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  4. Kelsey v Logan City Council (No 3) - [2022] ICQ 21

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Kelsey v Logan City Council (No 3)[2022] ICQ 21

Kelsey v Logan City Council (No 3)[2022] ICQ 21

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kelsey v Logan City Council & Ors (No 3) [2022] ICQ 021

PARTIES:

SHARON RAE MARIE KELSEY

(appellant)

v

LOGAN CITY COUNCIL

(first respondent)

TIMOTHY LUKE SMITH

(second respondent)

CHERIE MARIE DALLEY

(third respondent)

RUSSELL BRUCE LUTTON

(fourth respondent)

STEPHEN FREDERICK SWENSON

(fifth respondent)

LAURENCE WILLIAM SMITH

(sixth respondent)

PHILIP WAYNE PIDGEON

(seventh respondent)

TREVINA DALE SCHWARZ

(eighth respondent)

JENNIFER RACHEL JULIE BREENE

(ninth respondent)

FILE NO/S:

C/2021/8

PROCEEDING:

Appeal

DELIVERED ON:

14 July 2022

HEARING DATE:

Application for costs considered on written submissions

MEMBER:

Davis J, President

ORDER:

The appellant pay each of the first and third to ninth respondents’ costs of the appeal, including the costs of the application to amend the application to appeal, reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – COSTS – where the appellant made allegations against the second respondent – where the first respondent terminated the appellant’s employment – where the third to ninth respondents passed the resolution of the first respondent terminating the appellant’s employment with the first respondent – where the appellant alleged that the third to ninth respondents were motivated by reprisal for her complaint against the second respondent – where the appellant brought an application claiming relief for adverse action and reprisal for public interest disclosure – where the claim failed in the Queensland Industrial Relations Commission (QIRC) – where the QIRC found that the respondents were not improperly motivated when terminating the appellant’s employment – where the right of appeal is only on errors of law or jurisdiction – where an appellant can appeal on other grounds only by leave – where the appellant filed a notice of appeal which did not identify grounds of appeal – where the appellant made application to amend the notice of appeal – where that application failed – where it was held that there were no grounds of appeal with reasonable prospects identified – where it was held that even if a reasonably arguable ground was found, the discretion would be exercised against amendment – where the respondents sought their costs of the appeal against the appellant – where costs do not follow the event as a usual rule – whether the appeal was made vexatiously – whether the appeal was made without reasonable cause – whether it ought to have been reasonably apparent to the appellant that the appeal had no reasonable prospect of success – whether the discretion to award costs against the appellant has arisen – whether the discretion to award costs against the appellant ought to be exercised

Industrial Relations Act 2016, s 545, s 557, s 564, s 565

Industrial Relations (Tribunals) Rules 2011, r 70

CASES:

Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 384 ALR 340, followed

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, followed

Kelsey v Logan City Council & Anor [2018] QIRC 009, related

Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114, related

Kelsey v Logan City Council & Ors [2021] ICQ 011, related

Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013, related

Lohe v Sargent [2001] QSC 386, cited

Mathews v Cooper & Ors [2017] QCA 322, cited

Mbuzi v Griffith University (2014) 146 ALD 543, cited

MIM Holdings Ltd v AMWU (2000) 164 QGIG 370, followed

Oshlack v Richmond River Council (1998) 193 CLR 72, cited

Re Cameron [1996] 2 Qd R 218, followed

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35, cited

COUNSEL:

PM Zielinski of Counsel made written submissions for the appellant

The solicitors for the first respondent made written submissions

The solicitors for the third to ninth respondents made written submissions

SOLICITORS:

Xenophon Davis Solicitors for the appellant

King & Company Solicitors for the first respondent

McInnes Wilson Lawyers for the third to ninth respondents

  1. [1]
    On 6 May 2022, I dismissed the appellant’s (Ms Kelsey) application to amend her application to appeal a decision made against her by O'Connor VP sitting in the Queensland Industrial Relations Commission (QIRC).[1]  In these reasons, I shall refer to my judgment dismissing Ms Kelsey’s application to amend as “the primary decision”. 
  2. [2]
    When making the primary decision, I made the following orders as to costs:

“2. Any respondent seeking costs to file and serve a written submission by 13 May 2022.

  1. The applicant[2] shall file and serve any submissions in defence of the costs application by 27 May 2022.
  1. Any respondent may file any reply submission on costs by 3 June 2022.
  1. All parties have liberty to apply for leave to make oral submissions on costs by filing an application on or before 17 June 2022.
  1. 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.”[3]
  1. [3]
    The parties have filed written submissions on costs and no application has been made by any party for leave to make oral submissions. 
  2. [4]
    The primary decision effectively disposed of the appeal.  The parties’ submissions address not only the costs of the application to amend the application to appeal, but also the costs of the appeal generally.  These orders dispose of all costs issues.

Background

  1. [5]
    The facts giving rise to Ms Kelsey’s claims against the various respondents are examined in detail in the primary judgment[4] and in the judgment in the QIRC[5] and there is no need to repeat that detailed analysis.
  2. [6]
    In short, Ms Kelsey was employed in 2017 as the Chief Executive Officer (CEO) of the first respondent, the Logan City Council (the Council).  A condition of Ms Kelsey’s employment was that she was placed on a probationary period.  Before the probationary period expired, she met with the third respondent (Cr Dalley) and the eighth respondent (Cr Schwarz) representing the Council.  Councillors Dalley and Schwarz expressed concerns about Ms Kelsey’s performance as CEO.
  3. [7]
    Two days after the meeting, Ms Kelsey made allegations against the second respondent, Mayor Smith.  A vote on whether Ms Kelsey’s employment should continue was had by the Council on 7 February 2018, although by that stage Mayor Smith had been enjoined against voting on any resolution concerning Ms Kelsey’s employment.[6]
  4. [8]
    The third to ninth respondents all voted in favour of terminating Ms Kelsey’s employment and those votes were sufficient to carry a resolution dismissing her.
  5. [9]
    Ms Kelsey then commenced proceedings against the Council, Mayor Smith and the third to ninth respondents, being those who voted in favour of her dismissal.
  6. [10]
    It is unnecessary to examine Ms Kelsey’s claims.  That is done in the other judgments.  Broadly speaking, she alleged that her sacking was procured by Mayor Smith and actioned by the third to ninth respondents as an act of reprisal against her complaints made about Mayor Smith.
  7. [11]
    A 23 day trial in the QIRC resulted in the dismissal of all Ms Kelsey’s claims against all the respondents.  That judgment was delivered on 1 April 2021.[7]
  8. [12]
    Central to Ms Kelsey’s claims was an allegation that the third to ninth respondents were actuated by a prohibited reason, namely reprisal for the complaints against Mayor Smith.  Whatever legal subtleties there were to her case, Ms Kelsey could only succeed against any particular respondent if she proved that motivation against that respondent.
  9. [13]
    At the trial in the QIRC, the appellant gave evidence as did each of the second to ninth respondents, and other witnesses.  The respondents gave evidence that they were not motivated by any prohibited reason to cause the termination of Ms Kelsey’s employment.  They said that they were motivated by performance issues which had arisen.
  10. [14]
    The QIRC:
  1. found Ms Kelsey an unimpressive witness and rejected her evidence;
  2. found the respondents credible and accepted their evidence;
  3. did not accept Ms Kelsey’s case that her employment was terminated for a prohibited reason.
  1. [15]
    As already observed, the QIRC’s judgment was given on 1 April 2021.  By s 564 of the Industrial Relations Act 2016 (the IR Act), any appeal from the QIRC to this Court must be lodged within 21 days after judgment is given.
  2. [16]
    On 21 April 2021, Ms Kelsey filed a document styled “Application to appeal”.  It contained no grounds.  It was designed to preserve Ms Kelsey’s position until she could consider whether or not to mount a challenge to the judgment.
  3. [17]
    As the appeal was obviously non-compliant, I listed the matter for mention on 14 May 2021. 
  4. [18]
    On 13 May 2021, Mayor Smith filed an application to strike out the appeal.  On 14 May 2021, I made the following orders:

“1. By 4pm on 11 June 2021, the Applicant file and serve any application to regularise the appeal together with any material in support including a draft compliant notice of appeal

  1. By 4pm on 25 June 2021, the First to Ninth Respondents file and serve any material in reply to any application filed by the Applicant
  1. By 4pm on 9 July 2021, the Applicant file and serve an outline of submissions on the question of leave being granted to the Applicant to file an amended notice of appeal
  1. By 4pm on 23 July 2021, the First to Ninth Respondents file and serve outlines of submissions on the question of leave being granted to the Applicant to file an amended notice of appeal
  1. The application to regularise the appeal be listed for hearing on 25 August 2021
  1. The application brought by the Second Respondent to strike out the notice of appeal is adjourned for hearing on 25 August 2021
  1. The costs of the appearance today are reserved”
  1. [19]
    Ms Kelsey did not comply with the directions, but filed and served the following documents on 18 June 2021:
    1. (a)
      Form 4 - application in existing proceeding, seeking the substitution of the previously filed notice of appeal, and the discontinuance of the appeal as against the second respondent;
    2. (b)
      Form 5 - Notice of appeal, attaching grounds of appeal and orders sought as part of the appeal, together with a parties list;
    3. (c)
      Affidavit of Sharon Rae Marie Kelsey dated 18 June 2021; and
    4. (d)
      Affidavit of Daniel Charles Williams dated 18 June 2021.
  2. [20]
    The affidavits of Ms Kelsey and Mr Williams deposed to the circumstances surrounding the filing of the non-compliant application to appeal.  Those affidavits are examined in the primary decision[8] and further analysis is not warranted.
  3. [21]
    As Ms Kelsey had abandoned her appeal against Mayor Smith, the appeal against him was dismissed on 22 June 2021.  On 21 July 2021, I ordered Ms Kelsey to pay Mayor Smith’s costs of the appeal.[9]
  4. [22]
    Ms Kelsey, by her application to amend, produced a document which contained “grounds of appeal” which, over 27 paragraphs, identified six grounds of appeal.  Those grounds were:

“Evidence relevant to assessing reasons actuating dismissal vote[10]

  1. 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).

Accessorial liability[11]

  1. 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[12]

  1. [Paragraphs 3-10 alleged various failures to give adequate reasons.]

Meaning of ‘industrial law’[13]

  1. Erred in finding that the PID 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[14]

  1. Erred in the application of the rule in Browne v Dunn (1893) 6 R 67, HL 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[15]

To the extent that they relate to alleged errors of fact, the applicant seeks leave, under s 557(2) of the IR Act, to appeal the decision below on the bases that the Vice President [made various factual errors set out in paragraphs 13-27].”

  1. [23]
    An appeal based on an error of fact could only be mounted by leave.[16]  By s 565 of the IR Act, leave may only be given if “it is in the public interest to do so”.  In the grounds of appeal document, Ms Kelsey sought leave to mount her appeal on factual errors and described the public interest consideration as:

“Public interest consideration

  1. 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:
  1. (a)
    the relevant factual errors, if made out, manifest an injustice because they were, in combination, critical to the disposition of the proceeding; and
  1. (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.”
  1. [24]
    In the primary judgment, I found that there were no real prospects of Ms Kelsey obtaining leave to raise grounds of appeal based other than on errors of law.[17]  Therefore, ground 6 had no prospects of success and grounds 2 and 4 became irrelevant.[18]  I found that there were no real prospects of grounds 1, 3 and 5 being successful.[19]  I concluded that even if there was a basis upon which a ground might have reasonable prospects of success, given Ms Kelsey’s conduct, I would exercise the discretion against allowing amendment.[20]

Statutory provisions/principles

  1. [25]
    Section 545 of the IR Act provides as follows:

“545 General power to award costs

  1. (1)
    A person must bear the person’s own costs in relation to a proceeding before the court or commission.
  1. (2)
    However, the court or commission may, on application by a party to the proceeding, order—
  1. (a)
    a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied—
  1. (i)
    the party made the application or responded to the application vexatiously or without reasonable cause; or
  1. (ii)
    it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or …”
  1. [26]
    Section 545 of the IR Act displaces what might be described as the “usual rule” that costs follow the event.[21]  As I observed in Kelsey v Logan City Council & Ors:[22]

“[25] Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:

  1. (a)
    The starting point is that each party bears their own costs.[23]
  1. (b)
    A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.[24]
  1. (c)
    The assessment of ‘reasonable cause’ in s 545(2)(a)(i) is:
  1. (i)
    an objective assessment;[25] and
  1. (ii)
    made considering the facts existing as at the time of the institution of the proceedings, here the appeal.[26]
  1. (d)
    Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.”[27]
  1. [27]
    As to the quantum of costs, the Industrial Relations (Tribunals) Rules 2011 (the Rules) provide, relevantly:

“70 Costs

  1. (1)
    This rule applies if the court or commission makes an order for costs under section 545 of the Act.
  1. (2)
    The court or commission, in making the order, may have regard to—
  1. (a)
    for a proceeding before the commission—the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 2; or
  1. (b)
    for a proceeding before the court or the full bench—the costs payable on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, schedule 1; or
  1. (c)
    any other relevant factor.
  1. (3)
    The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.”
  1. [28]
    There are three jurisdictional facts identified in s 545(2)(a), namely:
  1. the proceeding was made vexatiously;[28]
  2. the proceeding was made without reasonable cause;[29] and
  3. it would have been reasonably apparent that the proceeding had no reasonable prospect of success.[30]
  1. [29]
    What is or is not “vexatious” may depend upon statutory context.  This was recognised in Re Cameron[31] which concerned a proceeding for a declaration that a person was a vexatious litigant for the purposes of the Vexatious Litigants Act 1981.  There, Fitzgerald P observed:

“It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 66 ALJR 810; Jones v Cusack (1992) 66 ALJR 815, and Attorney-General (NSW) v West (NSW Common Law Division No 16208 of 1992, 19 November 1992, unreported).”[32]

  1. [30]
    As to the term “without reasonable cause”, Wilcox J, in an often-cited passage in Kanan v Australian Postal and Telecommunications Union,[33] observed:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.”[34]

Contentions of the parties

  1. [31]
    The first respondent submits that the discretion to award costs against Ms Kelsey arises because:
  1. the application to appeal was filed “without reasonable cause” thus satisfying the jurisdictional fact within the second limb of s 545(2)(a)(i) of the IR Act;[35]
  2. the application to amend the application to appeal was filed in circumstances where it ought to have been reasonably apparent to Ms Kelsey that the application had no reasonable prospects of success and therefore establishing the jurisdictional fact identified in s 545(2)(a)(ii) of the IR Act.
  1. [32]
    As to the exercise of discretion being exercised in favour of the first respondent, the first respondent submitted:

“a. no attempt by the Applicant to comply with Rules 139 or 140 of the Rules;[36]

b. the Applicant’s unsatisfactory explanation for filing a non-compliant Application to Appeal;[37]

c. no evidence of any steps having been taken by the Applicant between 10 June 2020 and 1 April 2021 to secure legal representation in the event of an appeal being considered;[38]

d. the ongoing uncertainty which attached to Applicant’s pursuit of her Application to Appeal (as proposed to be amended), namely that:

i. the Applicant required legal representation to prepare for, and attend, any substantive hearing of the Appeal should leave to amend her Application to Appeal be granted by the Court;

ii. the Applicant did not have the funds to secure such representation from any firm other than Minter Ellison; and

iii. there was no evidence before the Court that Minter Ellison would in fact provide such legal representation to the Applicant beyond the hearing of her Application seeking leave;[39]

e. the Applicant’s disregard for the processes of the Court, and the legitimate interests of the Respondents, broadly characterised as both ‘egregious’[40] and ‘contumelious’.”[41]

  1. [33]
    Therefore, the first respondent relies not so much upon the prospects or otherwise of the appeal sought ultimately to be advanced by Ms Kelsey, but rather on the circumstances which led to, and surrounding, the filing of the application to appeal.
  2. [34]
    The third to ninth respondents submit that the discretion to award costs against Ms Kelsey arises because:
  1. the application to appeal was filed vexatiously, without reasonable cause and in circumstances where it would be readily apparent to Ms Kelsey that the appeal had no reasonable prospects, thus establishing all three jurisdictional facts identified by s 545(2)(a);
  2. the continuation of the appeal proceedings by filing and prosecuting the application to amend the application to appeal was without reasonable cause and in circumstances where it would be reasonably apparent to Ms Kelsey that the appeal, as then articulated, had no reasonable prospects, thus proving the jurisdictional fact identified in the second limb of s 545(2)(a)(i) and the jurisdictional fact identified in s 545(2)(a)(ii).
  1. [35]
    On the question of the exercise of the discretion, the third to ninth respondents rely upon paragraphs [124]-[127] of the primary judgment[42] which are:

“[124] 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.

[125] As she has no reasonable grounds of success on the appeal, the application should be dismissed.

[126] 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.

[127] 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.”

  1. [36]
    Ms Kelsey submits that when assessing reasonable prospects of success, it is an error to look at the circumstances of the filing of the application to appeal in isolation.  She submits that what ought to be assessed are the grounds of appeal as they were articulated upon the application to amend the application to appeal.  She submits that the grounds were fairly arguable and the fact that ultimately they were summarily dismissed does not mean that the application was made “without reasonable cause” or that it ought to have been reasonably apparent to Ms Kelsey that there were no reasonable prospects of success of the appeal.
  2. [37]
    If the discretion arises, Ms Kelsey submits that consistently with the policy underlying sections such as 545 of the IR Act, the discretion to award costs ought not be exercised against her.  She relies upon the judgment of White J[43] in Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd[44] where it was said:

“[103]  The evident legislative policy is that persons who seek by legal proceedings to vindicate rights or to obtain relief under the FW Act[45] should be able to do so without exposing themselves to the risk of having to pay the costs of another party in the event that they are unsuccessful. So much was made express by the Minister in the Second Reading Speech for the introduction of s 197A into the Conciliation and Arbitration Act in 1973:

This is part of our policy of bringing the courts to the people, of overcoming the deterrent which often prevents a person from seeking to right a wrong because of the burden of costs he might incur where his argument has failed to carry the day ... The possibility of having costs awarded against an applicant discourages the use of the courts as a means of settling disputes.

…

[107] It is important not to lose sight of legislative policy which underpins s 570. This can easily occur if one characterises it as being no more than a statutory fetter on the making of the usual order for costs. It is that, but it also reflects an attempt to address the underlying inequality of position commonly experienced by applicants in litigation for the enforcement of industrial entitlements.”

Consideration

  1. [38]
    Ms Kelsey filed the application to appeal in flagrant disregard of the requirements of the Rules.  It is evident from the application to appeal itself that Ms Kelsey knew:
  1. she was required to file an application to appeal within 21 days of judgment if she wished to appeal;
  2. the application must state grounds of appeal;
  3. the documents she filed did not state grounds.
  1. [39]
    Further, Ms Kelsey filed the application to appeal and therefore involved the respondents in further litigation with no firm intention or ability to prosecute it.  Her continuation of the appeal depended upon her obtaining legal representation and identifying grounds upon which to appeal.[46]
  2. [40]
    In my view, the appeal was arguably commenced vexatiously but it is unnecessary to decide the point. 
  3. [41]
    By the time the application to amend the application to appeal was filed, Ms Kelsey had:
  1. obtained legal assistance; and
  2. at least identified what she asserted were grounds of appeal.
  1. [42]
    It cannot be said that Ms Kelsey’s prosecution of the application to amend was done vexatiously.  However, Ms Kelsey never had reasonable cause to commence or prosecute the appeal. 
  2. [43]
    No reasonably arguable reason was ever identified upon which there could be any real prospect of leave being given under s 557(1)[47] to rely upon a ground of appeal other than error of law.  Given the limited nature of the appeal which Ms Kelsey could mount under s 557(1) of the IR Act, she faced insurmountable difficulties given the findings made by the QIRC adversely to her credit, favourably to the respondents’ credit and in particular as to the true motivations of the third to ninth respondents in voting in favour of her employment being terminated.
  3. [44]
    As previously explained, if, as is the case, there was no basis to attack those findings, other grounds of appeal fall.
  4. [45]
    All that was left was ground 1 which was an alleged misdirection as to how to assess the lawfulness of the respondents’ decision to vote for the termination of the applicant’s employment, ground 3, which alleged an inadequacy of reasons, and ground 5, which alleged error in the application of the rule in Browne v Dunn.  For the reasons explained in the primary judgment, none of these have substance.  None, in my view, gave reasonable cause to institute and prosecute the appeal.
  5. [46]
    There is no need to consider the jurisdictional fact identified by s 545(2)(a)(ii).  The jurisdiction to award costs has clearly arisen.
  6. [47]
    Even disregarding Ms Kelsey’s conduct in filing the application to appeal in the form that it was and, having regard to the policy behind s 545 of the IR Act, the respondents make a very strong claim for an exercise of discretion in their favour.  While Ms Kelsey’s application in the QIRC faced some legal hurdles, the central factual question was, and was always going to be, as to the motivation of the third to ninth respondents in voting for the termination of her employment.  That was extensively litigated.  She lost on that critical factual issue.
  7. [48]
    Ms Kelsey’s appeal as finally framed was bound to fail as there was no basis upon which to upset the critical findings against her.  Notwithstanding those insurmountable obstacles, Ms Kelsey proceeded and put the respondents to what is obviously very considerable expense.
  8. [49]
    In my view, Ms Kelsey ought pay the costs of the respondents of the application and the appeal, including reserved costs and the costs of determining the costs question.
  9. [50]
    Ms Kelsey did not suggest that she ought not pay reserved costs if she was ordered to pay the costs of the appeal.

Orders

  1. [51]
    It is ordered that:

The appellant pay each of the first and third to ninth respondents’ costs of the appeal, including the costs of the application to amend the application to appeal, reserved costs and the costs of the written submissions on costs, all on the standard basis calculated on the scale of costs of the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, Schedule 1.

Footnotes

[1]The Vice President’s decision is Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114; the decision refusing leave to amend the application to appeal is Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013.

[2]Being the appellant in the appeal.

[3]Order 1 dismissed the application.

[4]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013.

[5]Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114.

[6]Kelsey v Logan City Council & Anor [2018] QIRC 009.

[7]Kelsey v Logan City Council & Ors (No 8) [2021] QIRC 114.

[8]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013, paragraphs [49]-[63].

[9]Kelsey v Logan City Council & Ors [2021] ICQ 011.

[10]Ground 1.

[11]Ground 2.

[12]Ground 3.

[13]Ground 4.

[14]Ground 5.

[15]Ground 6.

[16]Industrial Relations Act 2016, s 557(1) and (2).

[17]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 13 at [67]-[83].

[18]At [88] and [89]-[91].

[19]At [94]-[97], [98]-[116] and [117]-[122].

[20]At [126].

[21]Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [97].

[22][2021] ICQ 011.

[23]Section 545(1).

[24]See the opening words of s 545(2).

[25]Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35 at [12]-[14] and MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370.

[26]Kanan v Australian Postal and Telecommunications Union [1992] FCA 539.

[27]Maher v Isaac Regional Council [2020] QIRC 191 from [59].

[28]Section 545(2)(a)(i).

[29]Section 545(2)(a)(i).

[30]Section 545(2)(a)(ii).

[31][1996] 2 Qd R 218.

[32]At 220; consistently followed Lohe v Sargent [2001] QSC 386 at [42], Mbuzi v Griffith University (2014) 146 ALD 543, Mathews v Cooper & Ors [2017] QCA 322 at [8].

[33](1992) 43 IR 257

[34]At 264-265.

[35]The phrase “vexatiously or without reasonable cause” is to be read disjunctively so as to create two separate jurisdictional facts:  MIM Holdings Ltd v AMWU (2000) 164 QGIG 370.

[36]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013 at paragraph 38.

[37]Ibid at paragraph 60.

[38]Ibid at paragraph 54.

[39]Ibid at paragraphs 55 to 57.

[40]Ibid at paragraph 63.

[41]Ibid at paragraph 126.

[42]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013.

[43]With whom Allsop CJ and Middleton J agreed.

[44](2020) 384 ALR 340.

[45]Fair Work Act 2009 (Cth).

[46]Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013 at [52]-[57], [61].

[47]Given s 565.

Close

Editorial Notes

  • Published Case Name:

    Kelsey v Logan City Council & Ors (No 3)

  • Shortened Case Name:

    Kelsey v Logan City Council (No 3)

  • MNC:

    [2022] ICQ 21

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    14 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] ICQ 1306 May 2022-
Primary Judgment[2022] ICQ 2114 Jul 2022-
Notice of Appeal FiledFile Number: CA6166/2226 May 2022-
Notice of Appeal FiledFile Number: CA9189/2204 Aug 2022-
Appeal Determined (QCA)[2022] QCA 23825 Nov 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Wentworth (1988) 14 N.S.W.L.R 481
1 citation
Jump To
Cite 1 - (1988) 14 N.S.W.L.R 481
Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd (2020) 384 ALR 340
2 citations
Jump To
Cite 1 - (2020) 384 ALR 340
Cite 2 - (2020) 384 ALR 340
Browne v Dunn (1893) 6 R 67
1 citation
Jump To
Cite 1 - (1893) 6 R 67
Jones v Cusack (1992) 66 ALJR 815
1 citation
Jump To
Cite 1 - (1992) 66 ALJR 815
Jones v Skyring (1992) 66 ALJR 810
1 citation
Jump To
Cite 1 - (1992) 66 ALJR 810
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
3 citations
Jump To
Cite 1 - (1992) 43 IR 257
Cite 2 - (1992) 43 IR 257
Cite 3 - (1992) 43 IR 257
Kanan v Australian Postal and Telecommunications Union [1992] FCA 539
1 citation
Jump To
Cite 1 - [1992] FCA 539
Kelsey v Logan City Council [2021] ICQ 11
3 citations
Jump To
Cite 1 - [2021] ICQ 11
Cite 2 - [2021] ICQ 11
Cite 3 - [2021] ICQ 11
Kelsey v Logan City Council (No 2) [2022] ICQ 13
13 citations
Jump To
Cite 1 - [2022] ICQ 13
Cite 2 - [2022] ICQ 13
Cite 3 - [2022] ICQ 13
Cite 4 - [2022] ICQ 13
Cite 5 - [2022] ICQ 13
Cite 6 - [2022] ICQ 13
Cite 7 - [2022] ICQ 13
Cite 8 - [2022] ICQ 13
Cite 9 - [2022] ICQ 13
Cite 10 - [2022] ICQ 13
Cite 11 - [2022] ICQ 13
Cite 12 - [2022] ICQ 13
Cite 13 - [2022] ICQ 13
Kelsey v Logan City Council (No.8) [2021] QIRC 114
4 citations
Jump To
Cite 1 - [2021] QIRC 114
Cite 2 - [2021] QIRC 114
Cite 3 - [2021] QIRC 114
Cite 4 - [2021] QIRC 114
Kelsey v Logan City Council and Another [2018] QIRC 9
2 citations
Jump To
Cite 1 - [2018] QIRC 9
Cite 2 - [2018] QIRC 9
Lohe v Sargent [2001] QSC 386
2 citations
Jump To
Cite 1 - [2001] QSC 386
Cite 2 - [2001] QSC 386
Maher v Isaac Regional Council [2020] QIRC 191
1 citation
Jump To
Cite 1 - [2020] QIRC 191
Mathews v Cooper [2017] QCA 322
2 citations
Jump To
Cite 1 - [2017] QCA 322
Cite 2 - [2017] QCA 322
Mbuzi v Griffith University (2014) 146 ALD 543
2 citations
Jump To
Cite 1 - (2014) 146 ALD 543
Cite 2 - (2014) 146 ALD 543
MIM Holdings Ltd v AMWU (2000) 164 QGIG 370
3 citations
Jump To
Cite 1 - (2000) 164 QGIG 370
Cite 2 - (2000) 164 QGIG 370
Cite 3 - (2000) 164 QGIG 370
Oshlack v Richmond River Council (1998) 193 CLR 72
2 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Re Cameron [1996] 2 Qd R 218
3 citations
Jump To
Cite 1 - [1996] 2 Qd R 218
Cite 2 - [1996] 2 Qd R 218
Cite 3 - [1996] 2 Qd R 218
Wanninayake v Queensland [2015] ICQ 35
2 citations
Jump To
Cite 1 - [2015] ICQ 35
Cite 2 - [2015] ICQ 35

Cases Citing

Case NameFull CitationFrequency
Kelsey v Logan City Council (No. 4) [2023] ICQ 232 citations
Kelsey v Logan City Council (No. 5) [2024] ICQ 152 citations
Kelsey v Logan City Council (No. 6) [2025] ICQ 22 citations
Nicholson v Carborough Downs Coal Management Pty Ltd (No 2) [2023] ICQ 32 citations
1

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