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Kelsey v Logan City Council (No 2) ICQ 13
INDUSTRIAL COURT OF QUEENSLAND
Kelsey v Logan City Council & Ors (No 2)  ICQ 013
SHARON RAE MARIE KELSEY
LOGAN CITY COUNCIL
TIMOTHY LUKE SMITH
CHERIE MARIE DALLEY
RUSSELL BRUCE LUTTON
STEPHEN FREDERICK SWENSON
LAURENCE WILLIAM SMITH
PHILIP WAYNE PIDGEON
TREVINA DALE SCHWARZ
JENNIFER RACHEL JULIE BREENE
6 May 2022
25 August 2021
Davis J, President
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT – where the appellant filed an application to appeal – where the application was filed within the time limited by the Industrial Relations Act 2016 (IR Act) – where the application to appeal contained no grounds – where it stated that the appellant was considering whether she had grounds – where application was made to amend the application to appeal to add grounds – whether the application to appeal was in law an application to appeal – whether the application was a nullity – whether the appellant should apply to appeal out of time – whether the appellant’s conduct was a relevant consideration on the application to amend
APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the appellant filed an application to appeal which did not comply with the requirements of the IR Act – where the appellant made application to amend the application to appeal – where the prospects of success of appeal were relevant to that application – where errors of law and factual errors were allegedly identified – where alleged legal errors became irrelevant if factual errors were not made out – where leave was required to argue factual error – whether the appellant had prospects of success
Crime and Corruption Act 2001
Industrial Relations Act 2016, s 282, s 284, s 285, s 314, s 429, s 451, s 464, s 539, s 545, s 557, s 564, s 565, s 571, s 572, s 573
Industrial Relations (Tribunals) Rules 2011, r 8, r 139, r 140, r 226
Local Government Act 2009, s 13
Public Interest Disclosure Act 2010, s 3, s 13, s 17, s 40, s 48, s 49, s 51, s 52
Abalos v Australian Postal Commission (1990) 171 CLR 167, followed
A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial
Relations)  ICQ 16, cited
AK v Western Australia (2008) 232 CLR 438, cited
Aon Risk Services Australia Ltd v Australian National
University (2009) 239 CLR 175, followed
Australian Building and Construction Commissioner v
Parker (2017) 266 IR 340, cited
Board of Bendigo Regional Institute of Technical and Further
Education v Barclay (2012) 248 CLR 500, cited
Browne v Dunn (1893) 6 R 67 HL, cited
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842, followed
CFMEU v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, followed
Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 61 IR 455, followed
Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335, cited
DL v The Queen (2018) 266 CLR 1, followed
Fox v Percy (2003) 214 CLR 118, followed
Gallo v Dawson (1990) 93 ALR 479, cited
Gambaro v Workers’ Compensation Regulator  ICQ 5, cited
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, followed
Greer v Greer  QCA 143, followed
Kelsey v Logan City Council & Anor  QIRC 009, related
Kelsey v Logan City Council & Ors (No 8)  QIRC 114, related
Lee v Lee (2019) 266 CLR 129, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259, followed
MNSBJ Pty Ltd v Downing  QCA 141, cited
Plaintiff M64/2015 v Minister for Immigration and Border
Protection (2015) 258 CLR 173, cited
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, followed
Rich v Chubb Protection Services (2001) 167 QGIG 159, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed
TRG v Board of Trustees of the Brisbane Grammar School
(2020) 5 QR 440, cited
Wainohu v New South Wales (2011) 243 CLR 181, cited Warren v Coombes (1979) 142 CLR 531, cited
CJ Murdoch QC for the appellant
A Herbert for the first respondent
The appeal has been discontinued against the second respondent
W Friend QC with C Massy for the third to ninth respondents
Minter Ellison Lawyers for the appellant
King & Company Solicitors for the first respondent The appeal has been discontinued against the second respondent
McInnes Wilson Lawyers for the third to ninth respondents
- Sharon Kelsey was the subject of an adverse judgment delivered by Vice President O'Connor sitting in the Queensland Industrial Relations Commission (QIRC) on 1 April 2021 after a trial which occupied 23 sitting days.
- Within the time prescribed for lodging an appeal, Ms Kelsey filed a document purporting to be an application to appeal the Vice President’s decision pursuant to the Industrial Relations (Tribunals) Rules 2011 (the Rules). It is common ground that the application to appeal which was filed is non-compliant with the Rules. No grounds of appeal appeared in the document at all. Ms Kelsey now seeks to amend the application to appeal by adding grounds and making other consequential amendments.
- Originally there were nine respondents to the appeal. Ms Kelsey has abandoned her appeal against the second respondent but seeks to proceed against each of the first and third to ninth respondents on the basis of her proposed new grounds.
- The respondents all oppose the application.
- The case arises from events in late 2017 and early 2018 in the Logan City Council (the Council) which is the first respondent.
- On 2 June 2017, Ms Kelsey was appointed the Chief Executive Officer of the Council on a contract of employment containing a six month probation period. The second respondent, against whom the appeal has now been discontinued (Mayor Smith), was the Mayor of the Council. Each of the third to ninth respondents were councillors. They were not the only councillors serving on the Council at that point.
- A performance review was held in relation to Ms Kelsey on 10 October 2017. Representing the Council in that meeting were the third respondent (Cr Dalley) and the eight respondent (Cr Schwarz). They expressed some concerns about Ms Kelsey’s performance as CEO of the Council.
- Two days after that meeting, Ms Kelsey made a Public Interest Disclosure (PID) alleging misconduct by Mayor Smith. That PID was made to the Council, the Minister for Local Government, and the Crime and Corruption Commission.
- The Public Interest Disclosure Act 2010 (PID Act) is designed to encourage disclosure of wrongdoing in the public sector and to protect those who disclose. It is “whistleblower” legislation.
- Sections 13 and 17 of the PID Act authorises a public officer to make a PID. That action is then protected by s 40, which provides:
“40 Reprisal and grounds for reprisal
- (1)A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—
- the other person or someone else has made, or intends to make, a public interest disclosure; or
- the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.
- (2)An attempt to cause detriment includes an attempt to induce a person to cause detriment.
- (3)A contravention of subsection (1) is a reprisal or the taking of a reprisal.
- (4)A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
- (5)For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.”
- On 7 February 2018, the Council met, although Mayor Smith had been enjoined against voting on any motion concerning Ms Kelsey’s employment. The third to ninth respondents voted in favour of terminating Ms Kelsey’s employment. Those votes carried a motion to dismiss her, although other councillors did not support that motion.
- Ms Kelsey filed an application in the Queensland Industrial Relations Commission (QIRC) which, in its amended form, sought final relief as:
“2. An order pursuant to section 51 of the PID Act and section 314 of the IR Act that the Second to Ninth Respondents take no part in any resolution by the First Respondent in respect of the Applicant’s employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent until the completion of the contract term on 25 June 2021 with the Second to Ninth Respondents having leave to apply to vary the order on reasonable grounds.
- An order pursuant to section 314 of the IR Act that the First to Ninth Respondents pay damages caused by the First to Ninth Respondents to the Applicant.
- Declarations pursuant to section 451(2)(c), 464 and 572 of the IR Act that:
- (a)the First Respondent has contravened section 285 of the IR Act.
- (b)the Second to Ninth Respondents are taken to have contravened section 285 of the IR Act as a result of section 571 of the IR Act.
- 5.Orders pursuant to section 572 and 574 of the IR Act for the First to Ninth Respondents to pay the penalties referred to in Column 4, Schedule 3 of the IR Act in respect of the corresponding contraventions and that those penalties be paid to the Applicant.
- 5.1An order pursuant to section 314(l)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated.
- 5.2An interim order pursuant to section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated or alternatively that the First Respondent recommence paying the Applicant’s normal salary (including backpay to the date of her dismissal) until the hearing and determination of this proceeding.
- 5.3An order pursuant to section 314(l)(c) of the IR Act and sections 51 and 52 of the PID Act that the First to Ninth Respondents pay the Applicant remuneration (including base salary, superannuation and vehicle package) lost as a result of her termination on 7 February 2018.
- 5.4An order pursuant to section 314(1)(e) of the IR Act and sections 51 and 52 of the PID Act to maintain the Applicant’s continuous service with the First Respondent.
- 5.5An order pursuant to section 545 of the IR Act that the First to Ninth Respondents pay the costs of the Applicant.”
- It can be seen that the application seeks relief under the Industrial Relations Act 2016 (IR Act) as well as the PID Act.
- Section 285 of the IR Act protects persons against “adverse action”. That section provides:
- (1)A person must not take adverse action against another person—
- because the other person—
- (i)has a workplace right; or
- (ii)has, or has not, exercised a workplace right; or
- (iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
- to prevent the exercise of a workplace right by the other person.
- because the other person—
This subsection is a civil penalty provision.
- (2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.
This subsection is a civil penalty provision.”
- Section 285 concerns the concepts of “adverse action” and “workplace right(s)’. Sections 282 and 284 define these terms:
“282 Meaning of adverse action
- (1)Adverse action is taken by an employer against an employee if the employer—
- (a)dismisses the employee; or
- (b)injures the employee in his or her employment; or
- (c)alters the position of the employee to the employee’s prejudice; or
- (d)discriminates between the employee and other employees of the employer.
- (2)Adverse action is taken by a prospective employer against a prospective employee if the prospective employer—
- (a)refuses to employ the prospective employee; or
- (b)discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
- (3)Adverse action is taken by an employee against an employer if the employee—
- (a)ceases work in the service of the employer; or
- (b)takes industrial action against the employer.
- (4)Adverse action is taken by an industrial association, or an officer or member of an industrial association, against a person if the association, or the officer or member of the association—
- (a)organises or takes industrial action against the person; or
- (b)takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
- (c)if the person is a member of the association— imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to an amount legally owed to the association by the member).
- (5)Adverse action includes—
- (a)threatening to take action covered by subsections (1) to (4); and
- (b)organising to take action covered by subsections (1) to (4).
- (6)Adverse action does not include action that is authorised under—
- (a)this Act or any other law of the State; or
- (b)a law of the Commonwealth.
- (7)Without limiting subsection (6), adverse action does not include an employer standing down an employee who is engaged in protected industrial action and employed under a contract of employment that provides for the employer to stand down the employee in the circumstances. …
“284 Meaning of workplace right
- (1)A person has a workplace right if the person—
- (a)has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
- (b)is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
- (c)is able to make a complaint or inquiry—
- (i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
- (ii)if the person is an employee—in relation to his or her employment.
- (2)In this section— industrial body means—
(a) the commission; or
(b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.”
- The term “industrial law” as used in s 284 is defined as:
“industrial law means—
- (a)this Act; or
- (b)another Act regulating the relationships between employers and employees.”
- Ms Kelsey alleged that workplace rights arose from provisions in various Acts:
- the PID Act;
- the Local Government Act 2009 (the LG Act);
- the Crime and Corruption Act 2001 (the CC Act).
- The Vice President held that neither the PID Act nor the CC Act is an “industrial law”, but s 13 of the LG Act is. It provides:
“13 Responsibilities of local government employees
- (1)All employees of a local government have the same responsibilities, but the chief executive officer has some extra responsibilities.
- (2)All employees have the following responsibilities—
- (a)implementing the policies and priorities of the local government in a way that promotes—
- (i)the effective, efficient and economical management of public resources; and
- (ii)excellence in service delivery; and
- (iii)continual improvement;
- (b)carrying out their duties in a way that ensures the local government—
- (i)discharges its responsibilities under this Act; and
- (ii)complies with all laws that apply to local governments; and
- (iii)achieves its corporate plan;
- (c)providing sound and impartial advice to the local government;
- (d)carrying out their duties impartially and with integrity;
- (e)ensuring the employee’s personal conduct does not reflect adversely on the reputation of the local government;
- (f)improving all aspects of the employee's work performance;
- (g)observing all laws relating to their employment;
- (h)observing the ethics principles under the Public Sector Ethics Act 1994, section 4;
- (i)complying with a code of conduct under the Public Sector Ethics Act 1994. …”
- Various provisions other than those referred to above are referenced in the amended application. They are:
- Section 51 of the PID Act which prescribes the grounds upon which an injunction may be sought under ss 48 and 49.
- Section 52 of the PID Act which empowers the QIRC and the Supreme Court to make orders in the nature of mandatory injunctions to remedy any detriment caused by the prohibited conduct.
- Section 314 of the IR Act which gives various powers to the QIRC when conducting an arbitration of a dispute.
- Section 451 of the IR Act which defines the general powers of the QIRC.
- Section 463 of the IR Act which authorises the QIRC to make declarations and s 464 which identifies those parties who may apply for a declaration.
- Section 545 of the IR Act which authorises and regulates costs orders.
- Sections 571, 572 and 574 of the IR Act which regulate applications for pecuniary penalty orders.
- As earlier observed, that application was dismissed by the Vice President on 1 April 2021.
- On 21 April 2021, within the period prescribed for appeal, Ms Kelsey filed a document purporting to be an application to appeal the decision of the Vice President. In part 4 of the proforma application to appeal entitled “Details of decision sought”, this appears:
“Final orders have not yet been made in relation to the matter. However there has been a Decision which appears to commence the relevant appeal period. This appeal is filed to preserve my ability to appeal the Decision when final orders are made and when I have had an opportunity to take advice (if my means allow) in relation to appropriate grounds of appeal. I have not had the opportunity to consider or take advice on appeal prospects or on available grounds of appeal. If an appeal is pursued, I will file an amended notice of appeal which sets out the grounds of appeal in accordance with the usual requirements. In the meantime I respectfully ask that the Court does not progress this Appeal until after final orders are made and I am in a position to advise the Court as to whether I wish to proceed with the appeal and have filed an amended application to appeal in compliance with the normal requirements.”
- The reference to “final orders” not having been made can only refer to questions of costs and perhaps ancillary orders. There is no doubt that the Vice President made a final order in the terms of dismissing Ms Kelsey’s claim, and time to appeal began to run. The Vice President’s orders were:
“1. The Application against the First to Ninth Respondents is dismissed.
2. I will hear the parties on the orders to be made.”
- There is no doubt that time to appeal the dismissal of the application began to run against Ms Kelsey on 1 April 2021.
- In part 5 of the document entitled “Grounds of the appeal”, this appears:
“Final orders have not yet been made in relation to the matter. However there has been a Decision which appears to commence the relevant appeal period.
This appeal is filed to preserve my ability to appeal the Decision when final orders are made and when I have had an opportunity to take advice (if my means allow) in relation to appropriate grounds of appeal. I have not had the opportunity to consider or take advice on appeal prospects or on available grounds of appeal.
If an appeal is pursued, I will file an amended notice of appeal which sets out the grounds of appeal in accordance with the usual requirements.
In the meantime I respectfully ask that the Court does not progress this Appeal until after final orders are made and I am in a position to advise the Court as to whether I wish to proceed with the appeal and have filed an amended application to appeal in compliance with the normal requirements.”
- On 18 June 2021, an application was filed by Ms Kelsey seeking:
“1. The Applicant’s Form 5 - Application to appeal filed 21 April 2021 be substituted with the Form 5 - Application to appeal filed with this Form 4 - Application in existing proceedings.
- That the appeal be dismissed as against the second respondent.
- Such further or other orders or directions the Court deems appropriate.”
- That is the application presently before me. The grounds of appeal now sought to be raised are many and varied. The document articulating those grounds is attached to these reasons as “Schedule 1”.
Relevant provisions governing appeals
- Section 557 of the IR Act provides for both an appeal as of right and an appeal by leave from the QIRC to this Court. It provides, relevantly:
“557 Appeal from commission
- (1)The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (2)Also, the Minister or another 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—
(a) error of law; or
(b) excess, or want, of jurisdiction. …
(4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2). …”
- Section 565 limits the circumstances in which leave to appeal may be given under s 557(2). Section 565 provides:
“565 When leave for appeal must be given
If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—
- (a)must give leave if it is satisfied it is in the public interest to do so; and
- (b)may not give leave other than under paragraph (a).”
- an appeal on a ground of error of law or excess or want of jurisdiction may be made as of right;
- an appeal on any other ground is only by leave where public interest is demonstrated.
- Section 564 of the IR Act prescribes the time limited for an appeal. It also provides that, by order, an application to appeal may be filed beyond the prescribed time limit. Section 564 is, relevantly here, in these terms:
“564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or …”
- The reference in s 564 to the “rules” is a reference to the Industrial Relations (Tribunals) Rules 2011 to which I have already referred. Rules 8, 139 and 140 relevantly provide:
“8 Starting proceedings
(1) A proceeding must be started by an application in the approved form. …
(3) For these rules, each of the following is a document starting a proceeding—
- (a)an application to appeal;
- (b)a notice of appeal under an appeal Act;
- (c)a complaint referral. …”
“139 Application to appeal—Act, s 557 or 562
- (1)This rule applies to an application to appeal—
- (a)to the court under section 557 of the Act from a decision of the commission; or ...
- (2)The application to appeal must be filed and state the following—
- (a)the name and last known address of each respondent or other party;
- (b)whether the appeal is from all or part (and which part) of the decision appealed from;
- (c)concise grounds of the appeal;
- (d)the decision the appellant wants instead of the decision appealed from; …” (emphasis added)
“140 Application for leave to appeal—Act, s 557 or 560
- (1)An application for leave to appeal must state the following—
- (a)the name and last known address of each respondent or other party;
- (b)the grounds of the appeal;
- (c)the facts and circumstances relied on to argue that an appeal should be brought in the public interest.
- As to the jurisdiction to make the orders sought on the present application regularising her appeal, Ms Kelsey relies upon s 539 of the IR Act and r 226(2)(f) of the Rules. Section 539 and r 226, relevantly, provide:
“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; and
- (e)correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and …
- (j)extend a prescribed or stated time, before or after expiry of the time; and
- (k)waive compliance with the rules.” (emphasis added)
“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-
- (a)set aside all or part of the proceeding; or
- (b)set aside a step taken or order made in the proceeding; or
- (c)declare a document or step taken to be ineffectual; or
- (d)declare a document or step taken to be effectual; or
- (e)make another order that could be made under these rules; or
- (f)make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.” (emphasis added)
Is the application to appeal an appeal?
- Ms Kelsey assumes that the document filed by her on 21 April 2021 is an application to appeal which is capable of amendment. Although the order sought is substitution of the existing Form 5 with the new draft, that is sought to be achieved by amendment under s 539 of the IR Act or r 226 of the Rules. There is no application under s 564(2) to file an appeal (the New Form 5) out of time.
- All respondents submit that the application that was filed on 21 April 2021 is not an appeal. It is, they submit, nothing more than notice of an intention to appeal … perhaps.
- The application to appeal filed on 21 April 2021 provides the name and addresses of the respondents. An inference can be drawn that the decision subject to challenge was the Vice President’s disposal of the application as that was, at that point, the only decision which had been made. There is nothing to indicate whether all the relief sought in the application is still all sought on appeal or whether, given the findings, some are abandoned. Obviously, relief against Mayor Smith is no longer sought. There are no grounds stated upon which the appeal is mounted. Further, the document also suggests that there may be no appeal at all, depending upon further investigations.
- Ms Kelsey complied with the formal requirements of the Rules. She used the right form, and she stated the names and addresses of the respondents. She complied with none of the substantive requirements of the Rules. Ms Kelsey made no attempt to comply.
- Even if the application to appeal is a nullity, there is still jurisdiction to achieve the aims of Ms Kelsey on the application. As earlier observed, s 564(2) authorises the court to order that an appeal be filed out of time. There is no doubt that an appeal alleging the grounds now alleged would be a competent appeal, even if the grounds had no reasonable prospect of success.
- The question of whether the application is in law one to amend an appeal filed within time, or one to file an appeal beyond time, is said to be significant because the discretionary factors which have been identified in various authorities in relation to those two types of applications are different.
- Ms Kelsey points to cases where, on an application to amend a notice of appeal, the significant consideration was whether an arguable ground of appeal was identified in the proposed amendments. In those cases, it was observed that generally an appellant ought not be denied an opportunity to run an arguable appeal.
- The respondents point to cases which concern appeals commenced out of time in which observations are made that on an application of that type:
- the time limit must be respected;
- the onus is upon the appellant to show that it is in the interests of justice to allow the application;
- explanation of delay is significant.
- In my view, the application to appeal is capable of amendment. The powers of amendment are very wide. Section 539 of the IR Act empowers the Court to “correct, amend or waive” any “error, defect or irregularity” whether “substantive or formal”. However, the fact that the present application is one for amendment does not mean that Ms Kelsey’s conduct in not attempting to file a complying application to appeal within time is irrelevant.
- In s 564(2) of the IR Act and r 226 of the Rules, the discretion is not fettered by any express legislatively prescribed limitations except that any order must be “fair and just”. Any limitations to the judicial discretion are inherent as the exercise of power is limited to achieving the functions for which the judicial power has been bestowed.
- As observed by Kirby and Callinan JJ in Gerlach v Clifton Bricks Pty Ltd:
“All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone. Laws made by the Federal and State Parliaments are always capable of measurement against the Constitution. Officers of the Commonwealth are always answerable to this Court, in accordance with the constitutional standard. Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or ‘guidelines’ or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose.”
- The term “fair and just” must compel the taking into account of the interest of all parties. The legislative intention is that all interests must be balanced in exercise of judgment to determine whether it is “fair and just” to allow the amendment.
- Where a party has filed a document purporting to be an application to appeal but makes no attempt to stipulate any grounds, or even committing to pursuing an appeal, the explanation for such behaviour is, in my view, a relevant consideration on an application such as the present.
Explanation for the application to appeal not complying with the rules
- Ms Kelsey relies on two affidavits in support of her application: one of herself and one of Daniel Williams, a solicitor and partner of Minter Ellison, the solicitors who represented her in the QIRC and act for her now. Neither of those deponents were required for cross-examination.
- In her affidavit, Ms Kelsey explained her financial position. She swore that after her employment was terminated by the Council, she was unable to obtain another position until March 2020. At that point, she obtained employment in Melbourne. In the meantime though, she exhausted her available resources. Real property that she owns secures debts not only to financial institutions, but also to her lawyers.
- Her position in Melbourne expired in January 2021. She continued with that employer until 16 April, although in a lesser role. Her employment in that role was extended until 30 June 2021. As at the date of swearing her affidavit, she had no employment beyond 1 July. She says that she is in the process of selling her real property to pay the debts.
- In her affidavit, she specifically addressed the funding of the appeal. She said this:
“20. At the time the decision in PID/2017/3 was made on 1 April 2021 my arrangements for fees with MinterEllison did not include assistance in advising with respect to grounds for any appeal process .
- Given my financial situation, I was not able to engage other advisers, particularly having regard to the complex and lengthy nature of the proceeding. and the judgment that was handed down.
- While I am legally qualified, I specialised in occupational health and safety. I have not practiced as a solicitor in Queensland, nor in the area of industrial relations or general employment matters, and did not believe that I was capable of sensibly particularising grounds of appeal within the 21 day limitation period. However, I was aware that Dan Williams, my lawyer in the proceeding below, was taking steps to obtain permission from Minter Ellison’s governing body to provide me with assistance to regularise the appeal and so believed that I could be in a position to do so within a reasonable time.” (emphasis added)
- Mr Williams, in his affidavit, swore:
“4. Ms Kelsey has substantial fees and outlays that remain unpaid, which was accommodated within our retainer in the proceeding below, but it was a relevant consideration in relation to any extension of the retainer.
- Any extension of the retainer was a matter required to be considered and determined by the Firm’s Executive Leadership Team (ELT).
- No decision to accept any further retainer had been made by the time limited for appeal (within the 21 day appeal period following the decision on 1 April 2021).
- A decision was made on or about 31 May 2021 to accept a retainer to assist Ms Kelsey to regularise her appeal.
- Work has proceeded diligently since that date. In preparing draft ground of appeal, the MinterEllison solicitor with principal carriage of drafting those grounds, Pawel Zielinski, has also been drafting submissions in support of the regularisation application, which submissions are not (on the current timeframe) due to be filed until 9 July 2021, but which are substantially complete.
- However, before filing the application to regularise the notice of appeal, and the draft grounds appeal, I determined that it was appropriate to brief Counsel to settle the amended notice of appeal. Chris Murdoch QC was the obvious choice to do so, having acted for Ms Kelsey in the proceeding below. Mr Murdoch was engaged by MinterEllison on 7 June 2021. However, until yesterday, he has been unavailable to substantially progress his review of the grounds of appeal as a consequence of other commitments.” (emphasis added)
- Ms Kelsey must have known, when the Vice President reserved his decision on the application on 10 June 2020, that there was a possibility that she would be unsuccessful and that there may be need for her to explore any possible avenues of appeal. There is no evidence that any step was taken by Ms Kelsey between 10 June 2020 and 1 April 2021 to make any arrangements for legal representation in the event of an appeal being considered.
- Mr Williams is very clear about the present limited commitment of MinterEllison to Ms Kelsey’s cause. That commitment is limited to assisting Ms Kelsey “to regularise her appeal”. In other words, there is no present commitment to represent her past the current application.
- Ms Kelsey recognises this. She also says that she did not have the legal skills and experience to draw the grounds of appeal herself. I draw the inference that she does not have the skills or experience to represent herself in the preparation and hearing of any appeal from the Vice President’s judgment. She does not have funds to retain any firm other than MinterEllison.
- The only rational inference is that if Ms Kelsey is successful in the present application, the appeal will only proceed if MinterEllison’s Executive Leadership Team agrees to support her. There is no evidence as to the likelihood or otherwise of that occurring.
- Ms Kelsey, who is a lawyer:
- knew there is a statutory time limit within which to appeal;
- knew that within that time frame she must file an application to appeal;
- knew that the application to appeal must contain matters of substance including an articulation of the grounds of appeal;
- made no attempt to fulfil any of the substantive requirements of the Rules as to the content of the application to appeal;
- did not even commit, in the application to appeal document, to pursuing the appeal.
- Ms Kelsey paid no respect to the Rules and no respect to the rights of the respondents. She sought to unilaterally extend the time she had to file an application for leave to appeal by filing a non-compliant document.
- Ms Kelsey’s explanation for filing a non-compliant application to appeal is completely unsatisfactory.
- Further, Ms Kelsey brings the present application with no apparent means to prosecute the appeal should she be successful and obtain leave to amend her completely deficient application to appeal.
- The respondents have a right to finality. That is the policy behind time limits such as that in s 564(3) of the IR Act. The legitimate interests of the respondents have been completely disregarded by Ms Kelsey. She firstly puts the respondents “on hold” by filing a non-compliant application and informing the respondents that she is considering whether to pursue an appeal. They are put “on hold” again when she files the present application supported by material which still contains no firm commitment to proceed with the application and where the only rational inference is that if the appeal is regularised, the respondents’ interests will then be at the whim of MinterEllison’s Executive Leadership Team who will then determine whether to support Ms Kelsey. Only at that time will the respondents know whether they are facing an appeal.
- Ms Kelsey’s disregard for the processes of the Court and the legitimate interests of the respondents is egregious.
Prospects on appeal
- Ms Kelsey seeks to appeal as of right on errors of law and by leave on what she says are factual errors.
- There are 28 paragraphs which constitute the proposed grounds of appeal. Paragraph 28 seeks to identify public interest grounds in support of the application for leave under s 557(2) to rely on alleged errors of fact.
- Paragraphs 1-12 allege errors of law. There are five errors alleged:
- Failure to have regard to the reasonableness, fairness or justification of the reasons given by the respondents for voting to terminate Ms Kelsey’s employment.
- An error in finding that assessorial liability of the third to ninth respondents for the adverse action of the Council was dependent upon the third to ninth respondents knowing how each other intended to vote on the motion that was carried to terminate Ms Kelsey’s employment.
- Inadequacy of reasons.
- Error in finding that the PID Act was not an “industrial law” for the purposes of the definition of “workplace right” in s 284 of the IR Act.
- Error in the application of the rule in Browne v Dunn.
- In addition to the alleged errors of law, Ms Kelsey alleges “errors of mixed fact and law”.
- The bases upon which leave is sought to grant the appeal on matters other than errors of law or jurisdiction are:
“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.”
- The fact that Ms Kelsey’s claim was brought under the PID Act, cannot, of itself, be a basis for granting leave. Parliament chose the QIRC as the tribunal to hear PID complaints and appeals from the QIRC to the Court are only on errors of law or excess or want of jurisdiction.
- Ms Kelsey’s assertion that factual errors (if they are made out) are a relevant consideration to the assessment of public interest is, as a matter of principle, correct. In Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2), Wilcox CJ and Keely J observed:
“There is nothing in either of these cases, or in s 170UB or 170UC, to commend a narrow interpretation of the expression ‘public interest’ or to suggest that, as submitted by Comalco, consideration of the public interest may not include consideration of the interests of the parties to the relevant industrial dispute. On the contrary, the resolution of industrial disputes being a primary purpose of the Act, the disposal of a dispute in a manner that takes account of the interests of the disputants is plainly within the scope and purpose of the legislation. The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are
matters for the Commission’s consideration. The effect of the reference is to amplify the ‘scope and purpose’ of the legislation. But the statute does not direct the Commission as to the weight to be given to the various factors or as to the decision it should make.” (emphasis added)
- In considering whether leave should be given to argue factual error, a relevant consideration is the public interest in Ms Kelsey having her PID claim decided on its merits. However:
- Ms Kelsey had a full hearing over many days in the QIRC;
- she led all evidence and mounted all arguments she wished to mount;
- the case turned ultimately on questions of credibility of witnesses. Her evidence was not accepted.
- There were factual findings which were fatal to Ms Kelsey’s claim. In relation to each of the third to ninth respondents, the Vice President found that the decision to vote in favour of Ms Kelsey’s dismissal was not initiated by a prohibited reason.
- Positive findings were made by the Vice President as to the motivation of each of the respondents:
The third respondent; Cr Dalley:
“ The evidence of Cr Dalley was that as at 10 October 2017, she did not have any intention of terminating Ms Kelsey’s employment. However, by 7 February 2018 Cr Dalley, after considering Ms Kelsey’s overall performance, reached the view that her employment should be brought to an end at the conclusion of her probationary period.
 The question that was exercising Cr Dalley’s mind was whether or not Ms Kelsey was the appropriate person to perform the role of CEO at the Council. It is entirely understandable and appropriate that Cr Dalley would reflect upon all of Ms Kelsey’s conduct throughout her employment to reach that conclusion. I accept the argument that simply because in isolation the conduct prior to 10 October 2017 was not sufficient to warrant termination without allowing the Applicant to complete her probation does not mean that it was not a matter taken into account by Cr Dalley.”
The fourth respondent; Cr Lutton:
“ In the affidavit of Cr Lutton dated 11 April 2018, he identifies his reasons for voting to terminate Ms Kelsey’s employment.
 In coming to the decision to terminate Ms Kelsey, Cr Lutton had regard to:
- Ms Kelsey’s conduct and performance in relation to the Acceptable Request Guidelines;
- Ms Kelsey’s perceived personal alignment with certain Councillors, which I was concerned was driving division amongst the Councillors as a group;
- Ms Kelsey’s failure to consult with me, before directing all council staff to refer to me as Councillor Lutton at all times, rather than as Russell as I preferred;
- Ms Kelsey disregarding my request for legal advice; and instead sending me an email about accessing counselling;
- Ms Kelsey’s disregard for the views of Councillors, which was observed by me through:
- her insistence on changing, the seating arrangements in Committee meetings, to the detriment of the meetings operation, and despite the clear objections from all Councillors;
- her failure to implement the Committee Structure as reviewed and determined by the Councillors;
- Ms Kelsey (sic) refusal to provide me with information, in breach of her obligations under the Local Government Act 2009 (Qld), and which information she was willing to share with other Councillors;
- Ms Kelsey’s failure to understand the importance of CLC meetings, and further her failure to consult with all Councillors before seeking to alter those meetings;
- Ms Kelsey’s failure to display to me, the necessary knowledge and skills that I believed were imperative for a CEO regards budgetary and financial matters;
- my belief that Ms Kelsey orchestrated the service of the CCC warrants in a manner designed to cause the most embarrassment and damage to those Councillors served, while providing other Councillors (with whom I perceived Ms Kelsey is aligned) with forewarning of those events; and
- my overall belief that Ms Kelsey did not appreciate or understand the differences between Queensland and Victorian/South Australian local governments structures, in particular with regards to the roles of Councillors. …
 Cr Lutton formed the view, as he was entitled to do, that Ms Kelsey was not suitable for the role as CEO of the Council. Accordingly, he voted to terminate her employment.”
The fifth respondent; Cr Swenson:
“ The reasons for voting to terminate the employment of the Applicant are contained in his affidavit of 11 April 2018. Those reasons are as follows:
- Ms Kelsey’s actions which had created a perception within Council, and amongst the Councillors, that she had personally aligned herself with Councillors Power, Koranski, McIntosh, including:
- Ms Kelsey’s attendance at the relay for life event with Councillors Power, Koranski and McIntosh;
- Ms Kelsey’s decision to dress up in joint costume with Cr Power at this event;
- Ms Kelsey’s alignment with these three Councillors was driving division and mistrust amongst the Councillors, as there were ongoing concerns about those Councillors receiving favourable treatment, or otherwise breaching Council confidentiality by providing Ms Kelsey with information she would not have otherwise received;
- Cr Swenson’s belief that Ms Kelsey had misled the Councillors when asking them if we minded if she started sending regular updates to the Councillors, without advising that she intended to stop all other direct stream reports;
- Cr Swenson’s perception that Ms Kelsey had attempted to corral and oversee all information received by the Councillors, which he believed was causing information to bottleneck in Ms Kelsey’s office, or potential be sanitised, making it difficult for him to do his job as a Councillor;
- Cr Swenson’s concerns that Ms Kelsey’s inclination to micromanage all the information being received by the Councillors restricted the many talented staff employed by the Council from having their thoughts and ideas relayed to the Councillors;
- Cr Swenson’s belief that Ms Kelsey had failed to listen to or respect the views of the Councillors, including:
i. as to the seating arrangements for Committee meetings; and
ii. who an appropriate delegate would be to travel as part of the USA and Canada delegation;
- Cr Swenson’s concerns about Ms Kelsey’s attempt to change the working relationship between Councillors and Council staff by requiring Councillors to be acknowledged by their formal title at all times, and by restricting Councillors’ ability to access information, other than through her office;
- Ms Kelsey had (intentionally or unintentionally), allowed a perception to grow within Council that she was aligned with certain Councillors, which is inexcusable for a person holding the role of CEO; and
- Ms Kelsey appeared to be micromanaging or restricting the information which Councillors received, which the Cr Swenson felt was stifling both his ability to do his job, and the ability of the Council's talented staff to be heard. …
- I accept that Cr Swenson held a concern as to whether or not the Applicant had the capacity to remain impartial. By her conduct in dressing up in costume with Cr Power at the Relay for Life she had demonstrated, in the opinion of Cr Swenson, that she could not.
- This underlying concern about Ms Kelsey’s impartiality was maintained throughout his cross-examination as the following exchange demonstrates:
So it wouldn’t change your view, that she went in costume with Power as part of Koranski’s team with the full knowledge of the mayor prior? That wouldn’t change your view?
No, because the view that I held of - excuse me - the view that I held of Ms Kelsey attending with Councillor Power was not because it would necessarily upset the mayor or any of my colleagues. I felt it actually was a unwise choice in this case as only a few days previous, Councillor Power had gone out publicly asking for the mayor to resign, or making allegations about the mayor.
At best, she made a mistake in attending in the costume with Power?
A terrible mistake, yes.
Something that could very easily have been brought to her attention by anybody
within the council and her be told not to do it again. Correct?
I - I would expect a better understanding of the political ramifications of such behaviour.
That wasn’t an issue that you relied upon in determining to terminate her employment, was it?
Yes, it was. …
 Cr Swenson gave his reasons for making the decision that he did. Notwithstanding the cross-examination, his reasons remained effectively unchallenged. What is clear is that the evidence did not provide a basis to conclude that Cr Swenson was actuated by a prohibited reason.”
The sixth respondent; Cr Smith:
“ Cr Smith describes his reasons for voting to terminate Ms Kelsey's employment as follows:
‘Of these matters considered by me (both positive and negative), the issue that weighed most heavily on my mind was Ms Kelsey’s failure to display any significant level of strategic or financial management capabilities.
As I expressed earlier in my affidavit, in the coming decade Council’s borrowings are going to increase from approximately $201M to $1.4 Billion in order to fund critical infrastructure associated with the City’s priority development areas, and increase in population.
Given the monies being borrowed by the Council, it was critical to me that the CEO have those strategic and financial management capabilities, commensurate with the CEO’s remuneration (which I understood to exceed $500,000 per year).
As Ms Kelsey had not, in my view, displayed these strategic and financial management capabilities, I could not vote to further appoint Ms Kelsey to the role.’ …
- In regard to Ms Kelsey’s positive qualities, traits and achievements, Cr Smith considered that Ms Kelsey:
- seemed quite personable;
- appeared to be well liked by most staff; and,
- had been judged by Ms Hunter as doing a competent job.
- However, in the negative, he considered that:
- Ms Kelsey had not displayed any significant level of strategic or financial management capabilities, during her probationary period, and
- there were a number of incidents occurring during Ms Kelsey’s appointment, in which he considered Ms Kelsey had failed to show reasonable judgement and leadership; or failed to listen to or respect the views of the Councillors, including:
- Ms Kelsey’s decision to attend the Cancer Council relay for life as part of a team with Cr Power and Cr Koranski;
- Ms Kelsey’s actions in regard to the Acceptable Request Guidelines, and the incorrect advice being given to Councillors;
- Ms Kelsey’s disregard for the views of the Councillors when preparing the Report to Council regarding the Committee restructure; and
- Ms Kelsey’s disregard for the views of the Chairs, when advocating that she should sit at the top of the Committee table next to the committee Chair.
- Consistent with his expressed reasons for terminating Ms Kelsey’s employment, the issue that weighed most heavily on his mind was Ms Kelsey’s failure to display any significant level of strategic or financial management capabilities. Given the extent of anticipated borrowings by the Council, it was critical to him that the CEO have those strategic and financial management capabilities, commensurate with the CEO’s remuneration. Absent Ms Kelsey having an opportunity to display those strategic and financial management capabilities, he could not vote to further appoint Ms Kelsey to the role of CEO. …
 Despite Counsel for the Applicant’s best efforts, Cr Smith maintained his reasons for deciding to vote to terminate Ms Kelsey’s employment. There is no evidence to suggest that Cr Smith acted for a prohibited reason. It needs to be remembered that Cr Smith had the desire that Ms Kelsey’s probation period would be extended to allow more time for her to demonstrate her strategic and financial capabilities. The lack of a demonstrated strategic and financial capacity was his fundamental concern. Absent that extension of time, Cr Smith was not willing to vote in favour of her appointment.”
The seventh respondent; Cr Pidgeon:
“ Cr Pidgeon’s reasons for voting to terminate Ms Kelsey’s employment are set out in his affidavit of 11 April 2018 as follows:
- (a)budgetary process;
- (b)I did not believe Ms Kelsey was supportive of the Councillors’ views, and that she was not proactive in working cohesively with the Councillors on their vision for the City; and
- (c)I did not believe that Ms Kelsey had remained apolitical, but rather had aligned herself with a number of Councillors, causing division as amongst the Councillors. …
 When the evidence of Cr Pidgeon is considered as a whole it is evident that he maintained his view that he did not have faith or confidence in Ms Kelsey’s financial management abilities, and did not believe she was sufficiently engaged in the budgetary process; that Ms Kelsey was supportive of the Councillor’s views, and that she was not proactive in working cohesively with the Councillors on their vision for the City; and he did not believe that Ms Kelsey had remained apolitical, but rather had aligned herself with a number of Councillors, causing division amongst the Councillors. I accept that Cr Pidgeon genuinely held these reasons for terminating Ms Kelsey’s employment. I do not accept that he exercised his vote for a prohibited purpose.”
The eighth respondent; Cr Schwarz:
“ 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:
- Ms Kelsey had limited the communication between Council staff and the councillors;
- Ms Kelsey had required Council staff to refer to councillors by their formal title which impeded a close and harmonious working relationship;
- Ms Kelsey had aligned herself publicly by participating in the Relay for Life in costume with Cr Power;
- Ms Kelsey had been unable to assist Cr Schwarz in respect of the issue that arose about the Cedar Grove Waste treatment plant;
- Ms Kelsey insisted of having all information flow through the CEO which filtered the information received by Councillors;
- Ms Kelsey disregarded the views of the Councillors in respect of the re-organisation of Council committees;
- 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;
- 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;
- Ms Kelsey’s continued failure to adequately and promptly respond to requests for information and assistance, including, but not limited to, request about:
- the Alma Park Zoo;
- Cr McIntosh;
- the Strategic Directions Presentation; and
- the CBF Allowance.
- Ms Kelsey’s poor management of Councillor complaints and in particular her apparent inability to deal with such matters privately and sensitively; and
- 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. …
“ I accept Cr Schwarz’s evidence as to her reasons for voting to dismiss Ms Kelsey. I accept that her reasons were strongly held and were her genuine reasons for voting as she did. Cr Schwarz’s reasons did not disclose a prohibited reason”.
The ninth respondent; Cr Breene:
“ The reasons for voting to dismiss Ms Kelsey on 7 February 2018 are set out in Cr Breene’s affidavit of 11 April 2018 as follows:
Accordingly, I reflected on Ms Kelsey’s time during Council up until that point, and in particular considered:
- my concerns that Ms Kelsey was not genuinely interested in the issues facing my Division;
- my concerns regarding Ms Kelsey’s inability to remain apolitical, and her decision to align herself with those five Councillors who openly oppose Mayor Smith, creating division and dysfunction within the Council;
- my concerns regarding Ms Kelsey’s attempts to control what information Councillors received;
- Ms Kelsey’s refusal to work collaboratively with, or respect the views of, the Councillor, and in particular her disregard for the Committee structure agreed on by the Councillors;
- Ms Kelsey’s underwhelming 100 Day Report, which failed to articulate any significant achievements or strategy for advancing the Council's key objectives;
- Ms Kelsey’s performance during budgetary meetings; and
- Ms Kelsey’s management of the changes to the Acceptable Request Guidelines. …
 I have not been convinced that the reasons expressed by Cr Breene for deciding to terminate the employment of Ms Kelsey were not reasons genuinely held by her when she made her decision. Nothing in her evidence suggests to me that she decided to vote as she did for a prohibited reason.”
- The Vice President specifically found that Ms Kelsey was not an impressive witness. He found:
“ Overall, I did not find Ms Kelsey to be an impressive witness. She was unwilling to accept or to contemplate that there may have been some room for improvement or that on reflection she may have done something differently, or not at all. Throughout her evidence she had a tendency to deflect responsibility onto others and not to take responsibility in relation to what was submitted to Council for consideration. The manner in which Ms Kelsey gave her evidence was such that it was difficult to determine whether the response to a question was a matter of reconstruction or recollection.”
- These findings are all made by the Vice President enjoying his advantage in seeing the witnesses give evidence.
- Any appeal founded on alleged error in factual finding would face huge difficulty. The Court of Appeal recently summarised the principles in Greer v Greer. There, Bond JA observed:
“ Third, it is necessary to note the principles governing the nature and limits of appellate review where factual error is alleged:
- (a)A court of appeal conducting an appeal by way of rehearing of a decision of a judge sitting alone is bound to conduct a real review of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.
- (b)In some cases, an appellate court might be in just as good a position as the trial judge to make a decision on a factual question. But in other cases, the fact that the trial judge has had the advantage of forming impressions about the credibility and reliability of witnesses as a result of seeing and hearing them give their evidence, will require the appellate court to exercise an appropriate degree of restraint against interfering with factual findings likely to have been affected by that advantage.
- (c)If, having exercised an appropriate degree of appellate restraint where necessary, the Court of Appeal nevertheless concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own inferences and conclusions based on those findings.”
- In order to overturn findings based on credit, this Court would have to be satisfied “that any advantage enjoyed by [the Vice President] by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the [Vice President’s] conclusion”.
- Such a conclusion will usually only be drawn where the judge has made findings which are inconsistent with non-contentious evidence or are “glaringly improbable”.
- The Vice President identified the correct issues, namely the motivation of the respondents to vote to terminate Ms Kelsey’s employment. It was for the Vice President to determine what evidence he thought was important to the factual questions raised. The Vice President was not obliged to refer to every piece of evidence which Ms Kelsey thought was important. In my view, none of the so-called failures throw any doubts upon the central findings made in relation to the motivation of the respondents’ findings made upon the credit assessment of the relevant witnesses.
- It was then submitted that allegedly incorrect inferences were drawn. It is for the decision-maker to draw inferences from facts which are found proved. On a review based only on an error of law or want of jurisdiction, the issue is whether, as a matter of law, the inferences were open. They clearly were here.
- If leave was granted to raise factual errors, then this Court would draw its own inferences. However, in drawing any inferences different to those drawn by the Vice President, this Court must have regard to the advantage which the Vice President held upon hearing the witnesses.
- As observed, there are central factual findings as to what motivated the councillors to vote in favour of terminating Ms Kelsey’s employment. For the reasons explained, Ms Kelsey’s prospects of obtaining leave to challenge those factual findings are very poor. I also assess as very poor her prospects of reversing those findings given that they are based on credit assessment.
- If Ms Kelsey cannot challenge the central factual findings about the motivation of the councillors when voting to terminate her employment, two of the further grounds become irrelevant. They are the ground based on error of law concerning the basis of assessorial liability and error of law in holding that the PID Act was not an “industrial law”.
- There was debate before the Vice President as to the operation of s 571(3) of the IR Act. That is the accessorial liability provision. It provides:
“571 Contraventions of civil penalty provision
- (1)A contravention of a civil penalty provision is not an offence.
- (2)A person involved in a contravention of a civil penalty provision is taken to have contravened the provision.
- (3)For this section, a person is involved in a contravention of a civil penalty provision only if the person—
- has aided, abetted, counselled or procured the contravention; or
- has induced the contravention, whether by threats, promises or otherwise; or
- has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
- has conspired with others to effect the contravention.”
- Adverse action is action taken by the employer. The Council was Ms Kelsey’s employer. The Council may be liable for adverse action vicariously through the actions of the councillors. The individual councillors can only be liable accessorily.
- After considering various authorities relevant to the necessary state of mind of an accessory to make them liable for the act of the primary wrongdoer, the Vice President held:
“ The Third to Ninth Respondents contend that in respect of the vote to terminate the Applicant, in order to establish accessorial liability, the Applicant must establish actual knowledge on behalf of the alleged accessory of each of the essential elements of the offence. The Applicant must show that the Third to Ninth Respondents knew of the proscribed intention in not only their own vote, but in the votes of others.
 No such knowledge was pleaded; no evidence was adduced of any such knowledge; and the Third to Ninth Respondents were not cross-examined about the state of their knowledge of the other Councillors. It is argued that the absence of a positive allegation of knowledge being either pleaded or put to the Third to Ninth Respondents is indicative of the absence of any basis for those claims.”
- That statement of principle is challenged by Ms Kelsey. However, if the critical factual findings as to the motivation of the councillors in voting for Ms Kelsey’s dismissal stand, then accessorial liability becomes irrelevant; there is just no wrongdoing.
- A further ground challenged the Vice President’s finding that the PID Act was not an “industrial law”. The significance of that is that “adverse action” is taken in relation to a “workplace right”. A “workplace right” arises when granted by a “workplace law”. The Vice President held that the PID Act was not a workplace law.
- If the critical findings of fact as to the motivation of the councillors remain, then those findings are inconsistent with a reprisal. It is therefore unnecessary to determine the question of whether the PID Act is an “industrial law”.
“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed fact questions and to list the findings on the principal contested issues.”
- In DL, it was observed, following Soulemezis:
“…At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.”
- Ms Kelsey particularises the alleged inadequacy of reasons in great detail. The criticisms are, with respect, thinly veiled factual complaints. It was the prerogative of the Vice President to disagree with Ms Kelsey as to what the important evidence was and how all the evidence should be assessed. The Vice President’s reasoning is clear. He highlighted the evidence he thought was important, made findings of credit against Ms Kelsey and in favour of the respondents and applied the correct legal principles to the facts as found.
- For reasons I have explained, the critical findings (and those which are fatal to Ms Kelsey) were that the respondents were not motivated by a prohibited reason. It relation to that issue, the Vice President carefully analysed the evidence which he thought important and drew inferences as to the state of mind of each of the respondents. He adequately explains this in the reasons.
- In my view, the prospect of Ms Kelsey showing on appeal that the Vice President did not deliver adequate reasons are very poor.
- There are several passages in the judgment where Ms Kelsey says the rule in Browne v Dunn has been misapplied and this constitutes an error of law. These are paragraphs  and ,  and ,  and  and  and .
- Paragraph  is set out at paragraph  of these reasons. Paragraph  is relevant. Paragraphs  and  say:
“ For a person to be involved in a contravention, he or she must know all of the relevant facts. It is crucial therefore that the relevant facts here are that a majority of the Third to Ninth Respondents would vote for termination. There is no evidence that any of the Third to Ninth Respondents knew how anyone else was going to vote at the meeting.
“ If the Third to Ninth Respondents could not have known all the facts; then they could not have been involved in the contravention. Nor were they asked about this in their evidence when they were cross-examined. Nor was it pleaded. As noted earlier, the WhatsApp transcripts reveal no such evidence.”
- Ms Kelsey submits that each of the respondents were cross-examined about their knowledge as to how other councillors would vote. She is right about that, but that is not the point that was being made by the Vice President.
- Paragraphs  and  of the judgment are the culmination of an examination by the Vice President as to the requisite knowledge by an accessory of the principal offender’s offending in order to visit liability upon the accessory. The Vice President referred to, and apparently followed, the judgment of Flick J in Australian Building and Construction Commissioner v Parker where his Honour analysed the authorities concerning accessorial provisions. The passage cited by the Vice President culminates in a statement by Flick J:
“For a person to be ‘knowingly concerned in or a party to the contravention’ for the purposes of [the accessorial provision being considered by his Honour] the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention.”
- The knowledge of “the essential elements” was taken by the Vice President to include knowledge by each of the third to ninth respondents that the other respondents were voting for the removal of Ms Kelsey motivated by a “proscribed intention”. That is what is specifically referred to in paragraph  of the Vice President’s judgment and that is how paragraph  and paragraphs - ought to be understood.
- It was not put to any of the third to ninth respondents that they knew that any of the other respondents were voting for a proscribed purpose.
- There is therefore no error in those paragraphs of the Vice President’s judgment. Even if there was error in those paragraphs, it would not improve the prospects of Ms Kelsey’s appeal. As already explained, unless there can be a successful challenge upon the crucial findings made by the Vice President as to the motivation behind the respondents voting to remove Ms Kelsey, the accessorial provisions are irrelevant.
- As already observed, Ms Kelsey also submits that paragraphs  and  of the Vice President’s judgment show error in the application of the rule in Browne v Dunn. They are in these terms:
“ It is accepted that the Third to Ninth Respondents were not cross-examined about Mayor Smith’s conduct in any way that impacts the case against him. Nor was it put to the Third to Ninth Respondents that any of the conduct identified caused their decision to terminate Ms Kelsey.”
“ 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.”
- Ms Kelsey refers to the cross-examination of various witnesses where they were questioned as to whether the Mayor could influence or did influence their voting on Council. That is not the point of paragraphs  and  of the Vice President’s judgment.
- The reference to the “conduct” in paragraph  is a reference to the conduct of the Mayor and that must be the conduct which is alleged against him in the proceedings.
- The case which Ms Kelsey ran against the Mayor is summarised at paragraphs  of the Vice President’s judgment. It is unnecessary to set these paragraphs out. They are long and detailed.
- The point being made by the Vice President in paragraphs  and  is that it was not put to any of the respondents that the decision to vote to terminate Ms Kelsey was motivated by any of the conduct of the Mayor. Put in terms of the PID Act, it was not put that the respondents acted in support of the Mayor’s actions or in reprisal as to Ms Kelsey’s complaints about them. That appears to be accurate.
- Ms Kelsey criticises what she apparently regards as findings in paragraphs  and  of the Vice President’s judgment. It is necessary though to refer also to paragraphs  and . Paragraphs - are:
“ The Applicant was criticised by the Third to Ninth Respondents for the failure to directly confront some of the Respondents about their sworn reasons for voting to terminate Ms Kelsey’s employment.
 The Third to Ninth Respondents relied on the Victorian Court of Appeal decision in Curwen & Ors v Vanbreck Pty Ltd which dealt with the effect of a witness not being crossexamined. The Court wrote:
‘ If the appellants’ submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness’s evidence or impugn the witness or party’s conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory. But whatever the effect of ‘notice’, the burden of persuasion as to that fact does not shift. remains upon the party who seeks to establish the allegation. The cross-examiner who because of ‘notice’ refrains from ‘putting’ the allegations to the witness embarks upon a potentially dangerous forensic course. The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue. That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.
- The rule facilitates the tribunal’s assessment of the issue. If the tribunal’s capacity to properly assess the merit of the allegation has been impaired because the issue was not explored with the witness, the cogency and weight to be attached to the allegation is likely to be affected. As Redlich J stated in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd:
‘Credit issues need to be identified when the witness is cross-examined, and the trial unfolds. The judge’s capacity to assess the credibility of witnesses ought not to be impeded. Any relaxation of the obligation to comply with the rule in Browne v Dunn has the potential to do so, thereby increasing the risk of injustice to a witness or party.
- Where, because there is ‘notice’, it is not considered necessary that the witness be cross-examined, the risk arises that the tribunal will not be able to reach an affirmative conclusion on the issue. That is to say, the consequence of the forensic choice to abstain from challenging the witness may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness.’ (citations omitted)
- As the authorities suggest, issues of credit need to be identified when the witness is cross-examined, and the hearing unfolds. A failure to do so may leave the tribunal of fact unpersuaded as to the truth of the allegation.
- 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’.”
- There is no finding at paragraph . It just notes a criticism. The Vice President, after noting the criticism, refers to principles laid down in Curwen & Ors v Vanbreck Pty Ltd. At paragraph , he accepts those principles and then gives specific examples in paragraph . There can be no criticism of the examples given at paragraph . Nothing in paragraphs - suggests misapplication of the rule in Browne v Dunn.
- In the same theme, Ms Kelsey refers to paragraphs  and  of the Vice President’s judgment. These relate to the eighth respondent, Cr Schwarz. It is necessary to refer to paragraphs  and . Paragraph  is set out at paragraph  of these reasons. Paragraph  is:
“ The Applicant made no attempt to undermine Cr Schwarz’s reasons.”
- Paragraph  is:
“ None of the reasons advanced by Cr Schwarz for voting to terminate the employment of the Applicant were seriously challenged during cross-examination.” (emphasis added)
- In apparent proof of the inaccuracy of those paragraphs, Ms Kelsey refers to two passages in the transcript, T 15-101, ll 19-27 and T 15-22, ll 9-30. The reference to T 15-22 appears incorrect. It probably should be T 15-123. Those two passages are:
“You didn’t take into account the ARG issue when you decided to terminate Ms Kelsey, did you?---I considered it.
It was irrational of you, having read this document contemporaneously to it being received by you in November to take the ARO issue into account, wasn’t it?---No, I was not supportive of Ms Kelsey’s management with the ARGs.
So this is a made-up reason to disguise the real reason for the termination, being the PID, isn’t it?---It’s a combination of many reasons, and I did not take the PID into consideration at all.”
“You had no reason to disbelieve that she was acting on legal advice?---I had no reason to disbelieve but I still feel, in her capacity, that she could have handled that a lot better and stopped pitting councillors up against each other.
So you thought she was putting councillors up against each other, did you?---I did feel that way under some of these circumstances.
So it wasn’t - your issue in respect of the councillor complaints wasn’t that she’d informed councillors as to who’d made the complaint. You had this view that she was putting councillors up against each other?---It was the way that it was done. It was the way that it was communicated. It could have been handled a lot better.
Another example, I suggest, of you just scrounging around trying to create anything to criticise her for, whether it was based in fact or not; correct?---Absolutely not. That is my belief.
You never raised that issue with Ms Kelsey that she was pitting councillors against each other?---No, I did not, in that term.
Never gave her a chance to explain as to whether your allegation you’ve just made was true or incorrect?---No, I did not.
But notwithstanding that, you say that was something you relied upon to terminate her employment, was it?---I said that’s how I felt.”
- The complaint is that there was an attempt to challenge Cr Schwarz’s reasons.
- It is well-established that reasons ought not “to be scrutinised upon overzealous judicial review by seeking to discern [error]”. At paragraph  of the judgment, it is said that Cr Schwarz’s reasons for termination were not “seriously challenged” during cross-examination. Having regard to the cross-examination, the Vice President’s assessment is fair. The cross-examination which Ms Kelsey points to, puts in issue one of many reasons which Cr Schwarz gave for making the decision to terminate Ms Kelsey’s employment. The other reasons given remained unchallenged.
- The final alleged error of law is the first one mentioned in the draft grounds of appeal. It is said to emerge from two passages in the Vice President’s judgment, paragraph  and paragraphs  and .
- Paragraph  should be understood in the light of paragraph . Those two paragraphs are:
“ As the evidence before the Commission suggests, Cr Swenson was concerned about the purported closeness between Ms Kelsey and Councillors Power, Koranski and McIntosh.
 As the Third to Ninth Respondents submit, the question is not whether the perception was reasonable, but whether in fact Cr Swenson held such a concern. In light of Ms Kelsey’s conduct, such as dressing up in costume with Cr Power and attending an event inside Cr Schwarz’s division, there was a basis for that concern.”
- Paragraphs  and  are:
“ It is submitted that the focus on whether the reasons were fair or reasonable is a distraction. The Third to Ninth Respondents were cross-examined at some length as to whether their reasons for terminating the Applicant’s employment were fair, reasonable or justified. As the First and Third to Ninth Respondents submitted this is not an unfair dismissal case. Such an approach is not relevant for the Commission’s consideration. What the employer’s reasons were for terminating an employee is to be determined by what the decision maker or makers knew or believed at the time of the dismissal. It is only necessary to find that the stated reasons were the genuine reasons.
 The point is well illustrated in CFMEU v Anglo Coal (Dawson Services) Pty Ltd. In that case, the Full Court was required to consider a claim for adverse action arising out of the taking of sick leave. The employer had dismissed the employee for falsely claiming that he was sick. The evidence at trial revealed that the employee was in fact sick. However, notwithstanding that the claim for sick leave was validly made, because the employer's reason was that the employee had been dishonest, the employer was found not to have contravened ss 340(1) or 352 of the FW Act. This was so notwithstanding the finding by Jessup J that the worker was wrongfully dismissed or Rangiah J’s finding that it was inevitable that the worker would have been successful with an unfair dismissal claim. As Rangiah J held:
‘As it turned out, Mr Power’s belief that Mr Byrne had acted dishonestly by taking sick leave was wrong. The primary judge found that Mr Byrne was genuinely sick. However, the question of what the employer’s reasons for dismissing Mr Byrne were must be considered on the basis of what the employer knew or believed at the time of the dismissal. The primary judge found that the decisionmaker genuinely, although wrongly, believed that Mr Byrne had acted dishonestly. That belief was brought about by Mr Byrne’s conduct. The fact that it was demonstrated at the trial that Mr Byrne was in fact genuinely sick and entitled to take sick leave could not be determinative of the employer’s reasons for dismissing him at an earlier time.’”
- Ms Kelsey’s submission is that the Vice President has not considered the reasonableness and fairness of the reasons given for Ms Kelsey’s dismissal, and has not considered whether her dismissal was justified. They are relevant considerations, Ms Kelsey says, to the factual inquiry into whether the respondents were in fact motivated by the reasons they offered. It follows, Ms Kelsey submits, that the Vice President has impermissibly restricted his fact finding functions and excluded relevant evidence from his consideration.
- The Vice President’s comments, made at paragraphs  and , fairly understood, are ones directed to the legal element of Ms Kelsey’s claim which he was required to consider. That is why he directed himself to CFMEU v Anglo Coal (Dawson Services) Pty Ltd and Rangiah J’s observations that the ultimate issue is the subjective motivation of the employer.
- In my view, the Vice President identified the right question and he answered it. The reasons for judgment show a wide ranging analysis and assessment of the evidence and I can see nothing to suggest that he has impermissibly limited his fact finding function.
- For the reasons that I have explained above, the appeal has no reasonable prospects of success.
Ground 1: Evidence relating to assessing reasons actuating the dismissal vote. There is no substance in the criticism of the Vice President’s approach.
Ground 2: Accessorial liability. That becomes irrelevant unless there can be a successful challenge to the findings of the Vice President that the third to ninth respondents were not actuated by a prohibited motive.
Ground 3: Inadequacy of reasons. This is really a de facto attack upon factual findings. There is no reasonable prospect of an error of law by way of failing to give adequate reasons being maintained.
Ground 4: Meaning of “industrial law”. This is irrelevant if the findings by the Vice President stand that the third to ninth respondents were not motivated by a prohibited reason.
Ground 5: Browne v Dunn. There is no substance to this ground.
Ground 6: Errors of mixed law and fact. These can only be raised by leave where public interest is made out. There is no reasonable prospect of leave being achieved in this case.
- Ms Kelsey ran a case before the Vice President which was always going to turn on credit issues. She lost those credit issues. The respondents were believed and she was not. As there is no reasonable prospect of her overcoming those factual findings, her prospects of success are non-existent.
- As she has no reasonable grounds of success on the appeal, the application should be dismissed.
- For the reasons I have earlier explained, Ms Kelsey has demonstrated contumelious disregard for the processes of the Court and the legitimate interests of the respondents and, even now, there is no reason to be confident that she could prosecute the appeal if she was given leave to amend her application to appeal.
- In those circumstances, even if I had identified a reasonably arguable ground of appeal, I would have still dismissed the application on the basis that it was not just and fair to allow the amendments in all the circumstances.
- At the hearing of the application, the parties all expressed a preference that costs be dealt with on written submissions. That is appropriate and I will make orders to facilitate that course.
- The orders are:
- Application dismissed.
- Any respondent seeking costs to file and serve a written submission by 13 May 2022.
- The applicant shall file and serve any submissions in defence of the costs application by 27 May 2022.
- Any respondent may file any reply submission on costs by 3 June 2022.
- All parties have liberty to apply for leave to make oral submissions on costs by filing an application on or before 17 June 2022.
- In the absence of any application being filed by 17 June 2022, the question of costs will be decided on the written submissions without further oral hearing.
ATTACHMENT TO NOTICE OF APPEAL FILED 18 JUNE 2021
4. DETAILS OF DECISION SOUGHT
- That the decision of Vice President O'Connor made on 1 April 2021 in PID/2017/3 be set aside.
- Declarations that the first, and third to ninth respondents contravened the Industrial Relations Act 2016 (Old) (IR Act) and Public Interest Disclosure Act 2010 (Qld) ( PID Act).
- That the first respondent reinstate the applicant to her position as CEO.
- That the first, and third to ninth respondents pay compensation to the applicant in lieu of lost remuneration since the termination of her employment on 7 February 2018.
- That the first respondent maintain the applicant's continuity of service.
- That the first, and third to ninth respondents pay to the applicant exemplary damages sufficient to compensate her for other loss including damage to reputation, distress, hurt and humiliation and additional expenses associated with her dismissal.
- That the first, and third to ninth respondents pay the Applicant;s costs of and incidental to this appeal and PID/2017/3.
- Such other orders as the Court thinks fit.
5. GROUND OF THE APPEAL
Errors of law
The applicant appeals the decision below on the bases that the Vice President:
Evidence relevant to assessing reasons actuating dismissal vote
- Erred in finding that, when assessing whether the lawful reasons that the third to ninth respondents alleged actuated their decision to vote for the termination of the applicant's employment, the reasonableness, fairness or justification of those reasons was irrelevant (paragraphs 803 to 804 of the reasons).
- Erred in finding that it was an essential element of establishing involvement by the third to ninth respondents in the first respondent's contravening conduct that each of those individual respondents knew how the other respondents were going to vote on the motion to terminate the applicant's employment (paragraphs 294 and 760 to763 of the reasons).
Inadequacy of reasons
- Failed to adequately disclose his Honour's path of reasoning as to the:
- (a)conclusions that were reached in respect of the credibility assessments and motivations of the third to ninth respondents for their vote in favour of the termination of the applicant's employment;
- (b)weight his Honour attached to the legal advice received by the third to ninth respondents prior to the vote on the motion to terminate the applicant's employment (paragraphs 620 and 776 of the reasons); and
- (c)finding that the level of hostility towards the applicant apparent from the 'WhatsApp' transcripts could not be explained by reference to the applicant's lodgement of her publicinterest disclosure (paragraph 778 of the reasons).
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the third respondent:
'Having said all of that, I still believe that we have numbers to tell CEO NO! No? No!!'
So basically, the PIO is a tactic and it's taken a lot - put a lot of stress and a lot of drama and a lot of pain to a lot of people who are not in this room and never will be in this room. And, you know, to me, that's really very disappointing. It's very disappointing'
- (a)the fact of, and circumstances surrounding, the imposition of rules of debate relating to the motions as to whether the applicant's employment should be confirmed or terminated;
- (b)whether the delivery or content of the applicant's public interest disclosure was objectionable for the purposes of assessing her claim that she was upset by the 'manner it was delivered (sic)' (paragraph 355 of the reasons);
- (c)her acceptance of her role in marshalling 'the numbers' in respect of a decision by the first respondent to contest the applicant's interlocutory application for reinstatement;
- (d)her comments in 'WhatsApp' exchanges that she 'had the Mayor's back' and thanking the other members of the relevant 'WhatsApp' group for their support of each other;
- (e)her further comment in 'WhatsApp' exchanges:
- (f)her agreement with a comment by the fifth respondent that, had the applicant's public interest disclosure finished at page one of that disclosure, the fifth respondent could 'see that [a pathway out] is_possible';
- (g)evidence as to her frustration as to the 'whole situation';
- (h)her change in demeanour and views towards the applicant immediately prior to and after the lodgement of the public interest disclosure;
- (i)her involvement in impugning the applicant by reference to the applicant having made a complaint or inquiry in relation to her employment when employed at Mitcham Council;
- (j)her reference to the applicant's 'litigious nature';
- (k)her statement at a meeting on 22 January 2018:
- (l)her action in seeking advice from the Local Government Association Queensland (LGAQ) ahead of the vote as to the applicant's continued employment, in which she wrote that she needed to help her 'calm the "horses"' as well as her related reference to engaging in a 'game of poker'.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the fourth respondent:
- (a)his membership of the 'Telegram' group;
- (b)his evidence that he had contemporaneously recorded his reasons for voting to dismiss the applicant, which document he did not produce notwithstanding that the document was called for by the applicant's counsel.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the fifth respondent:
- (a)the evidence of the sixth respondent that a photo opportunity by which the second, fifth and sixth respondents were photographed together in front of corflutes and while engaged in political campaigning was pre-planned, which the fifth respondent had denied;
- (b)the evidence of the third and sixth respondent that the fifth respondent had written the 'WhatsApp' message:
'Amen to that. And the good guys will win (that's us)'
immediately after another comment to the effect that one of the participant's heart was breaking for the Mayor; and
- (c)his evidence of having described the second respondent as his 'good friend' via social media.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the sixth respondent:
- (a)whether the delivery or content of the public interest disclosure was objectionable for the purposes of assessing his claim that the letter was, as the sixth respondent had characterised it, 'disgraceful'; and
- (b)his involvement in impugning the applicant by reference to the applicant having made a complaint or inquiry in relation to her employment when employed at Mitcham Council.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the third to fifth and seventh to ninth respondents:
- (a)the evidence of the sixth respondent that there were digital communications that had passed between those respondents that could not be recovered, which other respondents gave evasive evidence in respect of;
- (b)the evidence of the sixth respondent that it was common for the second respondent, and other councillors, to make direct and specific requests of him and other councillors in respect of how they would vote on a particular issue;
- (c)the evidence of the sixth respondent that the third respondent had approached him the day prior to the vote and requested that he move the motion to terminate the applicant's employment;
- (d)the acceptance by the sixth respondent in cross-examination that he 'had the Mayor's back'; and
- (e)the fact that the sixth respondent was the only witness who gave any evidence attributing to any particular witness the 'WhatsApp' message:
'Amen to that. And the good guys will win(that's us)'
immediately after another comment to the effect that one of the participant's heart was breaking for the Mayor.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the seventh respondent:
- (a)whether the delivery or content of the public interest disclosure was objectionable for the purposes of assessing his claim that he was concerned not about the public interest disclosure or the issuing of legal proceedings, 'but rather the involvement of lawyers and [the applicant's] insistence that her performance issues be dealt with by her lawyers and not face to face with her employer' (cf. paragraph 528);
- (b)the statement by him in a discussion with Ms Hunter that the applicant was 'litigious'(cf.518);
- (c)his apparent reference to the applicant as a member of a group of 'hyenas'; and
- (d)his evidence as to the circumstances in which he came to download the 'Telegram' application.
- Failed to provide adequate reasons as to how his Honour took account of the following matters potentially adverse to the credit of the eighth respondent:
- (a)the following exchange between her and Councillor Raven:
Cr Schwarz: 'I'm sure you wouldn't want a whistle blower in your party'.
Cr Raven: 'We've got them all over the place mate'.
Cr Schwarz: 'I know, and you get rid of them'.
- (b)the evidence by which the eighth respondent sought to explain the above exchange; and
- (c)her statement at the meeting of 13 October 2017 that the applicant's public interest disclosure was 'sitting over our head in the CEO, in sitting the way it is at the moment (sic)'.
Meaning of 'industrial law'
- Erred in finding that the PIO Act, or relevant sections of it, including 13, 17 and 48, was not an industrial law for the purposes of the IR Act (paragraphs 35, 44 to 63 and 747 of the reasons).
Browne v Dunn
- Erred in the application of the rule in Browne v Dunn (1893) 6 R. 67, H.L in that each of the third to ninth respondents were challenged in respect of their asserted reasons for termination of the applicant's employment (cf. 819 of the reasons).
Errors of mixed law and fact
To the extent that they relate to alleged errors of fact, the applicant seeks leave, under s 557(2) of the IRAct, to appeal the decision below on the bases that the Vice President:
- 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 ins 283 of the IR Act, being the filing of the first instance proceeding (cf. paragraph 314 of the reasons); and
- (c)each of the third to ninth respondents destroyed 'WhatsApp' and 'Telegram' records, and did not provide adequate explanations for their conduct in so doing.
- Failed to have regard to the following relevant evidence in assessing the reasons of each of the third to ninth respondents for termination of the applicant's employment:
- (a)statements made by the second respondent to the applicant relating to his alignment with the third to ninth respondents;
- (b)statements made by the second respondent to the applicant in respect of her alleged alignment with councillors other than the second to ninth respondents;
- (c)the failure by the third to ninth respondents to bring to the applicant's attention or to the attention of the non-respondent councillors each of the performance and conduct concerns on which his Honour found their vote to terminate her employment was based, prior to that vote being cast;
- (d)the fact of and circumstances surrounding the implementation of rules of debate relating to the motions as to whether the applicant's employment should be confirmed or terminated;
- (e)the fact that no reason was given to the applicant immediately after the termination vote explaining the reasons for that vote; and
- (f)the fact that the probation report prepared by Ms Hunter, read as a whole, supported confirmation of the applicant's employment.
- Had regard to the following irrelevant considerations:
- (a)the incorrect way in which the third to ninth respondents characterised the submissions of the applicant in respect of the degree of alignment sought to be proved by the applicant as between the individual respondents (paragraphs 770 to 771 of the reasons); and
- (b)the fact that the applicant had caused for the public interest disclosure to be sent to each of the individual respondents' Council email accounts(paragraphs 154 and 805 of the reasons).
- Erred in making findings of fact that, in respect of each of the third to ninth respondents, there was no alignment as between the third to ninth respondents as to whether the applicant's employment ought to be continued (paragraphs 534, 767, 770 to 771, 775 to 776 and 783 of the reasons).
- Erred in making findings of fact that, in respect of the third to ninth respondents:
- (a)none of the third to ninth respondents were motivated by unlawful reasons in their decision to vote to terminate the applicant's employment (paragraphs 423, 509, 537, 580, 582, 585, 601, 620, 622, 692 and 736 of the reasons);
- (b)each of the third to ninth respondents were not motivated by unlawful reasons in their decision to vote to terminate the applicant's employment(paragraphs 423, 509, 537, 580, 582, 585, 601, 620, 622, 692 and 736 of the reasons); and
- (c)membership of the 'WhatsApp' group by the second, third, fifth, sixth, seventh, eighth and ninth respondents was a neutral factor and not evidence of coordination as between them, while the fact that the fourth respondent was not a member of any group was positive evidence of a lack of coordination as between him and the other individual respondents (paragraphs 586 and 619 of the reasons).
- Erred in making findings of fact that, in respect of the third to ninth respondents:
- (a)the applicant had presided over the Acceptable Request Guidelines process, that this process was a 'shemozzle' and that it was reasonable and understandable that the third respondent would have held that concern (paragraph 401 of the reasons);
- (b)her statement that she was 'breathing fire' was a reference to the applicant restricting staff of the first respondent from passing on information to councillors (paragraph 428 to 430 of the reasons);
- (c)her statement that she had 'lost trust completely' in the applicant was restricted to the applicant potentially disseminating confidential information in an inappropriate manner (paragraphs 440 to 443 of the reasons);
- (d)her statement that she had 'made [her] decision' could only be characterised as a statement that she had made 'a decision that she "would be protecting herself" (paragraph 444 to 446 of the reasons);
- (e)in her vote to remove the applicant from employment, she was motivated by the 'Relay for Life' and the 'USA trip' issues when she had made concessions in respect of those reasons in cross-examination (cf. paragraphs 372 to 378 and 405 of the reasons).
- Erred in making findings of fact that, in respect of the fourth respondent. in his vote to remove the applicant's employment, he was motivated by the 'Change to Committee seating', 'Civic Leadership Cabinet meetings', and the 'Performance in budget meetings' issues when he had made concessions with respect to those reasons in cross-examination (cf. paragraphs 584, 605 to ).607 and 612 of the reasons
- Erred in making findings of fact that, in respect of the fifth respondent:
- (a)his written statements:
'The wicked conceive evil; they are pregnant with trouble and give birth to lies. They dig a deep pit to trap others, and then fall into it themselves. The trouble they make for others backfires on them. The violence they plan falls on their own heads.'
'Santa can't help so I'm praying that God himself will equip us all with wisdom to discern the right steps to take, peace for Luke, Andrea and everyone else, a speedy resolution that exposes the lies trying to undermine our Mayor, and that their wicked schemes come back to trap them'
related mainly to persons other than the applicant (paragraph 580 of the reasons);
- (b)one of the reasons for his vote to terminate the applicant's employment was that he was concerned about the fact that the applicant's public interest disclosure had been disseminated to too wide a group of persons, when this reason was not one relied upon by him to explain his vote (cf. paragraph 572); and
- (c)his comments at the meeting of 13 October 2017 related to his concern about the applicant's attempt to change the working relationship between councillors and staff of the first respondent by requiring councillors to be acknowledged by their formal titles at all times and by restricting councillors' abilities to access information other than through the applicant's office (paragraphs 571 to 574 of the reasons).
- Erred in making findings of fact that, in respect of the sixth respondent:
- (a)the reasons he gave for voting for the termination of the applicant's employment were supported by his contemporaneous statements to Ms Rachel Hunter (paragraph 507 of the reasons); and
- (b)in his vote to remove the applicant from her employment, he was motivated by the 'Relay for Life', the 'Acceptable Request Guidelines' and the 'Committee meetings', when he had disavowed those reasons in cross-examination.
- Erred in making findings of fact that, in respect of the seventh respondent, his references to the applicant being litigious and being prevented from progressing the applicant's probationary review by a 'legal process' were references to demands made subsequent to the applicant's public interest disclosure, rather than the disclosure itself (paragraphs 524 to 530 of the reasons).
- Erred in making findings of fact that, in respect of the eighth respondent, her reference to the applicant being 'litigious' was not a criticism of the applicant for having made a public interest disclosure or a suggestion that the eighth respondent proposed to take adverse action against the applicant because of that fact (paragraph 687 of the reasons).
- Erred in making findings of fact that, in respect of the ninth respondent, her vote to remove the applicant from her employment, was motivated by the '100 day report', the applicant's alleged alignment with the non-respondent councillors, including in relation to the 'Relay for Life', and 'Control of Information' issue when she had made concessions with respect to those reasons in cross-examination (cf. paragraphs 700, 716 to 719, 728 and 732 of the reasons).
- Erred in making findings of fact that the subject matter of the public interest disclosure did not involve the third to ninth respondents (paragraph 805 of the reasons).
- Erred in failing to consider, or adequately consider the matters set out in paragraphs 4 to 1 0 in determining the third to ninth respondents' reasons for voting to terminate the applicant's employment.
- Erred in failing to consider, or adequately consider, the following inconsistencies in the evidence as to the relevant respondents' stated reasons for termination of the applicant's employment, and the effect of such inconsistencies on their respective credit:
- (a)in respect of the third respondent:
- her initial positive evidence that she had not asked any councillor to move the motion terminating the applicant's employment, her subsequent evidence that she may have had a conversation with the sixth respondent and her further evidence that she did not recall asking anybody to move the motion (paragraph 456);
- her evidence that she had difficulty in remembering who participated in the various 'Whats App' and 'Telegram' messaging groups; and
- her failure to recall any salient facts to support her claim that the applicant had undermined her professional ability;
- (b)in respect of the sixth respondent, the inconsistencies referred to at ground 21(b);
- (c)in respect of the seventh respondent:
- his initial affidavit evidence that he had never received a request from the second respondent as to how to vote, which he retracted in cross examination; and
- his evidence that, despite issues relating to the use of formal titles and the 'Relay For Life' issues forming two of the reasons for his vote to terminate the applicant's employment, he was not concerned with those matters once he raised the issue of the formal titles with the applicant, and when the Relay For Life issue had first come to his attention;
Public interest consideration
- (d)in respect of the eighth respondent, the explanation that she gave for the evidence referred to in ground 10; and
- (e)in respect of the ninth respondent, the contradictory evidence that she gave about the extent to which the applicant's attendance at the Relay for Life event actuated her decision to vote for the applicant's dismissal.
- 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:
 Kelsey v Logan City Council & Ors (No 8)  QIRC 114.
 Unless otherwise indicated, reference to “the respondents” is a collective reference to those respondents still in the proceedings.
 Public Interest Disclosure Act 2010, s 3.
 Public Interest Disclosure Act 2010, s 48.
 Public Interest Disclosure Act 2010, s 49.
 Kelsey v Logan City Council & Anor  QIRC 009.
 Industrial Relations Act 2016.
 Industrial Relations Act 2016 at s 6 and sch 5.
 Kelsey v Logan City Council & Ors (No 8)  QIRC 114 at .
 Kelsey v Logan City Council & Ors (No 8)  QIRC 114.
 Industrial Relations Act 2016, s 564.
 Statutory notes omitted; emphasis added.
 The “appeal period” as defined.
 Name and address of the respondents: r 139(2)(a).
 Identification of the parts of the decision appealed: r 139(2)(b), the grounds of appeal: r 139(2)(c) and the decision sought: r 139(2)(d).
 Gambaro v Workers’ Compensation Regulator  ICQ 5 and MNSBJ Pty Ltd v Downing  QCA 141.
 Gambaro at  and , MNSBJ at , -.
 Rich v Chubb Protection Services (2001) 167 QGIG 159, A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations)  ICQ 16 and Gallo v Dawson (1990) 93 ALR 479 at 481.
 Gallo v Dawson (1990) 93 ALR 479 at 481.
 Industrial Relations Act 2016, s 539
 (2002) 209 CLR 478.
 At .
 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154.
 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at  and .
 See generally the judgment of Fraser JA in TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440 at .
 18 June 2021.
 The last day of hearing before the Vice President.
 The day the Vice President’s decision was delivered.
 See paragraph 22 of her affidavit appearing at paragraph  of these reasons.
 Paragraphs 20 and 22 of her affidavit.
 Which appears in paragraph  of these reasons.
 Set out at paragraph  of these reasons.
 Paragraph 1 of the grounds of appeal.
 Adverse action is action taken by an “employer”; Industrial Relations Act 2016, s 282. The Council, not the councillors, is the employer.
 Paragraph 2 of the grounds of appeal.
 Paragraphs 3-10 of the grounds of appeal.
 Paragraph 11 of the grounds of appeal.
 (1893) 6 R 67; this is paragraph 12 of the grounds of appeal.
 Paragraphs 13-27 of the grounds of appeal.
 Which arise in an industrial situation.
 (1995) 61 IR 455.
 A reference to O'Sullivan v Farrer (1989) 168 CLR 210 and Re Queensland Electricity Commission; Ex parte Electrical Traders Union of Australia (1987) 61 ALJR 393.
 At 479-480.
 There is no suggestion she did not.
 Reasons, paragraph ; findings, with respect to Cr Dalley, paragraph ; with respect to Cr Smith, paragraph ; in relation to Cr Pidgeon, paragraphs  and ; in relation to Cr Swinson, paragraph ; in relation to Cr Lutton, paragraphs  and ; in relation to Cr Schwarz, paragraphs  and  and in relation to Cr Breene, paragraphs  and .
 Fox v Percy (2003) 214 CLR 118 at , Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, 179.
  QCA 143.
 Fox v Percy (2003) 214 CLR 118 at .
 See Warren v Coombes (1979) 142 CLR 531 at 551; Fox v Percy (2003) 214 CLR 118 at  and Lee v Lee (2019) 266 CLR 129 at -.
 See the High Court decisions listed in Queensland v Masson (2020) 381 ALR 560 at 594 , fn 111.
 Fox v Percy (2003) 214 CLR 118 at .
 Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, 179, citing Watt (or Thomas) v Thomas  AC 484 at 488, followed in Fox v Percy (2003) 214 CLR 118 at .
 Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 at 844, followed in Fox v Percy (2003) 214 CLR 118 at .
 Paragraphs 13-27 of the grounds of appeal.
 Eg paragraphs 13, 14, 26 and 27 of the grounds of appeal.
 Paragraph 15 of the grounds of appeal.
 Eg paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the grounds of appeal.
 Warren v Coombes (1979) 142 CLR 531 at 551, followed in Fox v Percy (2003) 214 CLR 118 at .
 Paragraph 2 of the grounds of appeal.
 Paragraph 11 of the grounds of appeal.
 Conceded on the appeal, T 1-21, ll 9-20.
 Industrial Relations Act 2016, s 284(1).
 Reasons, paragraphs  and -.
 Paragraph 3 of the grounds of appeal.
 Paragraph 12 of the grounds of appeal.
 Paragraph 1 of the grounds of appeal.
 Which is a court of record, see Industrial Relations Act 2016, s 429.
 AK v Western Australia (2008) 232 CLR 438 at , followed in Wainohu v New South Wales (2011) 243 CLR 181 at .
 (1987) 10 NSWLR 247.
 (2018) 266 CLR 1 at .
 At 259.
 At .
 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
 Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.
 Also set out at paragraph  of these reasons.
 Kelsey v Logan City Council & Ors (No 8)  QIRC 114 at .
 (2017) 266 IR 340.
 Australian Building and Construction Commissioner v Parker (2017) 266 IR 340 at .
 (2009) 26 VR 335.
 (2009) 26 VR 335 -.
 (2009) 26 VR 335.
 T 15-101, ll 19-27.
 T 15-123, ll 7-32.
 Reasons, paragraph .
 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, following Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and followed in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at -.
 Ms Kelsey’s management with the ARG.
 (2015) 238 FCR 273.
 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at .
 (2015) 238 FCR 273.
 Paragraph 11 of the grounds of appeal.
 Paragraph 12 of the grounds of appeal.
 Paragraphs 13-27 of the grounds of appeal.
 See paragraphs - of these reasons
 Industrial Relations Act 2016, s 539.
- (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.
- Published Case Name:
Kelsey v Logan City Council & Ors (No 2)
- Shortened Case Name:
Kelsey v Logan City Council (No 2)
 ICQ 13
Davis J, President
06 May 2022