignment: What the WhatsApp messages did not say expressly, they showed implicitly'
'D3.D Alignment: The 'debate rules''
'D3.E Alignment: The Hallam email exchange'
The fourth sub-heading of Part D: 'D.4 Other evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'
'D.4A Assessment of the fairness, reasonableness and rationality of the individual respondents' motivations'
'D.4B Cr Dalley's purported reasons for dismissing Ms Kelsey'
The Vice President's reasons
Ms Kelsey's general complaint about the Vice President's decision concerning Cr Dalley's reasons
The Relay for Life
The USA Delegation
The meeting on 5 December 2017
Acceptable Request Guidelines
The rejection of Ms Kelsey's submission that Cr Dalley had been outraged by the lodgement of the PID
The 'I'm breathing fire' comment
Conclusion
'D.4C Cr Breene's purported reasons for dismissing Ms Kelsey'
'D.4D Cr Lutton's purported reasons for dismissing Ms Kelsey'
'D.4E Cr Swenson's purported reasons for dismissing Ms Kelsey'
'D.4F Cr Pidgeon's purported reasons for dismissing Ms Kelsey'
'D.4G The way the PID complaint was sent'
'D.4H Reliance on legal advice'
Conclusion about sub-heading D.4 of Ms Kelsey's principal submissions
The allegation that the Vice President committed the same error in approach as the trial judge in TechnologyOne
The five non-respondent councillors
The decision in TechnologyOne
The evidence of the non-respondent councillors about their own views of the aspects of Ms Kelsey's work performance impugned by the Councillors
Councillor Bradley's evidence of a change in attitude of the Councillors after 12 October 2017 and her evidence about the vote
The evidence of Cr Raven that once the Councillors became aware that only performance grounds could be used to dismiss Ms Kelsey, they started looking for performance issues
The evidence that the Councillors never brought to the attention of the non‑respondent councillors, prior to the vote, the performance issues they relied upon to dismiss Ms Kelsey and that Ms Kelsey was not told of the reasons for her dismissal at the time of the vote
The evidence that the non-respondent councillors were not told by the Councillors why they chose to dismiss Ms Kelsey
The evidence that the relevant performance issues were never brought to Ms Kelsey's attention prior to the vote
Conclusion
The Hunter report
Final matters
PART SEVEN
Part E of Ms Kelsey's principal submissions, proposed ground of appeal 2: 'ACCESSORIAL LIABILITY (GROUND 2)'
PART EIGHT
Part F of Ms Kelsey's principal submissions, proposed ground of appeal 12: 'THE MISAPPLICATION OF BROWNE V DUNN'
PART NINE
Proposed grounds of appeal 13 (a) and 13 (b)
PART TEN
Conclusion
PART ELEVEN
Orders
Reasons for Decision
PART ONE
Introduction
[1]Ms Sharon Kelsey was employed as the Chief Executive Officer of the First Respondent, the Logan City Council, ('the Council'), commencing in that position on 2 June 2017.[1] At that time, Mr Timothy Smith was the Mayor of the Council ('Mayor Smith').[2] Ms Kelsey's employment was subject to a six month probation period.[3]
[1] Kelsey v Logan City Council & Ors (No. 8) [2021] QIRC 114 ('Primary Decision'), [1] (Vice President O'Connor).
[2] Ibid [1].
[3] Ibid [3].
[2]On 10 October 2017, a probation meeting concerning Ms Kelsey was held between her, two of the councillors, Councillor Cherie Dalley ('Cr Dalley') and Councillor Trevina Schwarz ('Cr Schwarz'), and Mayor Smith.[4]
[4] Ibid [4].
[3]On 12 October 2017, Ms Kelsey made a public interest disclosure, within the meaning of the Public Interest Disclosure Act 2010 ('the PID Act'), to the Council alleging possible corrupt conduct by Mayor Smith ('the Council Complaint').[5] On the same date, Ms Kelsey referred a complaint to the Crime and Corruption Commission ('CCC') alleging possible corrupt conduct by Mayor Smith ('the CCC Referral').[6] On 17 October 2017, Ms Kelsey made a complaint to the Director-General of the Department of Infrastructure, Local Government and Planning, pursuant to s 176B of the Local Government Act 2009, alleging possible misconduct by Mayor Smith ('the s 176B Complaint').[7]
[5] Appeal Record Book ('ARB'), pages 500-524.
[6] ARB, pages 526-553.
[7] ARB, pages 557-583.
[4]On 1 December 2017, Ms Kelsey commenced a proceeding in the Queensland Industrial Relations Commission by filing an application seeking various orders concerning her continued employment.[8] The respondents to that application, at that time, were the Council and Mayor Smith.
[8] Primary Decision (n 1) [7].
[5]At that time, the Third to Ninth Respondents were councillors ('the Councillors'). On 7 February 2018, the Councillors carried a motion to terminate Ms Kelsey's employment and her employment was brought to an end by the giving of two weeks' notice.[9]
[9] Ibid [11].
[6]Ultimately, Ms Kelsey, in respect of the termination of her employment, sought orders from the Commission against the Council, Mayor Smith and the Councillors.
[7]Ms Kelsey's principal claims were that the termination of her employment was in contravention of the PID Act because she had made the Council Complaint and the CCC Referral; and that the termination of her employment was in contravention of the Industrial Relations Act 2016 ('the IR Act') because she had made the Council Complaint, the CCC Referral and the s 176B Complaint. Those claims were heard by the Vice President and, by decision delivered on 1 April 2021, were dismissed against each Respondent for the reasons given in Kelsey v Logan City Council & Ors (No. 8)[10] ('the Primary Decision').
[10] Primary Decision (n 1), [823].
[8]As explained by the reasons that follow:
·by application to appeal, filed on 21 April 2021, Ms Kelsey appealed to this Court against the Primary Decision ('the application to appeal' or 'Ms Kelsey's application to appeal');
·by application in existing proceedings filed on 18 June 2021, Ms Kelsey applied for a decision that her application to appeal be '… substituted with the Form 5 – Application to appeal filed with this Form 4 – Application in existing proceedings' ('the application to amend' or 'Ms Kelsey's application to amend');
·the application to amend was dismissed by this Court but, following an appeal to the Court of Appeal, was remitted to be determined by this Court as currently constituted;
·the principal matter for the Court's determination is whether the application to amend should be granted; and
·the parties before me, by agreement, proposed that the application to amend and Ms Kelsey's substantive appeal be listed to be heard together, a proposal which was adopted by this Court.
[9]Ms Kelsey, in her written and oral submissions before me, did not precisely tie her submissions to each proposed ground of appeal that was, in fact, pressed by her. While some specific grounds of appeal were addressed by Ms Kelsey, she otherwise referred to categories of complaint about alleged errors of law and alleged errors of mixed law and fact in the Primary Decision. The ultimate order sought by Ms Kelsey is that her application to appeal be allowed and the matter remitted to the Commission for a retrial.[11]
[11] T 1-11, l 34 to T 1-12, l 4.
[10]The Court has heard full argument from the parties about the specific grounds of appeal pressed by Ms Kelsey and about the categories of complaint addressed by her. For the reasons that follow, none of them are made out. For those reasons, there is no utility in granting Ms Kelsey's application to amend.
[11]As a consequence the Court will:
·dismiss Ms Kelsey's application to amend; and
·dismiss Ms Kelsey's application to appeal.
PART TWO
Background
[12]As referred to earlier, Ms Kelsey's principal application to the Commission was filed on 1 December 2017. By a further amended application filed on 10 April 2018, Ms Kelsey sought final relief pursuant to the PID Act and the IR Act. By that application, Ms Kelsey sought various orders against the Council, Mayor Smith and the Councillors including:
·an order that, pursuant to the IR Act, the Council, Mayor Smith and the Councillors pay her damages caused by them;[12]
[12] Ms Kelsey's Further Amended Application filed on 10 April 2018 ('the application for final relief'), section 3, para. 3. ARB, page 325.
·an order that the Council, Mayor Smith and the Councillors pay civil penalties, under the IR Act, to her;[13]
[13] The application for final relief, section 3, para. 5, ARB, page 325.
·an order that, pursuant to the IR Act and the PID Act, she be reinstated;[14]
[14] The application for final relief, section 3, para. 5.1, ARB, page 325.
·an order, pursuant to the IR Act and the PID Act, that the Council, Mayor Smith and the Councillors pay her lost remuneration as a result of the termination of her employment;[15] and
·an order, pursuant to the IR Act and the PID Act, for her continuity of service with the Council[16] ('the application for final relief' or 'Ms Kelsey's application for final relief').
[15] The application for final relief, section 3, para. 5.3, ARB, page 325.
[16] The application for final relief, section 3, para. 5.4, ARB, page 325.
[13]Ms Kelsey made various allegations against Mayor Smith and the Councillors in respect of the PID Act. Relevantly to the application to amend, Ms Kelsey claimed that:
·Mayor Smith and the Councillors were politically affiliated with each other, and the Councillors were aligned with each other and Mayor Smith in relation to her performance, probation and employment matters;[17]
[17] The application for final relief, section 4, paras. 3.24-3.25, ARB, pages 329-331.
·each of the Councillors voted to terminate her employment because she had made the Council Complaint and the CCC Referral (which Ms Kelsey defined in the application for final relief as the '… PID')[18] in that they were politically aligned with Mayor Smith and the Councillors were aligned with each other and Mayor Smith in relation to her performance, probation and employment matters;[19]
[18] The application for final relief, section 4, para. 19.
[19] The application for final relief, section 4, paras. 14.16, 19 and 23.1 (g), 23.2 (g), 23.3(g), 23.4 (f), 23.5(f), 23.6(g) and 23.7(f), ARB, pages 342 and 349-351.
·the decision by each of the Councillors to vote to terminate her employment:
- caused detriment to her within the meaning of s 40 of the PID Act;[20] and
[20] The application for final relief, section 4, paras. 22.1 and 22.2, 22.3 and 22.4, 22.5 and 22.6, 22.7 and 22.8, 22.9 and 22.10, 22.11and 22.12, and 22.13 and 22.14, ARB, pages 343-348.
- was taken because, or substantially because, she had made the PID;[21] and
[21] The application for final relief, section 4, paras. 23.1, 23.2, 23.3, 23.4, 23.5, 23.6, and 23.7, ARB, pages 349-351.
·the decision of the Council to terminate her employment:
- caused detriment to her within the meaning of s 40 of the PID Act;[22] and
- was taken because, or substantially because, she had made the PID.[23]
[22] The application for final relief, section 4, paras. 14.10-14.16 and 20.1(j), ARB, pages 342-344.
[23] The application for final relief, section 4, para. 22.15, ARB, page 349.
[14]Ms Kelsey also made various allegations in respect of the IR Act. Relevantly to the application to amend, Ms Kelsey claimed that:
·she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act:
- by commencing her proceeding in the Commission on 1 December 2017 ('the QIRC proceeding');[24] and
[24] The application for final relief, section 4, para. 28 (a4), ARB, page 352.
- by making the Council Complaint, the CCC Referral and the s 176B Complaint;[25] and
[25] The application for final relief, section 4, para. 28 (a)-(c), ARB, pages 352-353.
·the termination of her employment by the Council:
- was adverse action within the meaning of s 282(1) of the IR Act;[26] and
[26] The application for final relief, section 4, para. 28.1 (l), ARB, page 353.
- the adverse action was engaged in by the Council for reasons that included that she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act by making the Council Complaint, the CCC Referral, the s 176B Complaint, and by commencing the QIRC proceeding;[27] and
[27] The application for final relief, section 4, paras. 28 and 28.2 (a), ARB, pages 353-354.
- was a breach of s 285 of the IR Act;[28] and
·she had experienced adverse action as a result of the actions of each of the Councillors in voting to terminate her employment,[29] which was engaged in by the Councillors for reasons that included that she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act by making the Council Complaint, the CCC Referral, the s 176B Complaint, and by commencing the QIRC proceeding;[30] and
·the Council was vicariously liable and otherwise liable for the impugned acts of each of the Councillors and each of the Councillors was taken to have contravened s 285 of the IR Act because they were involved in the Council's contravention.[31]
[28] The application for final relief, section 4, para. 25, ARB, page 351.
[29] The application for final relief, section 4, paras. 30.1(g), 30.6(e), 30.11(e), 3.16(d), 30.21(c), 30.26(e), and 30.31(c), ARB, pages 356-359.
[30] The application for final relief, section 4, paras. 28 and 30.2, 30.7, 30.12, 3.17, 30.22, 30.27, and 30.32, ARB, pages 356-361.
[31] The application for final relief, section 4, paras. 30.3-30.5, 30.8-30.10, 30.13-30.15, 3.18-30.20, 30.23-30.25, 30.28-30.30, and 30.33-30.35, ARB, pages 356-361.
[15]The Council, Mayor Smith and the Councillors denied that they had engaged in any conduct for a proscribed reason. The Council relevantly responded by alleging that the reasons for the Councillors voting to terminate Ms Kelsey's employment were not for the reasons alleged by Ms Kelsey in the application for final relief.[32] The Councillors relevantly responded by alleging that they did not vote to terminate Ms Kelsey's employment for the reasons alleged by her.[33]
[32] The Response of the Logan City Council dated 17 April 2018 ('the Council's response'), paras. 28 and 39, ARB, pages 370 and 372.
[33] The Response of the Third to Ninth Respondents dated 18 April 2018 ('the Councillors' response'), paras. 23.1-23.7 and 30.1-30.35, ARB, pages 411 and 413-417.
[16]By the Primary Decision, the Vice President ordered that the application for final relief, against the Council, Mayor Smith and the Councillors, be dismissed.[34] In doing so, the Vice President found that each of the Councillors, in voting to terminate Ms Kelsey's employment, did not do so for a proscribed reason.[35] By further decision dated 30 August 2022, the Vice President ordered that each party bear their own costs in relation to the proceeding before the Commission.[36]
[34] Primary Decision (n 1) [823].
[35] Ibid [423] the Third Respondent, Councillor Cherie Dalley ('Cr Dalley'), [509] the Sixth Respondent, Councillor Laurence Smith ('Cr Smith'), [537] the Seventh Respondent, Councillor Phillip Pidgeon ('Cr Pidgeon'), [582] the Fifth Respondent, Councillor Stephen Swenson ('Cr Swenson'), [622] the Fourth Respondent, Councillor Russell Lutton ('Cr Lutton'), [692] the Eighth Respondent, Councillor Trevina Schwarz ('Cr Schwarz') and [736] the Ninth Respondent, Councillor Jennifer Breene ('Cr Breene').
[36] Kelsey v Logan City Council & Ors (No. 9) [2022] QIRC 342.
[17]By the application to appeal, the Respondents were the Council, Mayor Smith and the Councillors.
[18]The application to amend, which was supported by affidavits of Ms Kelsey and her former solicitor, contains 27 proposed grounds of appeal, namely:
·12 grounds of appeal, some of which contain sub-grounds of appeal, alleging errors of law; and
·15 grounds of appeal alleging errors of mixed law and fact, some of which contain sub-grounds of appeal ('the proposed grounds of appeal').
[19]Ms Kelsey also applied for an order that her appeal, as against Mayor Smith, be dismissed.
[20]Following those events:
·by order of the President of the Court dated 6 May 2022, Ms Kelsey's application to amend was dismissed;[37]
·by further order of the President dated 14 July 2022, Ms Kelsey was ordered to pay the Council's and the Councillors' costs of the proceeding before the Court;[38] and
·by orders of the Court of Appeal dated 25 November 2022, Ms Kelsey's appeals against the two orders of the Court were allowed and Ms Kelsey's application to amend was remitted to this Court.[39]
[37] Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [129] (Davis J, President).
[38] Kelsey v Logan City Council & Ors (No. 3) [2022] ICQ 021, [51] (Davis J, President).
[39] Kelsey v Logan City Council & Ors [2022] QCA 238, [52] (McMurdo and Flanagan JJA and Freeburn J).
[21]By email sent from Ms Kelsey's current solicitors to my chambers on 14 December 2022, the parties, by agreement, proposed:
·that Ms Kelsey's application to amend and her substantive appeal be heard together in a three day hearing; and
·certain orders for such a hearing ('the parties' agreed proposal').
[22]Subsequently, the Court made two Directions Orders that reflected the parties' agreed proposal. Not all of the proposed grounds of appeal were argued by Ms Kelsey before this Court.
[23]In its written submissions to this Court, the Council described its position, and the position of the Councillors, following the remittal of the application to amend back to this Court, in the following way:
4. By reason of the manner in which the matter was dealt with by the Court of Appeal, the First and Third to Ninth Respondents have agreed to the application seeking leave to amend the non-compliant Notice of Appeal being listed together with the substantive appeal now sought to be argued by the Appellant. As a consequence, this Court is now asked, firstly, to decide the question as to whether leave to amend the Notice to Appeal should be granted and, secondly, if such leave is to be granted (whether in whole or in part), to hear that appeal.
[24]Because of the Directions Orders made, the parties, before this Court, fully argued whether the Primary Decision was affected by certain errors of law and, for reasons discussed later, whether the Primary Decision was affected by the categories of complaint of errors of law and the categories of complaint of errors of fact argued by Ms Kelsey; and whether it is in the public interest for leave to be granted for Ms Kelsey to pursue the latter complaints about errors of fact.
[25]Because of the specific errors and categories of complaint about the Primary Decision pursued, in submissions before this Court, the parties generally referred to '..the PID' and did not always distinguish between the Council Complaint, the CCC Referral or the s 176B Complaint in respect of the different factual circumstances upon which Ms Kelsey made claims under the PID Act and under the IR Act. Further, the parties did not distinguish between the claims made under the PID Act and under the IR Act. For reasons that will become clear, such distinctions are not necessary to understand my reasons. As a consequence, where, in these reasons, reference is made to the '…public interest disclosure' or to the '…PID', that should be taken to be a reference to the Council Complaint, the CCC Referral and the s 176B Complaint relevant to the particular claim made by Ms Kelsey.
The Primary Decision
[26]Ms Kelsey's application for final relief was heard over 23 days between 17 December 2018 and 10 June 2020. The reasons given in the Primary Decision cover 153 pages made up of 823 paragraphs.
[27]The Primary Decision was structured in the following manner.
[28]After an introduction, the Vice President:
·set out the applicable legislation and the key concepts in the applicable legislation as sought to be enlivened by Ms Kelsey;[40]
·set out the law in relation to onus of proof and in respect of the operation s 306 of the IR Act ('Reasons for action to be presumed unless proved otherwise');[41]and
·gave a background to the evidence and an overview of Ms Kelsey's evidence.[42]
[40] Primary Decision (n 1), [20]-[73].
[41] Ibid [74]-[84].
[42] Ibid 85]-[97].
[29]His Honour then provided a summary of the key issues including, relevantly to the arguments made by Ms Kelsey to this Court in respect of her application to amend:
·an event referred to as 'Relay for Life';[43]
[43] Ibid [117]-[123].
·the probationary process concerning Ms Kelsey's employment;[44]
[44] Ibid [124]-[151].
·Ms Kelsey's making of the Council Complaint, the CCC referral and the s 176B complaint[45] and the impact of the Council Complaint and the CCC Referral;[46]
[45] Primary Decision (n 1), [152]-[155].
[46] Ibid [156]-[162].
·the conduct of a process and report by Ms Rachel Hunter ('the Hunter process' or 'the Hunter report');[47]
[47] Ibid [163]-[171].
·Ms Kelsey's commencement of proceedings in the Queensland Industrial Relations Commission;[48]
[48] Ibid [172]-[174].
·the 'USA Delegation';[49]
[49] Ibid [175]-[180].
·Acceptable Request Guidelines ('ARGs');[50]
[50] Ibid [181]-[197].
·the seating arrangements for councillors' committee meetings;[51]
[51] Ibid [233]-[240].
·councillor updates and levels of information provided to councillors;[52]
·the termination of Ms Kelsey's employment;[53] and
·WhatsApp messages that involved various persons including Mayor Smith and a number of the Councillors ('the WhatsApp messages').[54]
[52] Ibid [246]-[253].
[53] Ibid [254]-[268].
[54] Ibid [269]-[274].
[30]The Vice President then, separately, summarised the evidence of each Councillor and, in doing so, referred to their sworn reasons for voting to dismiss Ms Kelsey. The Vice President then conducted an assessment of the evidence of each of them in respect of coming to a determination about what motivated them to vote to dismiss Ms Kelsey, which his Honour found was not for proscribed reasons.[55]
[55] Ibid Cr Dalley at [350]-[461], Cr Smith [462]-[509], Cr Pidgeon at [510]-[537], Cr Swenson at [538]-[582], Cr Lutton, [583]-[622], Cr Schwarz at [623]-[692] and Cr Breene at [693]-[736].
[31]The Vice President then gave reasons why his Honour dismissed Ms Kelsey's application for final relief in respect of the IR Act and the PID Act, as against the Council, Mayor Smith and the Councillors.[56] That included a detailed assessment of why his Honour rejected one of the key claims made by Ms Kelsey, namely, the alleged alignment between Mayor Smith and the Councillors, and between the Councillors, in relation to Ms Kelsey's performance, probation process and her employment ('Ms Kelsey's alignment claim').[57]
[56] Ibid [737]-[823].
[57] Primary Decision (n 1), [767]-[787].
The principal issue this Court is required to determine
[32]Ms Kelsey, before this Court, submitted:
·that she was seeking leave '… to regularise her' application to appeal by the substitution of her application to amend, and that issue is related to whether the proceeding ought to be set aside under r 226(2)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules');[58] and
·the issue should be approached by the Court, in part, by considering if the application to amend raised arguable grounds of appeal.[59]
[58] Ms Kelsey's principal outline of submissions to this Court filed on 7 August 2023 ('Ms Kelsey's principal submissions'), paras. 181-182.
[59] Ms Kelsey's principal submissions, paras. 183-184.
[33]In her written submissions, Ms Kelsey submitted:
188. Even on their face, the reasons for the decision demonstrate the incorrect application of legal principle and factual findings that are not supported by a disclosed path of reasoning. Those errors had a material impact on the disposition of the proceeding. When attention is paid to the vast tracts of evidence and submissions that were not dealt with by the Vice President, the obvious injustice created by the decision is further apparent.
…
190. In those circumstances, and in the absence of any demonstrable prejudice on the part of the individual respondents, it is in the interests of justice that leave be granted to allow Ms Kelsey to amend her application to appeal. This is particularly so having regard to the extreme caution that an appellate body ought to exercise before depriving an appellant the right to appeal where they have filed an appeal in time but in non-compliance with the relevant court rules.
[34]The Council did not oppose the grant of leave for Ms Kelsey to amend her application to appeal, but '… with one significant qualification', namely, that the leave of the Court is required, pursuant to s 557(2) of the IR Act, for Ms Kelsey to appeal on grounds other than error of law or excess, or want, of jurisdiction. The Council opposed leave being granted for Ms Kelsey to amend her application to appeal to include those grounds.[60]
[60] The submissions of the Logan City Council to the Court filed on 8 September 2023 ('the Council's submissions'), paras. 5-6.
[35]The Councillors submitted that the Court should not grant leave to Ms Kelsey to regularise her appeal, because, for the reasons they advance, her appeal does not enjoy sufficient prospects of success.[61]
[61] The submissions of the Third to Ninth Respondents to the Court filed on 16 September 2023 ('the Councillors' submissions'), para. 165.
[36]Despite the way the proceeding before me was conducted, having regard to the remittal of Ms Kelsey's application to amend by the Court of Appeal, the principal issue this Court is required to determine is whether the Court should grant Ms Kelsey's application to amend. Ms Kelsey submitted,[62] in reliance on the decision in Gambaro v Workers' Compensation Regulator ('Gambaro'),[63] the issue of whether she should have leave '…to regularise' is related to whether the proceeding ought to be set aside under r 226(2)(a) of the Rules, and, in particular, whether her proposed grounds of appeal raise an arguable case on appeal. That submission cannot be accepted.
[62] Ms Kelsey's principal submissions, paras. 183-184.
[63] [2017] ICQ 005, [15]-[17] (Martin J, President).
[37]In Gambaro, the unrepresented appellant filed an application to appeal that did not comply with the Rules in that it did not state any concise grounds of appeal. An application was made by the respondent to set aside the appeal under r 226(2)(a) of the Rules for those reasons. In allowing the respondent's application, and dismissing the appeal under r 226, Martin J, President found that the notice of appeal did not disclose an arguable case. His Honour also found that setting aside the notice of appeal to allow the appellant to amend his notice of appeal would not change that result, there were no other grounds upon which the appellant might rely and, because it was an application without merit, it was an abuse of process and should not be allowed to remain on foot.[64] The present circumstances are different from Gambaro. In that case there was no application to amend. The focus was on whether the grounds of appeal, filed within the limitation period, disclosed an arguable case in light of an application by the respondent to dismiss the appeal under the Rules for non-compliance with the Rules. The present circumstances are that Ms Kelsey is a represented appellant proposing to amend her application to appeal by way of clearly articulated grounds of appeal, that comply with the Rules, filed after the appeal limitation period.
[64] Ibid [49].
[38]The principles to apply in the consideration of leave to amend an application to appeal are settled. The principal consideration is the prospect of the appeal succeeding. [65] In Ms Kelsey's case, the principal consideration is the prospect of the proposed grounds of appeal, as pressed by her before this Court, succeeding.
[65] Burns v Grigg [1967] VR 871, 782 (Barry J, Little and Gowans JJ at 874 agreeing), He v Aloe & Co Pty Ltd [2006] VSC 150, [5] (Maxwell ACJ and Eames JA), Saville v Q-Comp and Anor [2007] ICQ 28; (2007) 185 QGIG 243, 244 (President Hall), H v P [2011] WASCA 78, [92] (Murphy JA, Pullin JA at [1] and Buss JA at [2] agreeing) and Kelsey v Logan City Council & Ors [2022] QCA 238, [41]-[43] (McMurdo and Flanagan JJA and Freeburn J).
[39]In Workers' Compensation Regulator v Langerak,[66] one of the issues Martin J, President had to consider was an application by the Workers' Compensation Regulator to amend its application to appeal to pursue a new ground of appeal. In allowing the Regulator to pursue that new ground of appeal (and in fact allowing the appeal on that new ground) his Honour relevantly stated:
[66] [2020] ICQ 002 ('Langerak').
[57] In Saville v Q-COMP & the State of Queensland (acting through the Department of Corrective Services), Hall P set out the considerations that affect the decision to grant leave to a party to amend its application to appeal:
“In exercising the discretion to grant leave to amend grounds of appeal, an important matter is the prospect of the Appeal succeeding; see Burns v. Grigg [1967] VR 871 at 872 per Barry J with whom Little and Gowans JJ agreed, and Mitchelson v Mitchelson (1979) 37 FLR 289 at 289 per Smithers J. Here, there is no likelihood of an appeal upon the grounds at proposed paragraphs 1(i), (ii) and (iv), 2 and 3 succeeding. The firm general rule is that a party will not be permitted to raise a point for the first time upon appeal where, had the point been raised in the court below, evidence could have been given which by any possibility could have prevented it from succeeding, compare Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. The truth is that if the proposed new grounds had been raised by the original application to appeal, the Appellant would not have been permitted to rely upon them.”
[58] Accordingly, in determining whether to grant leave to amend the application to appeal I will consider the prospect of the appeal succeeding on the proposed new ground.[67]
[67] Citation omitted.
[40]Other relevant considerations may include the explanation given by an appellant necessitating the amendment and any prejudice that may be suffered by a respondent[68] or if the proposed amendment would be oppressive to a respondent.[69]
[68] Langerak (n 66) [88] (Martin J, President).
[69] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 391 (Mason CJ and Deane and Dawson JJ) and Cosmopolitan Hotel (Vic) Pty Ltd & Anor v Crown Melbourne [2014] VSCA 353; (2014) 45 VR 771, [36] (Warren CJ).
[41]Due to the way the matter was argued before me, the issues of Ms Kelsey's explanation necessitating her application to amend and any prejudice or oppression to the Council and the Councillors, do not attract the prominence they might otherwise have had.
[42]The principal issue for my determination is whether the Court should, pursuant to s 539(d)[70] of the IR Act or, pursuant to r 226(2)(f)[71] of the Rules, allow Ms Kelsey's application to amend.
[70] Section 539 of the Industrial Relations Act 2016 relevantly provides:
539 Powers incidental to exercise of jurisdiction
Except as otherwise provided for by this Act or the rules, the court, commission or registrar may–
…
(d) allow claims in the proceedings to be amended on terms that appear fair and just.
[71] Rule 226 of the Industrial Relations (Tribunals) Rules 2011 relevantly provides:
226 Effect of failure to comply with rules
(1) A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.
(2) If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may–
…
(f) make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.
[43]Ms Kelsey's written and oral submissions were framed in such a way as to address specific grounds of appeal alleging errors of law, categories of complaint about errors of law and categories of complaint about errors of mixed law and fact. The categories of complaint about errors of law and errors of mixed law and fact were, in general, not tied back to specific grounds, or sub-grounds, of appeal.
[44]The Council and the Councillors framed their written and oral submissions in response to Ms Kelsey's written and oral submissions.
[45]Having regard to the parties' agreed proposal and the nature of the parties' submissions, I will determine Ms Kelsey's application to amend by dealing with the specific grounds of appeal alleging errors of law and by dealing with the categories of complaint of errors of law she has addressed. I have had the benefit of full argument about those matters. In respect of dealing with an appeal by reference to categories of complaint, such an approach has been adopted by appellate courts having regard to the nature of the submissions made[72] or where there are overlapping appeal grounds and overlapping submissions.[73] I will determine if the categories of complaint of errors of law, to the extent they are referrable to Ms Kelsey's proposed grounds of appeal about the errors of law that she presses, are made out. Later in these reasons, I deal with my approach to the categories of complaint about errors of fact addressed by Ms Kelsey.
PART THREE
[72] See, eg, Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211, [30] (Branson, Nicholson and Jacobson JJ).
[73] See, eg, Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549 ('Sydneywide'), [48]-[49] and [66] (Weinberg and Dowsett JJ) and Hamod v New South Wales [2011] NSWCA 375, [4] (Beazley JA, with Giles JA at [829] and Whealy J at [830] agreeing).
The nature of the Court's appellate function
[46]In terms of assessing the prospects of Ms Kelsey's appeal, on the pressed grounds of appeal as contained in the application to amend, it is appropriate to consider the Court's appellate function.
[47]Section 557(1) of the IR Act relevantly provides that a person aggrieved by a decision of the Commission may appeal against the decision to the Court on the ground of error of law or excess, or want, of jurisdiction.
[48]Section 557(2) of the IR Act further provides that a person aggrieved by a decision of the Commission may appeal against the decision to the Court, with the Court's leave, on a ground other than error of law or excess, or want, of jurisdiction. Section 557(4) of the IR Act provides that if a person may appeal a decision of the Commission under s 557(1) and s 557(2), the person may only appeal against the decision with the Court's leave on a ground mentioned in s 557(2).
[49]Section 565 of the IR Act ('When leave for appeal must be given') relevantly provides that if an application for leave to appeal is made under s 557, the Court must give leave if it is satisfied it is in the public interest to do so and may not give leave otherwise.
[50]Section 567(1) of the IR Act relevantly provides that an appeal to the Court is by way of re-hearing on the record. Sub-section 567(2) provides that the Court may hear evidence afresh or additional evidence if the Court considers it appropriate to effectively dispose of the appeal.
[51]Sub-section 558(1) of the IR Act provides that on an appeal under s 557, the Court may:
·dismiss the appeal; or
·allow the appeal, set aside the decision and substitute another decision; or
·allow the appeal and amend the decision; or
·allow the appeal, suspend the operation of the decision and remit the matter, with or without directions to the Commission to act according to law.
Appeals by way of rehearing
[52]In Allesch v Maunz,[74] Gaudron, McHugh, Gummow and Hayne JJ described the nature of an appeal by way of rehearing:
23. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.[75]
[74] [2000] HCA 40; (2000) 203 CLR 172. See also Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [57]-[58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[75] Citations omitted.
[53]Further, as Gibbs CJ, Wilson, Brennan and Dawson JJ stated in Coulton v Holcombe:[76]
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
[76] [1986] HCA 33; (1986) 162 CLR 1, 7.
[54]In Minister for Immigration and Border Protection v SZVFW[77] Gageler J stated of an appeal by rehearing:
30. Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to “give the judgment which in its opinion ought to have been given in the first instance”. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. “[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”
31. For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.[78]
[77] [2018] HCA 30: (2018) CLR 541.
[78] Citations omitted.
[55]A further consideration is whether any error, if established, would have any relevant effect on the decision at first instance. In De Winter v De Winter,[79] Gibbs J, albeit in relation to errors going to the assessment of the credit of a witness, put the issue this way:
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations. [80]
The public interest and the appeal on grounds other than error of law or excess, or want, of jurisdiction
[79] (1979) 23 ALR 211, 217-218.
[80] See also Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 644-645 (Shepherdson J, Campbell CJ at 639 and Kelly J at 640 agreeing) as to errors of law, Sydneywide (n 73), [4] (Branson J) as to errors of subordinate or basic facts, and as to errors in steps in the process of legal reasoning leading to an ultimate conclusion of law and McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7, [4] and [5] (Martin J, President) as to errors of law where there is no evidence of a fact.
[56]In her application to amend, Ms Kelsey contends:
Public interest consideration
28. Having regard to s 565 of the IR Act, it is in the public interest for the Court to grant the applicant leave to appeal on the grounds referred to at paragraphs 13 to 27 above because:
(a)the relevant factual errors, if made out, manifest an injustice because they were, in combination, critical to the disposition of the proceeding; and
(b)of the importance in upholding the protections from reprisals provided under the PID Act, and the IR Act, where such reprisals are demonstrated on the facts.
[57]Ms Kelsey also contends that it is in the public interest that she be given leave to appeal about alleged errors of fact because:
·her '…PID complaint' went to the heart of the functioning of one of the largest local governments in Australia;[81] and
·decisions should be given in a timely manner and, through no fault of her own, she was deprived of the opportunity to have her case judged when the evidence on which it was based '…. was fresh in the Vice President's mind.'[82]
[81] Ms Kelsey's principal submissions, para. 180.
[82] Ms Kelsey's principal submissions, para. 180.
[58]In her written submissions,[83] Ms Kelsey made four propositions about the matter referred to in paragraph 28(a) of the application to amend, namely:
·had the errors and failures in the Primary Decision (she has alleged) not occurred, there was a realistic possibility that the decision in fact made could have been different, citing as authority for that proposition Nathanson v Minister for Home Affairs ('Nathanson')[84] and MZAPC v Minster for Immigration and Border Protection ('MZAPC');[85]
·accordingly, it is appropriate that those matters be corrected on appeal;
·this '… realistic possibility' test requires a counterfactual analysis, undertaken '… as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined', citing as authority for that proposition the judgment of Gageler J in Nathanson;[86] and
·the assessment, referred to immediately above, is judged without regard to any subjective findings that the Vice President otherwise made, citing as authority for that proposition DQM18 v Minister for Home Affairs ('DQM18').[87]
[83] Ms Kelsey's principal submissions, para. 19.
[84] [2022] HCA 26; (2022) 403 ALR 398 ('Nathanson'), [30]-[33] (Kiefel CJ, Keane and Gleeson JJ).
[85] [2021] HCA 17: (2021) 273 CLR 506 ('MZAPC'), [1]-[3] and [31]-[60] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[86] Nathanson (n 84), [46] (Gageler J). Ms Kelsey incorrectly referenced paragraph [42] of the judgment of Gageler J as authority for the proposition stated.
[87] [2020] FCAFC 110; (2020) 278 FCR 529 ('DQM18'), [113]-[117] (Bromberg and Mortimer JJ).
[59]The three cases cited by Ms Kelsey involved applications for judicial review of administrative decisions (about migration matters) which were allegedly the subject of jurisdictional error and where it was contended the errors made were material such that there was a realistic possibility the decisions made could have been different.
[60]These matters were not pressed in Ms Kelsey's principal oral submissions.
[61]In her oral submissions in reply,[88] Ms Kelsey referred to specific passages of the judgments of Kiefel CJ, Gageler, Keane and Gleeson JJ,[89] and of Edelman J in MZAPC as authority for the proposition that the principle of materiality, so as to warrant a new administrative hearing, was taken from the principles that applied to the grant of new civil trials on appeal. Ms Kelsey emphasised[90] the judgment of Edelman J, namely:
179 It is therefore now long established that the general test for the refusal of a new civil trial under legislation or rules of court despite an error of law is that “the court might refrain from granting a new trial if it was affirmatively satisfied that the actual verdict returned could not have been affected". And as to new criminal trials, in Weiss this Court explained that the common form proviso was enacted against the shared history of the grant of new civil and criminal trials following legal error. Like the condition for a new civil trial, it will usually be sufficient to engage the proviso if the error was immaterial in the sense that the appellant was not deprived of the possibility of acquittal because conviction by the jury was "inevitable". And also like the conditions for a new civil trial, "some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable". This Court in Weiss said that a "significant denial of procedural fairness at trial" was an example of such a fundamental error.[91]
[88] T 3-53, l 49 to T 3-56, l 9.
[89] MZAPC (n 85), [41], [43], [45] and [60].
[90] T 3-55, ll 36-38.
[91] Citations omitted.
[62]As I understand Ms Kelsey's four propositions, as set out in paragraph [58] above, and by her oral submissions in reply, she contended, assuming that the Vice President made the factual errors as identified by her, there was a realistic possibility that the Vice President's decision could have been different, and that conclusion is apt to determine that it is in the public interest that leave should be given to her to appeal on her pressed categories of complaints of errors of fact.
[63]I do not find these submissions meritorious in respect of the point Ms Kelsey was trying to make about why it is in the public interest that she be given leave to appeal against the Primary Decision on her pressed categories of complaints of errors of fact. This is for three reasons.
[64]First, the cases cited as authority for Ms Kelsey's four propositions do not concern a consideration of the issues that go to determining the public interest for leave to be given to appeal about alleged errors of fact. They concern the question of whether errors made by administrative decision makers are material to the decision so as to involve jurisdictional error.
[65]The facts in Nathanson were that the appellant had been denied procedural fairness before the Administrative Appeals Tribunal ('the AAT') in respect of a review sought of a decision made by the delegate of the relevant Minister not to revoke the mandatory cancellation of the appellant's visa to remain in Australia.[92] The question before the High Court was whether the denial of procedural fairness by the AAT was material to its decision, to affirm the delegate's decision, so as to involve jurisdictional error.[93] The relevant part of the decision of Gageler J, which was emphasised by Ms Kelsey, was:
[46] SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.
[92] Nathanson (n 84), [3]-[4].
[93] Ibid [1].
[66]This passage is about establishing the threshold for materiality in respect of the question of whether a denial of procedural fairness by an administrative decision maker involved jurisdictional error. This part of the decision was in response to a submission made in Nathanson that sometimes it is incumbent on an applicant, who seeks to establish the materiality of a denial of procedural fairness, to demonstrate by evidence how an opportunity to be heard would have been used had it been afforded.[94]
[94] Nathanson (n 84), [43]-[44].
[67]MZAPC involved an application made by the appellant for a protection visa. A delegate of the Minister refused the protection visa and the appellant applied to the Refugee Review Tribunal ('the RRT') for a merits review of the decision.[95] There was a failure by the RRT, to disclose to the appellant, a notification referencing certain specified documents about his conviction of certain offences which had been given to it by the Secretary of the relevant Commonwealth department.[96] This was accepted by the parties to be a breach of an implied condition of procedural fairness.[97] The question before the High Court was whether that breach was material to result in jurisdictional error.[98] Kiefel CJ, Gageler, Keane and Gleeson JJ relevantly held:
51 Just as a court called upon to determine whether a new trial should be ordered must be careful not to assume the function of the primary trier of fact (whether it be a judge or a jury), so a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker. Faced with a procedural irregularity having been shown to have occurred in a decision-making process, the court is nevertheless in each case charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred.
[95] MZAPC (n 85), [5]-[7].
[96] Ibid [8]-[16].
[97] Ibid [17].
[98] Ibid [1].
[68]In DQM18 the relevant Assistant Minister refused to revoke the mandatory cancellation of the appellant's visa. The judicial review of the decision sought by the appellant was dismissed.[99] On appeal to the Full Court of the Federal Court of Australia, the question was whether the errors made by the decision maker in failing to consider certain representations about the appellant were material so as to involve jurisdictional error. The majority[100] relevantly stated about the task of determining the issue of materiality:
115 Further, the exercise to be undertaken by the reviewing court is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision. Otherwise, where there are emphatic adverse findings in a particular decision, then even egregious breaches of an “inviolable” limitation (eg obvious misconstruction of a statute; obvious denial of procedural fairness) would be held not to be an error of a jurisdictional kind because the subjective state of mind of the particular decision-maker, imputed by the Court on the basis of the rest of the decision‑maker’s reasons, would prevail in the materiality analysis. The proposition is not that a decision-maker is free to contravene an inviolable limitation on her or his exercise of power so long as she or he makes her or his findings so emphatic that a reviewing court can say that no matter what the error, the decision-maker in question would not have changed her or his mind. That would effectively immunise decisions from scrutiny on judicial review. We do not consider that was the intent of the majority’s statement of principle in SZMTA, for that would indeed overthrow a considerable amount of the jurisprudence of that Court itself.
[99] DQM18 (n 87), [11]-[14].
[100] Bromberg and Mortimer JJ.
[69]Secondly, the judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC, to which I was referred in Ms Kelsey's oral submissions in reply, concerned, in responding to a submission that the respondent bore the onus to disprove materiality, certain errors of law in civil trials raised in appeals, namely, where evidence was wrongly rejected at trial[101] or where there was procedural unfairness in a trial.[102] Similarly, the specific passage of the judgment of Edelman J in MZAPC, emphasised by Ms Kelsey, concerns the circumstance where there was an error of law in a civil trial.
[101] MZAPC (n 85), [42]- [44].
[102] Ibid [45] -[60].
[70]Thirdly, the submissions conflate the issue of materiality, in the determination of whether an administrative decision maker engaged in jurisdictional error, with the issue of whether it is in the public interest to give leave to appeal on the grounds of errors of fact by virtue of the combined effect of s 557(2) and s 565 of the IR Act.
[71]Despite the analogical reference, in the cases referred to by Ms Kelsey, to the principles observed by an appellate court in respect of whether or not to order a new civil trial where there was legal (as opposed to factual) error, Ms Kelsey's reliance on these cases is at odds with the purpose of s 557(2) of the IR Act. While, in an appropriate case, the private interests of a party may be relevant in determining where the public interest lies, [103] the question involved in the application of s 557(2) of the IR Act is not determinatively answered by considering if there are errors of fact where it may be objectively assessed that, on the balance of probabilities, the decision appealed against could have been different. The question is whether it is in the public interest to give leave to appeal on the asserted grounds of errors of fact.
[103] See for example Harvey v State of Queensland (Queensland Health) [2024] ICQ 10, [21]-[23] (Davis J, President).
[72]The Councillors submitted that:
·the manner in which the Legislature has restricted the right of appeal is significant in that the restriction is not conditional upon an applicant being able to show a prima facie case of factual error, or that an inability to appeal on matters of fact would visit some personal hardship on them;
·rather, the Legislature has restricted the right of appeal to matters that are in the public interest, and the possibility that factual error may remain uncorrected is embraced by the form of the limitation chosen by Parliament, therefore, something more than the existence of error must be shown; and
·the choice of the Legislature is understandable in that hearings as to questions of fact are lengthy and impose a substantial burden on the judicial system and accordingly, under the IR Act, questions of fact are to be tried at first instance and not re-tried on appeal, except in circumstances where it is in the public interest.[104]
[104] The Councillors' submissions, paras. 14-15.
[73]The Council made similar submissions.[105]
[105] The Council's submissions, paras. 180-181.
[74]The submissions of the Councillors and the Council are correct. The purpose of the combined operation of ss 557(2) and s 565 of the IR Act is obvious from the text of those provisions. In Henning v State of Queensland,[106] Davis J, President stated:
[106] [2023] ICQ 009.
[12] Sections 557 and 565 together operate in this way:
1. Section 557 gives a right of appeal from the Commission to this Court.
2. Section 557(1) limits appeals as of right to ones based on grounds of error of law or excess or want of jurisdiction.
3. Section 557(2) provides for an appeal not as of right, but by leave of the Court, on grounds other than errors of law or excess or want of jurisdiction.
4.Section 565 of the IR Act limits the Court’s discretion to grant leave to circumstances where it is in the public interest to do so.
[75]The expression, '…in the public interest'[107] when used in a statute:
[C]lassically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view"
[107] O'Sullivan v Farrer[1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ) recently cited with approval in Jones v The Commonwealth [2023] HCA 34; (2023) 97 ALJR 936, [21] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).
[76]The ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.[108]
[108] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1, 5 (Mason CJ, Wilson and Dawson JJ). I note that in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, Mortimer CJ stated of the phrase, in the relevant statutory context of that case:
[77]In general, there is a public interest in the finality of litigation in that the scarcity of re-trials on the papers, and the tendency to limit appeals by way of hearing de novo to cases in which there is no full hearing or record of the hearing at first instance, are indications that public policy does not favour second chance hearings.[109] In Doyles Construction Lawyers v Serratore, a Full Bench of the Commission refused leave to appeal under s 342(3) of the Industrial Relations Act 1999. That section conferred discretion on the Full Bench, if the matter was important enough in the public interest, to give leave to appeal against a decision of the Commission on grounds other than error of law or jurisdictional error. Leave was refused for reasons that included that the Full Bench found that what it was really being asked to do was to '… review a decision of a tribunal of first instance to prefer one body of evidence over another.'[110]
[109] Doyles Construction Lawyers v Serratore [2002] QIRComm 21; (2002) 169 QGIG 196 ('Doyles'), 197 (President Hall, Commissioner Brown and Commissioner Asbury).
[110] Doyles (n 109), 197.
[78]Because one of the primary purposes of the IR Act is the resolution of industrial disputes, the disposal of a dispute in a manner that takes account of the interests of the disputants is within the scope and purpose of the IR Act, and the reference to 'public interest' is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for consideration.[111] The public interest may demand that leave be granted notwithstanding that there is no issue about setting a precedent[112] or that only the individuals in the proposed appeal are concerned.[113]
[111] Comalco Aluminium Ltd (Bell Bay) v O'Connor(No 2) [1995] IRCA 680; (1995) 61 IR 455, 479-480 (Wilcox CJ, and Keely J, Moore J at 485 agreeing), Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [70] (Davis J , President) and Cleal v State of Queensland (Queensland Health) [2023] ICQ 006, [85] (Vice President O'Connor).
[112] The Electrical Trades Union of Queensland v United Group Limited [2007] QIRC 88; (2007) 186 QGIG 611, 617 (President Hall, Deputy President Bloomfield and Commissioner Thompson).
[113] Doyles (n 109), 197.
[79]While not abandoning their principal submission that Ms Kelsey has not demonstrated it is in the public interest that she be granted leave under ss 557(2) of the IR Act, the Councillors submitted they would respond to those alleged errors to demonstrate why there are no errors of fact.[114] The Councillors submitted that the Court may wish to deal with those issues in any event.[115]
[114] The Councillors' submissions, para. 16 and T 3-19, ll 27-28.
[115] T 3-19, l 29.
[80]In written submissions, the Council submitted:
185. On balance, and with the benefit of written submissions on the part of the parties as to how the arguments relating to the appeals on fact are to be addressed, the Court is entitled to refuse leave to appeal in relation to those matters, so as to obviate the necessity of re‑arguing those issues in this appeal.
186. It is submitted that the Court should adopt that course.
[81]In determining Ms Kelsey's application to amend, my task is to assess the prospects of success of Ms Kelsey's grounds of appeal. Whether it would be in the public interest to give leave to Ms Kelsey to appeal about errors of fact is a matter that is finely balanced.
[82]Proposed grounds of appeal 13 to 27, to the extent they are pressed by the categories of complaint as addressed by Ms Kelsey, allege that the Vice President:
·failed to have regard to certain relevant considerations and evidence;[116]
[116] Proposed grounds of appeal 13 and 14.
·had regard to certain irrelevant considerations;[117]
[117] Proposed ground of appeal 15.
[750]In paragraph [817] of the Primary Decision, the Vice President referred to the criticisms made by the Councillors about Ms Kelsey's failure to directly confront some of the Councillors about their sworn reasons for voting to terminate Ms Kelsey's employment. In paragraph [818], the Vice President referred to paragraphs [27]–[29] of the decision in Curwen. At paragraph [819], the Vice President stated that issues of credit needed to be identified when a witness is being cross-examined and the hearing unfolds, and the failure to do so may leave the tribunal of fact unpersuaded as to the truth of the allegation. At paragraph [820] of the Primary Decision, the Vice President gave some examples of where the failure to cross-examine some of the Councillors left him unpersuaded as to the truth of the allegations made by Ms Kelsey. The Vice President stated:
[820] Let me briefly identify some examples. Cr Swenson’s inability to remember the identities of persons involved in group text messages and who were the authors of particular messages, was a deliberate ploy about matters which he knew the truth of was not put to him. It was not suggested to Cr Lutton that his reasons for voting to terminate Ms Kelsey as identified in his affidavits, were not his reasons; Cr Laurie Smith was not cross-examined about the contemporaneous note that he made evidencing his reasons; equally the assertion that he was overwhelmed by his close political and personal relationship with Mayor Smith was not put to Cr Smith; and in regard to the evidence of Cr Pidgeon, it was only suggested to him that his reasons were a "construct".
[751]In the often cited decision about the rule in Browne v Dunn, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, Hunt J relevantly stated:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.[682]
[682] [1983] 1 NSWLR 1, 16.
[752]A court has a discretion as to how to deal with non-compliance with the rule in Browne v Dunn, and the aim of the exercise of that discretion is to secure fairness having regard to the circumstances of the case.[683] That may include not allowing the defaulting party to make a submission about a particular subject upon which the opposing party was not cross-examined.[684]
[683] Payless Superbarn (NSW) Pty Ltd V O'Gara (1990) 19 NSWLR 551, 556 (Clarke JA, Priestley JA at 552 and Meagher JA at 560 agreeing).
[684] Ibid 556.
[753]As I have set out earlier, Ms Kelsey referred to eight paragraphs of the Primary Decision in respect of which she submits that the Vice President misapplied the rule in Browne v Dunn. I have had regard to those paragraphs.[685] On a plain reading of those paragraphs, none of them concern or deal with a failure by Ms Kelsey to comply with the rule in Browne v Dunn. Further, there is nothing in those paragraphs that, in connection with other paragraphs in the Primary Decision, indicate that his Honour was not taking into account submissions because of any alleged breach of the rule in Browne v Dunn.
[685] Paragraphs [299], [332], [625], [691], [763], [793], [817] and [820] of the Primary Decision (n 1).
[754]What is clear is that, having regard to the submissions made to the Vice President by the Councillors about Curwen, and from the eight paragraphs of the Primary Decision to which Ms Kelsey refers, the criticism the Vice President was making of the cross‑examination of the Councillors was not about the application of the rule in Browne v Dunn, but that the cross examination of the Councillors left him unpersuaded as to the submissions ultimately made by Ms Kelsey, namely, that the Councillors voted to terminate her employment for the proscribed reasons she claimed.
[755]Secondly, Ms Kelsey's annexure makes reference to the cross-examination of the Councillors in respect of the following headings:
·'Regarding knowledge of how others would vote including whether discussions occurred regarding votes, whether requests were made regarding votes etc';
·'Regarding alignment';
·'Regarding alignment generally';
·'Regarding the related issue of individual respondents taking steps within the WhatsApp group to organise a strategy discussion';
·'Examples where witness was challenged as to the true reasons for their conduct';
·'Regarding the specific conduct of the Mayor as having a causative impact on the vote';
·'Regarding alignment and influence of the Mayor on individual respondents'; and
·'Regarding general denials that the various reasons put by Cr Lutton were not the true reasons for his actions'.
[756]However, Ms Kelsey did not submit that the transcript references in her annexure demonstrate that it was put to the Councillors, in cross-examination, that:
·they knew that the other Councillors were going to vote to terminate Ms Kelsey's employment because she made a public interest disclosure; or
·they knew that the other Councillors were going to vote to terminate her employment for a prohibited reason.
[757]Similarly, Ms Kelsey did not submit that the transcript references in her annexure demonstrate that it was put, in cross-examination, that Mayor Smith influenced the Councillors' decisions in respect of Ms Kelsey because she had made a public interest disclosure about him.
[758]For the reasons I have given earlier, the Vice President's decision about the failure to cross-examine the Councillors was not about a failure to comply with the rule in Browne v Dunn. Rather, the Vice President's decision about the failure to cross‑examine the Councillors, as his Honour describes in paragraphs [332], [763], [793] and [820] of the Primary Decision, concerned his ability to determine the credit of the Councillors on a matter central to Ms Kelsey's case.
[759]Ms Kelsey also referred to paragraphs [625] and [691] which concern Cr Schwarz. In respect of Cr Schwarz, the Vice President relevantly decided:[686]
[686] Footnote omitted.
[624] Cr Schwarz's reasons for voting to terminate Ms Kelsey's employment are set out at her affidavit of 11 April 2018. Those reasons are:
a.Ms Kelsey had limited the communication between Council staff and the councillors;
b.Ms Kelsey had required Council staff to refer to councillors by their formal title which impeded a close and harmonious working relationship;
c.Ms Kelsey had aligned herself publicly by participating in the Relay for Life in costume with Cr Power;
d. Ms Kelsey had been unable to assist Cr Schwarz in respect of the issue that arose about the Cedar Grove Waste treatment plant;
e. Ms Kelsey insisted of having all information flow through the CEO which filtered the information received by Councillors;
f. Ms Kelsey disregarded the views of the Councillors in respect of the re‑organisation of Council committees;
g.Ms Kelsey disregarded the views of the Councillors in respect of the seating at committee meetings and adopted an approach which was likely to hinder the effective conduct of the meetings;
h. Ms Kelsey's conduct in relation to the Acceptable Request Guidelines, which Cr Schwarz viewed as a dereliction by Ms Kelsey of her duty to fully investigate required legislative changes before recommending those matters to Councillors;
i. Ms Kelsey's continued failure to adequately and promptly respond to requests for information and assistance, including, but not limited to, request about:
i.the Alma Park Zoo;
ii. Cr McIntosh;
iii.the Strategic Directions Presentation; and
iv.the CBF Allowance.
j. Ms Kelsey's poor management of Councillor complaints and in particular her apparent inability to deal with such matters privately and sensitively; and
k.Cr Schwarz's perception that Ms Kelsey was unable to perform her role in a manner that was impartial, specifically the Cr Schwarz had concerns about her apparent preference for Councillors Raven, Power and McIntosh.
[625] The Applicant made no attempt to undermine Cr Schwarz's reasons.
…
[691] None of the reasons advanced by Cr Schwarz for voting to terminate the employment of the Applicant were seriously challenged during cross-examination.
[760]In her annexure, Ms Kelsey referred to the examples in the transcript where Cr Schwarz '… was challenged as to the true reasons' for her conduct, namely at T 15‑101, ll 19-27 '… regarding use [of] Acceptable Request Guidelines to disguise the true reasons for termination' and T 15-22, ll 9-30 regarding the '… global re‑assertion that the various reasons given by Cr Schwarz in fact actuated his [sic] conduct'.
[761]In the first of these transcript references, Ms Kelsey put to Cr Schwarz that she (Cr Schwarz) did not take the ARGs into account when deciding to terminate Ms Kelsey. As referred to in paragraph [624], sub-paragraph h. of the Primary Decision, Ms Kelsey's conduct in relation to ARGs was one of the reasons given by Cr Schwarz to vote to terminate Ms Kelsey's employment. In the second of these transcript references (which is actually T 15-122, ll 9-30, ARB page 6464), Cr Schwarz was referred to all the reasons given in her affidavit for her decision to terminate Ms Kelsey's employment, it was put to her that none of those matters were her (Cr Schwarz) genuine reasons and that her genuine reasons to terminate Ms Kelsey's employment was that Ms Kelsey had lodged the PID and commenced legal action against the Council. Having regard to these transcript references, as expressly referred to in Ms Kelsey's annexure, the Vice President's finding at paragraph [691] of the Primary Decision was reasonably accurate.
[762]Other than the matter concerning the ARGs, the above transcript references do not reveal Cr Schwarz being specifically challenged about her other sworn reasons. In any event, there is certainly no suggestion in the Primary Decision that, in respect of Cr Schwarz, the Vice President felt bound not to take account of submissions made by Ms Kelsey that his Honour believed breached the rule in Browne v Dunn.
[763]From the transcript references in Ms Kelsey's annexure, it is the case that some witnesses were cross-examined about their reasons for voting to terminate Ms Kelsey's employment. However, I accept the Councillors' submissions that Ms Kelsey's case was that they were lying about their reasons because their alignment with Mayor Smith compelled them to vote the way they did. For the reasons given in paragraph [231], the Councillors' alleged alignment with Mayor Smith was an integral part of Ms Kelsey's case theory.
[764]The Vice President expressly dealt with this matter in paragraph [793] of the Primary Decision, namely:
[793] I accept that none of the Third to Ninth Respondents who voted to terminate the Applicant's employment were cross-examined in any material way about any specific act or omission of Mayor Smith nor was it suggested to them that it was anything that Mayor Smith did or did not do which caused their decisions. Accordingly, none of the Third to Ninth Respondents were given the opportunity to explain or deny any allegation that any particular conduct of the Mayor caused their decision to terminate the Applicant's employment.
[765]This paragraph was not about the application of the rule in Browne v Dunn. This paragraph was about the fact that the Councillors were not confronted directly, in cross‑examination, about a central aspect of Ms Kelsey's case theory. The Councillors submitted this failure hindered the Vice President's ability to assess their credibility. This is what the Vice President found. No error of law is revealed in that approach.
[766]Finally, in Ms Kelsey's reply submissions, it was contended that, on a fair reading of the Primary Decision and '… the exceedingly favourable credit findings that his Honour made as to the individual respondents', the Vice President appeared to have reasoned in a manner '… that exceeded the approach' in Curwen. Ms Kelsey submitted that this was apparent because where a matter was not the subject of cross‑examination, a clearly available inference is that the Vice President reasoned that '… he effectively had to put the matter out of his mind, rather than merely giving it more limited weight.' The inference was said to be available '… particularly because of the limited utility that extensive cross-examination would have had given how the individual respondents ran their case.'[687]
[687] Ms Kelsey's reply submissions, para. 98.
[767]In support of this submission, it was contended that the Councillors, in paragraphs [158] to [160] of their written submissions to this Court, accepted that they were cross‑examined on their knowledge of how others (namely, the other Councillors) were going to vote. It was submitted that because the Councillors routinely and steadfastly denied any knowledge of how the other Councillors were going to vote, pressing them to answer questions of what they knew as to why those same colleagues would vote in a certain way (that is for a prohibited reason) would have been pointless.[688]
[688] Ms Kelsey's reply submissions, para. 99.
[768]A similar issue to this last point made by Ms Kelsey was raised in Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers Appointed) (in liquidation) (Controllers appointed) (No 3) ('APCH').[689] In APCH, the Australian Securities and Investments Commission ('ASIC') brought proceedings against a company in liquidation and five defendant directors. It was alleged the directors contravened certain duties under the Corporations Act 2001. A relevant issue was whether ASIC had proven the defendant directors voted in favour of, or otherwise assented to, a specific resolution. The defendants' evidence was that the resolution was never before the Board and, therefore, none of them could have voted for it. One particular question was whether the second defendant voted in favour of the resolution.[690]
[689] [2013] FCA 1342.
[690] Ibid [493].
[769]The second defendant submitted that, having regard to Curwen, ASIC made a forensic choice to not explore, with the other defendant directors, whether he voted for the resolution or not. That contention was rejected by Murphy J who stated:
[499] Senior Counsel for Mr Lewski contended that ASIC made a forensic choice not to explore with the other Directors whether Mr Lewski voted for the resolution or not, and argued that I cannot be satisfied to the requisite standard that he did so. I do not agree. I am not satisfied that ASIC made such a forensic choice. There was no point in ASIC cross‑examining any of the Directors as to whether the others had voted in favour of the resolution when each of them gave evidence denying that the resolution was even before the meeting. If ASIC had asked the question no Director could have provided an answer that Mr Lewski or another Director in fact voted on it. While I have no difficulty with the approach of Redlich and Bongiorno JJA and Hansen AJA in Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335 at [27]-[29], upon which Senior Counsel relied, I do not accept that it requires the finding for which he contended.
[770]Ms Kelsey's submission cannot be accepted. This is for a number of reasons.
[771]First, I have read the transcript passages, referred to in Ms Kelsey's annexure, by which she submits, by way of examples, she cross-examined each of the Councillors 'Regarding knowledge of how others would vote including whether discussions occurred regarding votes, whether requests were made regarding votes etc'. While Cr Dalley was more extensively cross-examined than other Councillors, they all were cross-examined about whether they knew how the other Councillors were going to vote and if discussions about that issue occurred prior to the vote.
[772]Secondly, as the Vice President stated in paragraph [767] of the Primary Decision, Ms Kelsey's case was dependent upon the contention that Mayor Smith and the Councillors were politically affiliated with each other and that they were each aligned with each other in relation to her performance, probation processes and employment matters. Further, as the Vice President stated in paragraph [776] of the Primary Decision, Ms Kelsey contended the alignment between Mayor Smith and the Councillors was such that they voted en masse to terminate her employment for a proscribed reason.
[773]For the reasons given in paragraph [231], Ms Kelsey's pleaded case was that:
·Mayor Smith and the Councillors were politically affiliated with each other;
·the Councillors were aligned with each other and Mayor Smith in relation to her (Ms Kelsey's) performance, probation processes and employment matters;
·it could be inferred that Mayor Smith was in favour of the termination of Ms Kelsey's employment; and
·each of the Councillors voted to terminate her employment because she had made the Council Complaint and the CCC Referral in that they were politically aligned with Mayor Smith and they were aligned with each other and with Mayor Smith in relation to her performance, probation processes and employment matters.
[774]This was, as I understand her submissions to this Court, Ms Kelsey's '…case theory.'
[775]Ms Kelsey's written closing submissions before the Vice President included a submission that the Councillors gave false evidence in relation to the extent of alignment between them as well as in relation to the reasons for their decision to vote to terminate her employment.[691]
[691] Ms Kelsey's amended outline of closing submissions, para. 1.7, ARB, page 4552.
[776]Thirdly, for the reasons given in the last four paragraphs, differently to the circumstances in APCH, there was a forensic choice to be made by Ms Kelsey about cross-examining the Councillors as to whether they knew the other Councillors were motivated to vote to terminate Ms Kelsey's employment for a prohibited reason. The failure to challenge the Councillors about this led to the Vice President's conclusion that the Councillors' sworn evidence should be believed. On a plain reading of the paragraphs in the Primary Decision to which Ms Kelsey refers, it is clear that the Vice President was well aware of the approach referred to in Curwen and that his Honour had proper regard to it.
[777]Fourthly, in APCH, the issue about the limited utility of certain cross-examination was raised in the trial. Ms Kelsey did not point to where, before the Vice President, she made the submission she now makes on appeal, namely, the alleged limited utility of cross-examining the Councillors about whether they knew the other Councillors were going to vote for a prohibited reason because, in cross-examination, they denied any prior discussions about the vote.
[778]The Vice President did not exceed the approach in Curwen. Rather than putting '… the matter' out of his Honour's mind where a matter was not the subject of cross‑examination, the reasons given by the Vice President demonstrate that the matter directly figured in his Honour's assessment of the evidence before him. There was a forensic choice available to Ms Kelsey about whether she cross-examined the Councillors if they knew the others were motivated to vote for a prohibited reason. Ms Kelsey's submission to the Vice President was that the Councillors were deliberately lying about their sworn evidence and that, because of their alignment with each other and their alignment with Mayor Smith, they voted to dismiss her for a prohibited reason.
[779]The issue that faced the Vice President, and the course his Honour took, was based on orthodox and clear principles. Indeed, the course the Vice President took was similar to that recently undertaken by Snaden J in Jolly v Sharma[692] where his Honour stated:
184 True it is, of course, that Mr Sharma was on notice that Mr Jolly would invite the court to disbelieve his evidence, and to conclude (whether as a matter of inference or by reason of the statutory presumption in s 361(1) of the FW Act–or both) that his motivations for supporting the 9 August Resolutions included motivations that were proscribed by pt 3‑1 of the FW Act. There can be no suggestion that the court should reject Mr Jolly’s invitation by application of the rule in Browne v Dunn (1893) 6 R 67.
185 Nonetheless, the court should, I think, be slow to draw conclusions adverse to Mr Sharma – or, worse, conclusions that are consistent with the hypothesis that he deliberately gave false evidence–in circumstances where he was not given an opportunity in the witness box to say why they ought not to be drawn: see, in that regard, Curwen v Vanbreck Pty Ltd (2009) 26 VR 335, 349-350 [28]-[29] (Redlich and Bongiorno JJA and Hansen AJA).
186 For obvious reasons, it is unnecessary to make any more of that. I regard the evidence that Mr Sharma gave about why he did what he did in support of the 9 August Resolutions as truthful and forthright, and I accept it. He did not bring about the passage of those resolutions because, or for reasons that included that, Mr Jolly had exercised a workplace right.
187 Mr Jolly’s claim to relief under pt 3-1 of the FW Act must be rejected.
[692] [2024] FCA 171.
[780]In respect of the precise evidence raised in proposed ground of appeal 12, the Vice President's approach to assessing the case argued by Ms Kelsey and that evidence reveals no error of law.
[781]For these reasons, this proposed ground of appeal reveals no error of law.
[782]Proposed ground of appeal 12 is not made out.
[783]Ms Kelsey should not be allowed to amend her application to appeal on this ground.
PART NINE
Proposed grounds of appeal 13 (a) and 13 (b)
[784]These proposed grounds are that the Vice President:
13.Failed to have regard to relevant considerations that:
(a)the applicant had exercised a workplace right to make a complaint or inquiry in relation to her employment within the meaning of that phrase under s 284 of the IR Act (cf. paragraphs 314 and 744 of the reasons);
(b)the applicant had exercised a workplace right to participate in a process or proceeding within the meaning of s 284(1)(b) as defined in s 283 of the IR Act, being the filing of the first instance proceeding (cf. paragraph 314 of the reasons)
[785]As referred to earlier, as a consequence of the parties' agreed proposal and the Directions Orders, Ms Kelsey needed the leave of the Court to make oral submissions that went beyond the issues and contentions contained in her written outline of submissions.
[786]Ms Kelsey wanted to make oral submissions about these grounds despite the fact she did not refer to them in her principal or reply submissions. Ms Kelsey's contention is that the Vice President made an additional error by not considering whether the QIRC proceeding was a basis for the termination of her employment.
[787]The Councillors and the Council initially opposed such leave being granted to Ms Kelsey. The Councillors submitted that in order to properly address that contention, they needed to examine all of the arguments made before the Vice President to find out if they were squarely raised in Ms Kelsey's submissions.[693]
[693] T 2-43, ll 3-32.
[788]However, subsequently, the Councillors did make submissions about these proposed grounds. In those circumstances, leave should be given to Ms Kelsey to make submissions about these proposed grounds.
[789]Ms Kelsey submitted that:
·it was expressly pleaded that a prohibited reason for her dismissal was the fact that she commenced the QIRC proceedings on 1 December 2017;
·the Vice President, while his Honour appropriately considered whether her making '… the PID' motivated the Councillors to vote to terminate her employment, did not consider whether the Councillors were motivated to terminate her employment because she commenced the QIRC proceedings;
·in paragraph [172] of the Primary Decision, his Honour stated:
[172]On 1 December 2017, Ms Kelsey filed her Application commencing these proceedings. It is asserted that this impacted the Second to Ninth Respondents. It is clear from their comments, including those references to Ms Kelsey as litigious as set out above, that Councillors' views had been further changed by the commencement of litigation;
·from that paragraph, the Vice President made what looked like a finding about how the Councillors related to Ms Kelsey after she commenced the QIRC proceedings; and
·the difficulty is that '… we just don't know what his Honour meant by that or how it influenced his broader decision-making.'[694]
[694] T 2-40, l 38 to T 2-41, l 12.
[790]Ms Kelsey did concede that if the Court was against the other challenges she makes to the Primary Decision, namely, in respect of the challenges to the credibility and factual findings, these proposed grounds would not affect the result of her application to amend.[695]
[695] T 2-41, ll 12-15.
[791]The Councillors[696] submitted that in Ms Kelsey's final written submissions to the Vice President, she did submit that the proscribed reasons for her dismissal included the views of some of the Councillors about her being litigious and that she had commenced the litigation against the Council.[697]
[696] T 3-20.
[697] Ms Kelsey's amended outline of closing submissions, including at para. 4.134, ARB, page 4642 (submissions made about Cr Pidgeon) and at para. 4.337, ARB page 4673 (submissions made about Cr Dalley).
[792]The Councillors then submitted that in the Primary Decision:
·at paragraph [787], the Vice President dealt with the description of Ms Kelsey, by number of the Councillors, as litigious and held that it did not necessarily follow that '… they were motivated by a proscribed reason for terminating her employment';
·at paragraph [806], the Vice President decided;
[806]The fact that some of the Third to Ninth Respondents have been critical of Ms Kelsey's performance or demonstrated animosity towards her does not suggest that a conclusion can be reached that it was as a consequence of her lodging a PID or commencing the proceedings in the Commission. Likewise, to the extent to which some of the Respondents described the Applicant as litigious or were critical of her affidavits, does not mean they were motivated by a proscribed reason in terminating her employment.; and
·at paragraph [822], the Vice President expressly concluded that the Councillors did not extend Ms Kelsey's probationary period for a proscribed reason.[698]
[698] T 3-21, ll 8-12.
[793]The Councillors then submitted, in light of the above, there is no basis to conclude that the Vice President did not consider the commencement of the QIRC proceedings to be part of the case. The Councillors further submitted that the issue of the QIRC proceedings was a very minor part of the case, and the Vice President's findings clearly dealt with that issue.[699]
[699] T 3-21, ll 12-15.
[794]I accept the submissions made by the Councillors. It was definitely part of Ms Kelsey's case that a proscribed reason for the Councillors' voting to terminate her employment was because she had commenced the QIRC proceedings on 1 December 2017.
[795]However, the references to the Primary Decision set out by the Councillors that I have referred to above, indicate that the Vice President considered that discrete claim made by Ms Kelsey in his Honour's reasons. That is to say, Ms Kelsey's submission that paragraph [172] of the Primary Decision was ambiguous cannot be accepted.
[796]In any event, for all the reasons given by the Vice President, he accepted the evidence of the Councillors as to their reasons for voting to terminate Ms Kelsey's employment. None of those reasons included the reasons as alleged by Ms Kelsey. For the reasons I have given in this judgment, there is no error of law or of fact that vitiates those conclusions reached by the Vice President.
[797]For these reasons, these proposed grounds of appeal reveal no errors of law or fact.
[798]Proposed grounds of appeal 13 (a) and (b) are not made out.
[799]Ms Kelsey should not be allowed to amend her application to appeal on these grounds.
PART TEN
Conclusion
[800]The principal issue the Court had to determine was whether or not Ms Kelsey's application to amend her application to appeal should be granted.
[801]In determining whether or not to grant Ms Kelsey's application to amend, by the parties' agreed proposal which was adopted by the Court, the Court heard full argument about the specific grounds of appeal and about the categories of complaint proposed to be pursued by Ms Kelsey. For the reasons given:
·no errors of law are made out; and
·no errors of fact are made out.
[802]For these reasons, the Court will order that Ms Kelsey's application to amend, filed on 18 June 2021, be dismissed. Further, because of the parties' agreed proposal as adopted by the Court, the further consequence is that Ms Kelsey's application to appeal, filed on 21 April 2021, should also be dismissed.
[803]I will hear the parties as to the costs of Ms Kelsey's application to appeal as heard by me.
PART ELEVEN
Orders
[804]The Court makes the following orders:
1. The Appellant's Application in existing proceedings, filed on 18 June 2021, is dismissed.
2. The Appellant's Application to appeal, filed on 21 April 2021, is dismissed.
3. In relation to the issue of costs:
(a)the First Respondent is to file in the Industrial Registry and serve on the Appellant, written submissions on the costs of the proceeding before the Court as currently constituted ('the proceeding') (of no more than five (5) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages), by 4.00 pm on Monday, 26 August 2024;
(b)the Third to Ninth Respondents are to file in the Industrial Registry, and serve on the Appellant, written submissions on the costs of the proceeding (of no more than five (5) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages), by 4.00 pm on Monday, 26 August 2024;
(c)the Appellant is to file in the Industrial Registry, and serve on the First Respondent and on the Third to Ninth Respondents, written submissions on the costs of the proceeding (of no more than ten (10) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) ('the Appellant's costs submissions'), by 4.00 pm on Monday, 16 September 2024;
(d)the First Respondent is to file in the Industrial Registry, and serve on the Appellant, written submissions in reply to the Appellant's costs submissions (of no more than three (3) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 30 September 2024;
(e)the Third to Ninth Respondents are to file in the Industrial Registry, and serve on the Appellant, written submissions in reply to the Appellant's costs submissions (of no more than three (3) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 30 September 2024; and
(f)unless otherwise ordered, the decision on the costs of the proceeding be determined on the papers.
[213] It is well established, and the respondents did not dispute, that Parliament’s use of the phrase “any public interest” confers a wide discretionary value judgment function on a repository: O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216; Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 at [21] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 at [39] (French CJ, Crennan and Bell JJ); Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; 48 VR 129 at [313]-[317] (Tate JA). See also in the context of s 39(1)(e): Evans v State of Western Australia [1997] FCA 741; 77 FCR 193 at 215.
[214] The phrase is not, and is not intended to be, susceptible of precise definition, nor is it appropriate to set out lists of matters that might fall within its scope. The adjective “public” connotes an interest of a nature that is different from a private or individual interest. It asks a repository of a power conferred in these terms to look at interests common to or held amongst a wider community, but not necessarily across an entire community, or nation.
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