Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. ICQ
  3. 2023
  4. Kelsey v Logan City Council (No. 4) - [2023] ICQ 23

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Kelsey v Logan City Council (No. 4)[2023] ICQ 23

Kelsey v Logan City Council (No. 4)[2023] ICQ 23

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kelsey v Logan City Council & Ors (No. 4) [2023] ICQ 23

PARTIES:

SHARON RAE MARIE KELSEY

(Appellant)

v

LOGAN CITY COUNCIL

(First Respondent)

CHERIE MARIE DALLEY

(Third Respondent)

RUSSELL BRUCE LUTTON

(Fourth Respondent)

STEPHEN FREDERICK SWENSON

(Fifth Respondent)

LAURENCE WILLIAM SMITH

(Sixth Respondent)

PHILIP WAYNE PIDGEON

(Seventh Respondent)

TREVINA DALE SCHWARZ

(Eighth Respondent)

JENNIFER RACHEL JULIE BREENE

(Ninth Respondent)

CASE NO:

C/2021/8

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

6 October 2023

HEARING DATE:

19 September 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

  1. The Appellant's application in existing proceedings filed on 15 August 2023 ('the Appellant's application') is dismissed.
  1. The First Respondent's costs of the Appellant's application are reserved.
  1. The Third to Ninth Respondents' costs of the Appellant's application are reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – Appellant employed as the Chief Executive Officer of the First Respondent – Appellant dismissed due to decision of the Third to Ninth Respondents who were Councillors of the First Respondent – Appellant applied to the Queensland Industrial Relations Commission for various orders including reinstatement, injunctive and declaratory relief – Appellant alleged her dismissal was in contravention of s 285 of the Industrial Relations Act 2016 because she had exercised workplace rights within the meaning of s 284 of the Industrial Relations Act 2016 – Appellant further alleged her dismissal was in contravention of  s 40 of the Public Interest Disclosure Act 2010 on the basis that she had made a Public Interest Disclosure to the First Respondent and to others – in the course of hearing and determining the Appellant's application, three suppression orders were made by the Commission withholding from release, search or publication, certain evidence before the Commission – Appellant's application to the Commission dismissed – Appellant appealed to the Industrial Court of Queensland against the decision of the Commission and seeks leave to amend the grounds of appeal – by application in existing proceedings, the Appellant applied to the Court to vacate the suppression orders made by the Commission – whether the Court, in hearing an appeal against the decision of the Commission and in considering whether to grant leave to amend the Appellant's grounds of appeal,  has power to vacate the suppression orders made by the Commission – no power of the Court to vacate the suppression orders made by the Commission – Appellant's application in existing proceedings dismissed – Respondents' costs of the Appellant's application in existing proceedings reserved

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 1990, s 32

Industrial Relations Act 2016, s 284, s 285, s 407, s 424, s 541, s 542, s 543, s 544, s 557, s 558, s 567 and s 580

Public Interest Disclosure Act 2010, s 40 and s 55

CASES:

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Jackson v Sterling Industries Ltd [1987] HCA 23: (1987) 162 CLR 612

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

Kelsey v Logan City Council & Ors (No. 9) [2022] QIRC 342

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

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

Kelsey v Logan City Council & Ors [2022] QCA 238

Kelvin Noel Appo v Q-COMP (No. 3)  [2004] ICQ 48; (2004) 176 QGIG 586

Re Brenda Atkinson [2001] ICQ 30; (2001) 167 QGIG 182

SZTAL v Minister for Immigration and Border Protection, [2017] HCA 34; (2017) 262 CLR 362

COUNSEL:

Mr P. Zielinski for the Appellant.

Mr A. Herbert for the First Respondent.

Mr W. Friend KC with Mr C. Massy for the Third to Ninth Respondents.

SOLICITORS:

Xenophon Davis for the Appellant

King & Company Solicitors for the First Respondent

McInnes Wilson Lawyers for the Third to Ninth Respondents

Introduction

  1. [1]
    The Appellant, Ms Kelsey, was employed as the Chief Executive Officer of the Logan City Council. Ms Kelsey commenced employment in that position on 2 June 2017.[1] At that time, Mr Timothy Smith was the Mayor of the Council ('Mr Smith').[2]
  1. [2]
    On 10 October 2017, a performance review meeting concerning Ms Kelsey was held between her, two Councillors and Mr Smith.[3] On 12 October 2017, Ms Kelsey made a Public Interest Disclosure ('the PID') to the Council, the Minister for Local Government and to the Crime and Corruption Commission alleging possible misconduct by Mr Smith.[4]
  1. [3]
    On 1 December 2017, Ms Kelsey commenced a proceeding in the Queensland Industrial Relations Commission by filing an application seeking various orders concerning her continued employment.[5]
  1. [4]
    At that time, the Third to Ninth Respondents were Councillors ('the Councillors'). On 7 February 2018, the Councillors carried a motion to terminate Ms Kelsey's employment. Ms Kelsey's employment was brought to an end by the giving of two weeks' notice.[6]
  1. [5]
    Ultimately, Ms Kelsey sought final relief from the Commission in the form of an order for her reinstatement and for certain injunctive and declaratory relief.[7] The Respondents before the Commission were the Council, Mr Smith and the Councillors. Ms Kelsey alleged that her employment was terminated for reasons that amounted to a contravention of s 285 of the Industrial Relations Act 2016 ('the IR Act'). Ms Kelsey also alleged that the termination of her employment contravened s 40 of the Public Interest Disclosure Act 2010 ('the PID Act').[8]
  1. [6]
    There have been a number of interlocutory decisions and orders made by the Commission during the course of Ms Kelsey's proceeding. Relevantly, for the present purposes, they include:
  • by Order dated 27 March 2018, Industrial Commissioner Fisher ordered that, pursuant to s 55 of the PID Act and s 580(5) of the IR Act, certain evidence be withheld from release or search or not be published, including the names of any employees of the Council mentioned in the PID ('Industrial Commissioner Fisher's Order');
  • by Order dated 16 April 2018, Industrial Commissioner Thompson made an order, by consent, which was in the same terms as Industrial Commissioner Fisher's Order and contained further orders regarding the redacting of filed and served material ('Industrial Commissioner Thompson's Order'); and
  • by Order dated 17 December 2018, the Vice President amended Industrial Commissioner Thompson's Order by inserting a new paragraph, namely, that no person shall publish in any public place or forum, whether in print or electronically, any description of the content of the public interest disclosure under the PID Act  (collectively, 'the Suppression Orders').
  1. [7]
    Ms Kelsey's claim for final relief was heard by the Vice President. By decision dated 1  April 2021, his Honour ordered that Ms Kelsey's application be dismissed ('the Primary Decision').[9]  By further decision dated 30 August 2022, his Honour ordered that each party bear their own costs in relation to the proceeding before the Commission ('the Costs Decision').[10]
  1. [8]
    For reasons that are explained below, over three days commencing on 25 October 2023, sitting as the Industrial Court of Queensland ('the Court'), I will, by agreement between the parties, hear the application by Ms Kelsey to amend the application she made to appeal against the Primary Decision and I will also hear Ms Kelsey's substantive appeal against the Primary Decision ('Ms Kelsey's appellate proceeding').[11]
  1. [9]
    By application in existing proceedings filed on 15 August 2023, Ms Kelsey sought two outcomes, namely:
  • that certain additional evidence be heard by the Court in determining her appellate proceeding; and
  • that the Suppression Orders be vacated ('Ms Kelsey's present application').
  1. [10]
    When I heard Ms Kelsey's present application, she only pressed the application to vacate the Suppression Orders. The Council opposes the application to vacate the Suppression Orders. The Councillors did not wish to be heard on that application.
  1. [11]
    The questions for my determination are:
  • does the Court, in the present circumstances, have the power to vacate the Suppression Orders? and
  • if the Court does have the power to vacate the Suppression Orders, should it do so?
  1. [12]
    For the reasons that follow:
  • the Court does not, in the present circumstances, have the power to vacate the Suppression Orders; and
  • as a consequence, it becomes unnecessary to consider the arguments by the parties as to whether or not the Suppression Orders should be vacated.

The events leading to Ms Kelsey's present application to the Court

  1. [13]
    Following the Primary Decision and the Costs Decision:
  • by order of the President of the Court dated 6 May 2022, Ms Kelsey's application for leave to amend her earlier application to appeal against the Primary Decision ('Ms Kelsey's appeal amendment application') was dismissed;[12]
  • by further order of the President of the Court dated 14 July 2022, Ms Kelsey was ordered to pay the Council's and the Councillors' costs of the proceedings before the Court;[13] and
  • by orders of the Court of Appeal dated 25 November 2022, Ms Kelsey's appeals against the orders of the Court were allowed and Ms Kelsey's appeal amendment application was remitted to this Court to be considered by me.[14]
  1. [14]
    The parties subsequently proposed directions for the purposes of hearing together, over a three day period, Ms Kelsey's appellate proceeding.
  1. [15]
    By Directions Orders dated 16 December 2022 and 9 March 2023, I made Orders in conformity with those directions as proposed by the parties. Ms Kelsey's appellate proceeding will be heard by me on 25, 26 and 27 October 2023.
  1. [16]
    By her appeal amendment application, Ms Kelsey seeks to substitute her original application to appeal against the Primary decision with a proposed application to appeal which contains 27 grounds of appeal.[15] By those grounds of appeal, Ms Kelsey alleges that the Primary Decision is vitiated by certain errors of law. Ms Kelsey also seeks leave, pursuant to s 557(2) of the IR Act, to appeal against alleged errors of mixed law and fact.
  1. [17]
    The relief sought by Ms Kelsey, as proposed in her appeal amendment application, is that:
  • the Primary Decision is set aside;
  • declarations are made that the Council and the Councillors contravened the IR Act and the PID Act;
  • the Council reinstate her to her position as Chief Executive Officer;
  • the Council and the Councillors pay compensation to her in lieu of lost remuneration since the termination of her employment;
  • the Council maintains her continuity of service;
  • the Council and the Councillors pay exemplary damages to her, sufficient to compensate her for other loss including damage to reputation, distress, hurt and humiliation and additional expenses associated with her dismissal; and
  • the Council and the Councillors pay her costs of and incidental to the appeal before the Court and, as I understand it, her costs of and incidental to the proceedings before the Commission.

Does the Court, in the present circumstances, have the power to vacate the Suppression Orders?

  1. [18]
    In written submissions filed in support of her present application, Ms Kelsey submitted that:
  • various suppression orders were made in the course of her proceeding before the Commission which were intended to protect the identity of various employees of the Council;
  • the Suppression Orders '… technically remain in place'; and
  • having regard to the Primary Decision and the time that has passed, there is no utility in the Suppression Orders continuing and, to the extent that their continuance was an oversight, the Court should correct that matter.
  1. [19]
    In the course of argument, I asked Mr Zielinski of Counsel, who appeared for Ms Kelsey, to identify the relevant provisions of the IR Act or of the Industrial Relations (Tribunals) Rules 2011 that may confer power on the Court to vacate the Suppression Orders made by the Commission. It was submitted the Court had such power pursuant to s 424(2) or s 544(1)(a)(i) of the IR Act,[16] and also pursuant to s 541(a) of the IR Act.[17]
  1. [20]
    Chapter 11, pt 1 of the IR Act deals with the Court. Division 3 of that part deals with the jurisdiction and powers of the Court. That part contains s 424 which provides:

424  Jurisdiction and powers

  1. The court may–
  1. perform all functions and exercise all powers given to the court under this Act or another Act;  and
  1. hear and decide, and give its opinion on, a matter referred to it by the commission; and
  1. hear and decide an offence against this Act, unless this Act provides otherwise; and
  1. hear and decide appeals from an industrial magistrate’s decision in proceedings for–
  1. an offence against this Act; or
  1. recovery of damages, or other amounts, under this Act; and
  1. if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process –
  1. the commission and magistrates exercise their jurisdictions according to law; and
  1. the commission and magistrates do not exceed their jurisdictions.
  1. In proceedings, the court may–
  1. make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
  1. give directions about the hearing of a matter.
  1. The court’s jurisdiction is not limited, by implication, by a provision of this Act or another Act.
  1. The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.
  1. [21]
    Chapter 11, pt 5 of the IR Act is headed 'Proceedings'. Division 5 of that part is headed 'Decisions and enforcement' and contains s 541 and s 544.
  1. [22]
    Section 541 provides:

541  Decisions generally

The court or commission may, in an industrial cause do any of the following–

  1. make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers–
  1. the cause is trivial; or
  1. further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
  1. [23]
    Section 544 of the IR Act provides:

544  Decisions of court or commission

  1. In the exercise of its jurisdiction, the court or commission may–
  1. make the decisions it considers necessary–
  1. in the interests of justice in proceedings before it; and
  1. for the execution of another decision of the court or commission; and
  1. enforce its own decisions; and
  1. direct the issue of a writ or process; and
  1. impose and enforce a penalty allowed or prescribed by this Act or another Act in the same way a Supreme Court judgment is enforced.
  1. A decision of the court or commission must be made and enforced in the same way as a judgment or order of the Supreme Court.
  1. For subsection (2), the Uniform Civil Procedures Rules must be complied with to the extent reasonably possible, with the amendments the court or commission approves.
  1. The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court or Magistrates Courts (court officers) are taken to be officers of the court and commission for– 
  1. a decision, including the enforcement of a decision, of the court or commission; and
  1. imposing functions or conferring powers on court officers under the rules.
  1. [24]
    Mr Herbert of Counsel, who appeared for the Council, submitted that s 544 of the IR Act does not confer power on the Court to vacate the Suppression Orders because the powers conferred by that section can only be availed in the exercise of its jurisdiction and that Ms Kelsey has not identified any relevant jurisdiction other than that she seeks an order vacating the Suppression Orders.[18]
  1. [25]
    The Council further submitted that s 424 of the IR Act did not confer power on the Court to vacate the Suppression Orders. This was because the exercise of the power contained in that section needed to be germane to the proceedings properly before the Court, the Suppression Orders are orders of the Commission, not that of the Court, and no appeal has been made to the Court against the Suppression Orders.[19]
  1. [26]
    In my view, in the present circumstances, the Court has no power to vacate the Suppression Orders as sought by Ms Kelsey. There are four reasons for this.
  1. [27]
    First, in the absence of an express or implied power conferred on the Court to interfere with the Suppression Orders made by the Commission, the Court would only have power to interfere with the Suppression Orders:
  • if the Court was exercising its appellate jurisdiction in respect of the making of the Suppression Orders;[20] or
  • if the President was exercising the Court's supervisory jurisdiction to ensure, by prerogative order or other appropriate process, that the Commission exercised its jurisdiction according to law or that the Commission did not exceed its jurisdiction, in respect of the making of the Suppression Orders.[21]
  1. [28]
    The decision of this Court in Re Brenda Atkinson[22] supports this conclusion.
  1. [29]
    In that case, pursuant to s 32(2)(b) of the Industrial Relations Act 1990, the Minister for Justice and Attorney-General, Minister for Industrial Relations and Minister for the Arts, directed that the Commission hold an Inquiry, and then report to the Minister, into certain industrial matters relating to the cash-in-transit industry. In conducting the Inquiry, the Commission made orders restraining the publication and search of certain material that was placed before the Commission.[23]
  1. [30]
    The applicant was a by-stander during an attempted hold up of a Westpac Bank at Moorooka. The applicant was struck in the back by a bullet following a shot fired by one of two security guards or by one of the bandits. The applicant subsequently commenced a personal injuries claim in the Supreme Court of Queensland against the security company that supplied the security guards.[24] The applicant applied to the Court to vary the existing orders of the Commission, so as to allow her to search and take copies of evidence relating to the training of workers and safety practices and procedures in the cash-in-transit industry, and also of evidence relating to the incident, in which she was injured, which was also presented at the Inquiry.[25]
  1. [31]
    In dismissing the application, President Hall relevantly held:

It is asserted that to the extent that the existing orders of the Commission inhibit the process of searching and copying, this Court has the power to make all necessary variations to the orders to enable the process to be undertaken, and, in all the circumstances, should exercise that power. It is contended by each of the Crown in Right in the State of Queensland, Maine Nickless Armaguard, Brambles Australia Limited, and Chubb Security Services Pty Ltd that the Industrial Court of Queensland has no such power. The contention seems to me to be correct. Outside of an appeal under s. 341(1) and an application based on s. 248(1)(e), for what used to be described as prerogative relief, I can think of no section which authorises this Court to molest in any way an order made by the Queensland Industrial Relations Commission.

The submission is that the Queensland Industrial Court has inherent jurisdiction over documents in its possession. In my view it is settled that as a statutory tribunal the Industrial Court of Queensland has no inherent jurisdiction, see Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (1999) 161 QGIG 108 and WorkCover Queensland v Trevor Ernest Markwell (No. 2) (2001) 165 QGIG 351. It may be acknowledged that the grant of various statutory powers to a court of statutory creation carries with it, by implication, the power to do that which is incidental to the exercise of the power, see Jackson v Sterling Industries Limited (1987) 162 CLR 612 and NCSC v Bankers Trust Australia Limited (1989) 91 ALR 321. However, the implication of a power to alter orders of the Queensland Industrial Relations Commission is not necessary to give efficacy to the various powers vested in the Industrial Court of Queensland.

Section 339 is of no assistance to the applicant. Section 339(1) is a useful and convenient provision. The Industrial Relations (Tribunals) Rules 2000 are not all embracing. Because the tribunals referred to in s. 339(1) have no inherent jurisdiction, it is important that they be empowered to issue directions about procedure and practice to fill lacuna left by the rules in order that an industrial cause or a proposed industrial cause may be further progressed. Here, there is no industrial cause. Neither in the natural meaning of the expression “industrial cause” nor in the inclusive meaning at Schedule 5 to the Industrial Relations Act 1999 may the matter in the Supreme Court be characterised as an industrial cause. In any event, there is a world of difference between the Industrial Commission issuing a direction about practice and procedure to progress an industrial cause of which it is seized or is proposed to be seized, and the Industrial Court of Queensland issuing a direction about practice and procedure in an industrial cause which the Industrial Commission is seized or proposed to be seized. That is particularly so where, as here, an order has already been made by the Queensland Industrial Relations Commission. It would set at nought the carefully drawn limits at s. 341(1) and s. 248(1)(e) if an order formally made after full argument about confidentiality of evidence might be overborne by a direction of the Court.[26]

  1. [32]
    The same reasoning is determinative in the present circumstances.
  1. [33]
    The Court is a statutory court established by s 407 of the IR Act as a superior court of record. As such, the Court, principally by s 424 of the IR Act, is expressly given certain jurisdiction and powers.
  1. [34]
    The Court's jurisdiction is the authority the Court has to determine the range of matters that can be litigated before it.  In the exercise of that jurisdiction, the Court has the powers, expressly or impliedly conferred on it, by the legislation that governs it, which is a matter of statutory construction.[27] The Court also has such powers as are incidental and necessary to the exercise of the jurisdiction or power so conferred.[28]
  1. [35]
    By Ms Kelsey's appellate proceeding, she ultimately seeks an order from the Court, in respect of the Primary Decision, under s 558(1)(b) of the IR Act.[29] However, by her appellate proceeding, Ms Kelsey is not appealing against the Suppression Orders. Similarly, Ms Kelsey is not contending that the Commission acted in excess or in want of jurisdiction in making the Suppression Orders. Consequently, pursuant to s 558(1)(b) of the IR Act, there is no power for the Court, as presently constituted, to interfere with the Suppression Orders.
  1. [36]
    Secondly, I am not persuaded that the sections of the IR Act, cited by Ms Kelsey, confer express power on the Court to vacate the Suppression Orders. The consideration of this contention by Ms Kelsey concerns the construction of the provisions to which she referred.
  1. [37]
    In SZTAL v Minister for Immigration and Border Protection,[30] Kiefel CJ, Nettle and Gordon JJ summarised the modern approach to statutory construction:

14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[31]

  1. [38]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective) is to be preferred to any other interpretation.
  1. [39]
    Section 424(2)(a) of the IR Act is not a source of power, in the present circumstances, for the Court to vacate the Suppression Orders. Section 424(1) sets out the jurisdiction of the Court. Section 424(2) sets out certain powers of the Court in the exercise of its jurisdiction. In the present case, because there is no appeal by Ms Kelsey against the Suppression Orders, there is no decision the Court can make, in relation to the Suppression Orders, that it could consider appropriate as referred to in s 424(2)(a) of the IR Act. 
  1. [40]
    Clearly enough, the power to give '… directions about the hearing of a matter' contained in s 424(2)(b) of the IR Act concerns directions for the purposes of the orderly and efficient hearing of a matter that is before the Court. In my opinion, the power to make such a direction cannot extend to vacating the Suppression Orders when the Court is not exercising any jurisdiction concerning the Suppression Orders.
  1. [41]
    For the same reasons, s 541(a) of the IR Act is not a source of power for the Court to vacate the Suppression Orders. Assuming, without deciding, that Ms Kelsey's appellate proceeding is an 'industrial cause' within the meaning of the IR Act, because that proceeding does not concern the correctness of the Suppression Orders, then it cannot be the case that the Court's power to make a decision, '… it considers just… without being restricted to any specific relief claimed by the parties to the cause', is one that would encompass a power to vacate the Suppression Orders.
  1. [42]
    Section 544 is contained in ch 11, pt 5, div 5 of the IR Act. Section 541 is contained in the same division. As referred to earlier in these reasons, the heading to Division 5 is 'Decisions and enforcement.' Section 541 is set out earlier in these reasons. Section 542 deals with reserved decisions of the Court or Commission. Section 543 provides that decisions of the Commission must be in plain English. Section 544 of the IR Act is set out earlier in these reasons.
  1. [43]
    Having regard to the heading of Division 5, and to s 541, s 542, s 543 and s 544 of the IR Act, it is open to conclude that the power conferred on the Court by s 544(1)(a)(i), namely, that in the exercise of its jurisdiction, the Court '… may make the decisions it considers necessary in the interests of justice in proceedings before it', concerns the making of decisions about the execution of a decision made by the Court in the exercise of its jurisdiction. Such a construction is open given that s 544(1)(a)(ii) of the IR Act confers discretion on the Court to make the decisions it considers necessary '… for the execution of another decision of the court or commission.' The remaining sub-sections of s 544 of the IR Act may also support such a contention.
  1. [44]
    In any event, the Court's jurisdiction, as sought to be enlivened by Ms Kelsey in her appellate proceeding, does not concern the correctness of the Suppression Orders. The jurisdiction of the Court that Ms Kelsey seeks to enliven concerns the Primary Decision. For this reason, s 544(1)(a)(i) of the IR Act is not a source of power for the Court to interfere with the Suppression Orders.
  1. [45]
    Thirdly, I am not of the opinion that the Court is possessed of any implied power to vacate the Suppression Orders.
  1. [46]
    As stated by President Hall in Re Brenda Atkinson, the implication of a power to alter orders of the Commission is not necessary to give efficacy to the various powers vested in the Court. [32]
  1. [47]
    The implication of a power to vacate the Suppression Orders, made by the Commission in the course of Ms Kelsey's proceeding, is not necessary to give efficacy to the power vested in the Court by the IR Act sought to be enlivened by Ms Kelsey. By her appellate proceeding, Ms Kelsey is challenging the correctness of the Primary Decision. The Court can effectively deal with the question of whether Ms Kelsey should be allowed to amend her application to appeal and, if Ms Kelsey is allowed to amend her application to appeal, to deal with the question of whether the Primary Decision is vitiated by error, without the implication of a power to vacate the Suppression Orders.  That is, it is not incidental and necessary, in the exercise of the Court's jurisdiction to determine Ms Kelsey's appellate proceeding, for it to have such a power.
  1. [48]
    Fourthly, this Court, as a statutory court, has no inherent jurisdiction or inherent power that may be exercised to vacate the Suppression Orders as sought by Ms Kelsey.[33]
  1. [49]
    For these reasons, my opinion is that, in the present circumstances, the Court has no power to vacate the Suppression Orders.
  1. [50]
    As a consequence, it becomes unnecessary to consider the arguments by Ms Kelsey and the Council as to whether or not the Suppression Orders should be vacated.

Costs

  1. [51]
    As referred to earlier in these reasons, Ms Kelsey's present application also included an application to the Court to exercise its discretion, pursuant to s 567(2) of the IR Act, to hear additional evidence in Ms Kelsey's appellate proceeding. That aspect of Ms Kelsey's application was abandoned at the commencement of the hearing of her application. The Third to Ninth Respondents filed and served written submissions opposing that aspect of Ms Kelsey's application.
  1. [52]
    As a consequence, I acceded to an application made by the Third to Ninth Respondents to reserve the question of their costs in respect of Ms Kelsey's present application.[34]
  1. [53]
    Similarly, I reserved the issue of the First Respondent's costs in relation to its opposition to Ms Kelsey's present application.[35]

Conclusion

  1. [54]
    For the reasons given:
  • Ms Kelsey's application is dismissed;
  • the issue of the First Respondent's costs in respect of Ms Kelsey's present application is reserved; and
  • the issue of the Third to Ninth Respondents' costs in respect of Ms Kelsey's present application is reserved.

Orders

  1. [55]
    The Court makes the following orders:
  1. The Appellant's application in existing proceedings filed on 15 August 2023 ('the Appellant's application') is dismissed.
  1. The First Respondent's costs of the Appellant's application are reserved.
  1. The Third to Ninth Respondents' costs of the Appellant's application are reserved.

Footnotes

[1] Kelsey v Logan City Council & Ors (No. 8) [2021] QIRC 114 ('the Primary Decision'), [1] (Vice President O'Connor').

[2] Ibid.

[3] Ibid [4].

[4] Ibid [5].

[5] Ibid [7].

[6] Ibid [11].

[7] Ibid [12].

[8] Kelsey v Logan City Council & Ors [2022] QCA 238, [12] (McMurdo and Flanagan JJA and Freeburn J). Relevantly, s 40(1)(a) of the Public Interest Disclosure Act 2010 provides that 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 a public interest disclosure.

[9] The Primary Decision (n 1) [823].

[10] Kelsey v Logan City Council & Ors (No. 9) [2022] QIRC 342.

[11] Ms Kelsey has discontinued her appeal in respect of Mr Timothy Smith: Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [3] (Davis J, President).

[12] Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [129] (Davis J, President).

[13] Kelsey v Logan City Council & Ors (No. 3) [2022] ICQ 021, [51] (Davis J, President).

[14] Kelsey v Logan City Council & Ors [2022] QCA 238, [52] (McMurdo and Flanagan JJA and Freeburn J).

[15] Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [Schedule 1] (Davis J, President) and Kelsey v Logan City Council & Ors [2022] QCA 238, [21] (McMurdo and Flanagan JJA and Freeburn J).

[16] T 1-3, l 38 to T 1-4, l

[17] T 1-19, ll 8-17.

[18] T 1-12, ll 5-8.

[19] T 1-12, ll 13-30.

[20] As provided for in the Industrial Relations Act 2016, ch 11, pt 6, div 2.

[21] Industrial Relations Act 2016, s 424 (1)(e).

[22] [2001] ICQ 30; (2001) 167 QGIG 182 ('Re Brenda Atkinson').

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Re Brenda Atkinson (n 19), 182-183.

[27] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 136 (Toohey J) and DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)..

[28] Jackson v Sterling Industries Ltd [1987] HCA 23: (1987) 162 CLR 612, 623-624 (Deane J, with whom Mason CJ and Wilson and Dawson JJ, at 616, agreed) and 630-631 (Toohey J) and DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[29] Section 558 of the Industrial Relations Act 2016 relevantly provides:

558   What court may do

  1. (1)
    On an appeal under section 556 or 557, the court may –
  1. (a)
    dismiss the appeal; or
  2. (b)allow the appeal, set aside the decision and substitute another decision; or
  3. (c)allow the appeal and amend the decision; or
  4. (d)allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.

[30] [2017] HCA 34; (2017) 262 CLR 362.

[31] Citations omitted.

[32] Re Brenda Atkinson (n 19), 182.

[33]Re Brenda Atkinson (n 19),182 and Kelvin Noel Appo v Q-COMP (No. 3)[2004] ICQ 48; (2004) 176 QGIG 586, 586 (President Hall). See also DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226,  [24]-[26] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[34] T 1-5, ll 9-11.

[35] 1-21, ll 4-9.

Close

Editorial Notes

  • Published Case Name:

    Kelsey v Logan City Council & Ors (No. 4)

  • Shortened Case Name:

    Kelsey v Logan City Council (No. 4)

  • MNC:

    [2023] ICQ 23

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    06 Oct 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Application by Brenda Atkinson to search and take copies of documents [2001] ICQ 30
2 citations
Jump To
Cite 1 - [2001] ICQ 30
Cite 2 - [2001] ICQ 30
Appo v Q-COMP (No. 3) [2004] ICQ 48
2 citations
Jump To
Cite 1 - [2004] ICQ 48
Cite 2 - [2004] ICQ 48
DJL v The Central Authority (2000) 201 CLR 226
4 citations
Jump To
Cite 1 - (2000) 201 CLR 226
Cite 2 - (2000) 201 CLR 226
Cite 3 - (2000) 201 CLR 226
Cite 4 - (2000) 201 CLR 226
DJL v The Central Authority [2000] HCA 17
4 citations
Jump To
Cite 1 - [2000] HCA 17
Cite 2 - [2000] HCA 17
Cite 3 - [2000] HCA 17
Cite 4 - [2000] HCA 17
Harris v Caladine (1991) 172 C.L.R 84
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 84
Cite 2 - (1991) 172 C.L.R 84
Harris v Caladine [1991] HCA 9
2 citations
Jump To
Cite 1 - [1991] HCA 9
Cite 2 - [1991] HCA 9
Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (1999) 161 QGIG 108
1 citation
Jump To
Cite 1 - (1999) 161 QGIG 108
Jackson v Sterling Industries Ltd [1987] HCA 23
2 citations
Jump To
Cite 1 - [1987] HCA 23
Cite 2 - [1987] HCA 23
Jackson v Sterling Industries Ltd (1987) 162 C.L.R 612
3 citations
Jump To
Cite 1 - (1987) 162 C.L.R 612
Cite 2 - (1987) 162 C.L.R 612
Cite 3 - (1987) 162 C.L.R 612
Kelsey v Logan City Council [2022] QCA 238
4 citations
Jump To
Cite 1 - [2022] QCA 238
Cite 2 - [2022] QCA 238
Cite 3 - [2022] QCA 238
Cite 4 - [2022] QCA 238
Kelsey v Logan City Council (No 2) [2022] ICQ 13
4 citations
Jump To
Cite 1 - [2022] ICQ 13
Cite 2 - [2022] ICQ 13
Cite 3 - [2022] ICQ 13
Cite 4 - [2022] ICQ 13
Kelsey v Logan City Council (No 3) [2022] ICQ 21
2 citations
Jump To
Cite 1 - [2022] ICQ 21
Cite 2 - [2022] ICQ 21
Kelsey v Logan City Council (No 9) [2022] QIRC 342
2 citations
Jump To
Cite 1 - [2022] QIRC 342
Cite 2 - [2022] QIRC 342
Kelsey v Logan City Council (No.8) [2021] QIRC 114
2 citations
Jump To
Cite 1 - [2021] QIRC 114
Cite 2 - [2021] QIRC 114
Kelvin Noel Appo v Q-COMP (No. 3) (2004) 176 QGIG 586
2 citations
Jump To
Cite 1 - (2004) 176 QGIG 586
Cite 2 - (2004) 176 QGIG 586
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 91 ALR 321
1 citation
Jump To
Cite 1 - (1989) 91 ALR 321
Re Brenda Atkinson (2001) 167 QGIG 182
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 182
Cite 2 - (2001) 167 QGIG 182
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
WorkCover Queensland v Trevor Ernest Markwell (No.2) (2001) 165 QGIG 351
1 citation
Jump To
Cite 1 - (2001) 165 QGIG 351

Cases Citing

Case NameFull CitationFrequency
Kelsey v Logan City Council (No. 6) [2025] ICQ 22 citations
Wren v Workers' Compensation Regulator [2024] ICQ 42 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.