Kelsey v Logan City Council & Ors - [2021] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kelsey v Logan City Council & Ors [2021] ICQ 11

PARTIES:

SHARON RAE MARIE KELSEY

(appellant)

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

(ninth respondent)

FILE NO/S:

C/2021/8

PROCEEDING:

Appeal

DELIVERED ON:

21 July 2021

HEARING DATE:

Determined without oral hearing

MEMBER:

Davis J, President

ORDER:

1. The appellant pay the second respondent’s costs of the appeal, including reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COST FOLLOW EVENT – INDEMNITY COSTS – PARTICULAR CASES - HOPELESS CASES – UNREASONABLE CONDUCT – OR DELINQUENCY RELATING TO PROCEEDINGS – where the appellant was unsuccessful in proceedings against the respondents brought in the Queensland Industrial Relations Commission – where the appellant filed an appeal without articulating grounds – where the appellant then abandoned the appeal against the second respondent – where the second respondent then applied for costs of the appeal – where the Industrial Relations Act 2016 abrogates the general rule that costs follow the event – whether costs should be ordered in favour of the second respondent – whether costs should be awarded on an indemnity basis.

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – where the appellant brought proceedings against the respondents in the Queensland Industrial Relations Commission – where those proceedings were dismissed – where the appellant appealed and then discontinued the appeal against the second respondent – where the second respondent seeks costs on an indemnity basis – where the Industrial Relations Act 2016 abrogates the usual rule that costs follow the event – whether indemnity costs should be ordered – whether the principles established for awarding indemnity costs apply in the Industrial Court where costs do not follow the event

Fair Work Act 2009
Industrial Relations Act 2016, s 280, s 285, s 545, s 557, s 564
Industrial Relations (Tribunal) Rules 2011, r 70
Public Interest Disclosure Act 2010, s 48
Uniform Civil Procedure Rules 1999, Sch 1

CASES:

Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd (2020) 384 ALR 340, followed
Calderbank v Calderbank [1976] Fam Law 93, cited
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Di Carlo v Dubois [2002] QCA 225, followed
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, cited
Kanan v Australian Postal and Telecommunications Union [1992] FCA 539, followed
Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114, related
Maher v Isaac Regional Council

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ICQ 11
Decision Date: 21 July 2021

CaseChat Overview and Summary

The case of Kelsey v Logan City Council & Ors involves Ms Kelsey, who was the Chief Executive Officer of the Logan City Council, and Mr Smith, who was the Mayor of Logan City. The dispute arose from Ms Kelsey's allegations of misconduct against Mr Smith, which she raised in a public interest disclosure. Ms Kelsey commenced proceedings in the Queensland Industrial Relations Commission (QIRC) against the Council and other respondents, alleging contraventions of workplace rights and public interest disclosure laws. The QIRC dismissed Ms Kelsey's claims, and she appealed the decision to the Industrial Court. The second respondent, Mr Smith, applied for costs of the appeal on the standard basis.

The central legal issues in this case were whether Mr Smith was entitled to costs of the appeal and, if so, whether those costs should be awarded on an indemnity basis. The Industrial Relations Act 2016 (IR Act) abrogated the general rule that costs follow the event, meaning that costs are not automatically awarded to the prevailing party in all cases. Instead, the court had to consider whether the principles established for awarding indemnity costs applied in the Industrial Court. Indemnity costs are awarded in cases of unreasonable conduct or delinquency relating to the proceedings.

The court considered the principles established in previous cases for awarding indemnity costs, which include the need for the conduct to be unreasonable or delinquint, and the need for a substantial reason for the award. The court held that Mr Smith was entitled to costs of the appeal, but these should be awarded on the standard basis. The court found that Ms Kelsey's conduct in pursuing the appeal was not unreasonable or delinquint to the extent that indemnity costs were warranted. The court concluded that the principles for awarding indemnity costs did not apply in this case, and that the standard basis of costs was appropriate.

The final orders of the court were that Ms Kelsey, the appellant, pay the second respondent's costs of the appeal, including reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.

Orders

Orders of the court

1. The appellant pay the second respondent’s costs of the appeal, including reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.

Background

Background to the litigation

Two issues arise:1.whether Mr Smith should have the benefit of an order that Ms Kelsey pay his costs of the appeal; if so2.whether the costs should be assessed on an indemnity basis.Background Ms Kelsey was employed on 2 June 2017 as the Chief Executive Officer of the Logan City Council (the Council) which is the first respondent to the appeal. Her employment was subject to a six month probationary period. Mr Smith was, at relevant times, the Mayor of Logan City. The third to ninth respondents to the appeal were, at relevant times, councillors of the Council. On 10 October 2017, a performance review meeting was held with Ms Kelsey. Present were Councillors Dalley and Schwarz (respectively the third and eighth respondents to the appeal) and Mayor Smith. Concerns were expressed to Ms Kelsey about her performance. Two days later, Ms Kelsey made a public interest disclosure to the Council, the Minister for Local Government and the Crime and Corruption Commission. That disclosure alleged possible misconduct by Mayor Smith. On 1 December 2017, Ms Kelsey commenced proceedings in the QIRC alleging contraventions of s 285 of the Industrial Relations Act 2016 (the IR Act) and s 48 of the Public Interest Disclosure Act 2010 (the PID Act). Section 285 of the IR Act protects a person against adverse action taken by the employer[2] to prevent a person from exercising a workplace right. Section 48 of the PID Act, relevantly here, gives a right to a person who has made a public interest disclosure to seek remedies against any person who attempts to damage the first person because the public interest disclosure was made.[2]Section 280(a). On 7 February 2018, the Council terminated Ms Kelsey’s employment. Ms Kelsey’s application to the QIRC was heard by Vice President O’Connor over a total of 23 days between 17 December 2018 and 10 June 2020. On 1 April 2021, his Honour dismissed the claim and invited submissions on other orders, including costs. It is unnecessary to analyse the judgment of the Vice President. It is sufficient to observe that the allegations levelled by Ms Kelsey against Mr Smith were serious. By s 557 of the IR Act, Ms Kelsey had a right to appeal to the Court from the decision of the QIRC on the ground of “error of law”[3] or “excess or want of jurisdiction”,[4] or she could appeal by leave of the Court on any other ground.[5] By s 564 of the IR Act, any appeal was required to be commenced within 21 days of the order appealed. [3]Section 557(1)(a).[4]Section 557(1)(b).[5]Section 557(2). Notwithstanding some comments in the application to appeal filed by Ms Kelsey,[6] it is common ground that the appeal period ran from the time Vice President O’Connor dismissed the application, even though questions of costs and perhaps other final orders, remained to be determined.[7][6]See the assertion in paragraphs 4 and 5 of the application that final orders had, at that point, not been made.[7]Seemingly conceded in paragraphs 4 and 5 “Grounds of Appeal” of the application and Transcript 14 May 2021 T 1-3.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kelsey v Logan City Council & Ors [2021] ICQ 11
PARTIES:	SHARON RAE MARIE KELSEY (appellant) v LOGAN CITY COUNCIL (first respondent) TIMOTHY LUKE SMITH (second respondent) CHERIE MARIE DALLEY (third respondent) RUSSELL BRUCE LUTTON (fourth respondent) STEPHEN FREDERICK SWENSON (fifth respondent) LAURENCE WILLIAM SMITH (sixth respondent) PHILIP WAYNE PIDGEON (seventh respondent) TREVINA DALE SCHWARZ (eighth respondent) JENNIFER RACHEL JULIE BREENE (ninth respondent)
FILE NO/S:	C/2021/8
PROCEEDING:	Appeal
DELIVERED ON:	21 July 2021
HEARING DATE:	Determined without oral hearing
MEMBER:	Davis J, President
ORDER:	1. The appellant pay the second respondent’s costs of the appeal, including reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.
CATCHWORDS:	PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COST FOLLOW EVENT – INDEMNITY COSTS – PARTICULAR CASES - HOPELESS CASES – UNREASONABLE CONDUCT – OR DELINQUENCY RELATING TO PROCEEDINGS – where the appellant was unsuccessful in proceedings against the respondents brought in the Queensland Industrial Relations Commission – where the appellant filed an appeal without articulating grounds – where the appellant then abandoned the appeal against the second respondent – where the second respondent then applied for costs of the appeal – where the Industrial Relations Act 2016 abrogates the general rule that costs follow the event – whether costs should be ordered in favour of the second respondent – whether costs should be awarded on an indemnity basis. INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – where the appellant brought proceedings against the respondents in the Queensland Industrial Relations Commission – where those proceedings were dismissed – where the appellant appealed and then discontinued the appeal against the second respondent – where the second respondent seeks costs on an indemnity basis – where the Industrial Relations Act 2016 abrogates the usual rule that costs follow the event – whether indemnity costs should be ordered – whether the principles established for awarding indemnity costs apply in the Industrial Court where costs do not follow the event Fair Work Act 2009 Industrial Relations Act 2016, s 280, s 285, s 545, s 557, s 564 Industrial Relations (Tribunal) Rules 2011, r 70 Public Interest Disclosure Act 2010, s 48 Uniform Civil Procedure Rules 1999, Sch 1
CASES:	Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd (2020) 384 ALR 340, followed Calderbank v Calderbank [1976] Fam Law 93, cited Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited Di Carlo v Dubois [2002] QCA 225, followed Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, cited Kanan v Australian Postal and Telecommunications Union [1992] FCA 539, followed Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114, related Maher v Isaac Regional Council