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Kelsey v Logan City Council (No. 5)[2024] ICQ 15

Kelsey v Logan City Council (No. 5)[2024] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kelsey v Logan City Council & Ors (No. 5) [2024] ICQ 015

PARTIES:

SHARON RAE MARIE KELSEY

(Appellant/Applicant)

v

LOGAN CITY COUNCIL

(First Respondent)

CHERIE MARIE DALLEY

(Third Respondent)

RUSSELL BRUCE LUTTON

(Fourth Respondent)

STEPHEN FREDERICK SWENSON

(Fifth Respondent)

LAURENCE WILLIAM SMITH

(Sixth Respondent)

PHILLIP WAYNE PIDGEON

(Seventh Respondent)

TREVINA DALE SCHWARZ

(Eighth Respondent)

JENNIFER RACHAEL JULIE BREENE

(Ninth Respondent)

CASE NO:

C/2021/8

PROCEEDING:

Appeal and Application in existing proceedings

DELIVERED ON:

5 August 2024

HEARING DATES:

25, 26 and 27 October 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [804] of these reasons for decision

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEALS TO INDUSTRIAL COURT – Appellant employed as the Chief Executive of the First Respondent – Appellant dismissed due to decision of the Third to Ninth Respondents who were Councillors of the First Respondent – Appellant applied to the Queensland Industrial Relations Commission for various orders including reinstatement, injunctive and declaratory relief – Appellant alleged that her dismissal was a contravention of s 40 of the Public Interest Disclosure Act 2010 on the basis that she had made a Public Interest Disclosure to the First Respondent and to others – Appellant also alleged that her dismissal was in contravention of s 285 of the Industrial Relations Act 2016 because she exercised workplace rights within the meaning of s 284 of the Industrial Relations Act 2016 – Appellant's application to the Queensland Industrial Relations Commission for various orders dismissed – Appellant appealed to the Industrial Court of Queensland against the decision of the Queensland Industrial Relations Commission  – Appellant's application to appeal not regular – Appellant applied to amend her application to appeal to regularise it – whether the Appellant's application to amend her application to appeal should be granted – Appellant's application to amend her application to appeal proposes grounds alleging errors of law – Appellant, by her application to amend her application to appeal, applies for leave in the public interest to appeal against proposed grounds alleging errors of mixed law and fact – parties proposed that the Industrial Court of Queensland hear all proposed grounds of appeal in deciding whether to allow the Appellant to amend her application to appeal – proposal adopted by the Industrial Court of Queensland – whether the Appellant's proposed grounds of appeal as pressed are made out  – the Appellant's proposed  grounds of appeal as pressed are not made out  –  Appellant's application to amend her application to appeal dismissed – application to appeal dismissed

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT – where application to appeal was non‑compliant with the Industrial Relations (Tribunals) Rules 2011 and the Appellant applied to amend her application to appeal – circumstances where the Court may exercise discretion to allow amendment – regard to be had to the prospects of success of the proposed grounds

APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE'S FINDING OF FACTS – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where the Appellant alleges wrong findings of fact made – where restraint should be exercised by the Court in interfering with the factual findings made by the trial judge whose findings are likely to have been affected by impressions about the credibility and  reliability of the witnesses as a result of the trial judge hearing and seeing them give evidence – Vice President of the Queensland Industrial Relations Commission, after a long trial, extensive cross-examination of the Third to Ninth Respondents and extensive written and oral submissions by the parties, gave detailed reasons for accepting the sworn evidence of the Third to Ninth Respondents that they did not vote to terminate the Appellant's employment for the proscribed reasons as alleged – Vice President's findings likely to have been affected by impressions about the credibility and  reliability of the Third to Ninth Respondents as a result of the Vice President hearing and seeing them give evidence – appellate restraint exercised

APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE'S FINDING OF FACTS – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – Appellant alleges certain adverse inferences against the Third to Ninth Respondents should have been drawn from social media posts made by them – civil penalties sought by the Appellant – where civil penalties sought, no adverse inferences should be drawn where one or more inferences are equally open  – the adverse inferences sought to be drawn by the Appellant were not the only inferences open

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES –  ERROR OF LAW – FAILURE TO GIVE REASONS – ADEQUACY OF REASONS – Appellant alleged the Vice President of the Queensland Industrial Relations Commission failed to give adequate reasons – the principles about adequacy of reasons were established in DL v The Queen –  the Vice President of the Queensland Industrial Relations Commission gave adequate reasons in conformity with the principles about adequacy of reasons contained in DL v The Queen

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – WITNESSES – CROSS-EXAMINATION – RULE IN BROWNE V DUNN – whether the Vice President of the Queensland Industrial Relations Commission misapplied the rule in Browne v Dunn – no misapplication –  Vice President of the Queensland Industrial Relations Commission correctly applied the principle from Curwen & Ors v Vanbreck Pty Ltd

LEGISLATION:

Acts Interpretation Act 1954, sch 1

Fair Work Act 2009, s 340 and s 557A

Industrial Relations Act 1999, s 342

Industrial Relations Act 2016, s 282, s 284, s 285, s 306, s 314, s 539, s 557, s 558, s 565, s 567, s 571, s 572, s 574, s 575 and sch 3

Industrial Relations (Tribunals) Rules 2011, r 226

Local Government Act 2009, s 176B

Penalties and Sentences Act 1992, s 5 and s 5A

Penalties and Sentences Regulation 2015, s 3

Public Interest Disclosure Act 2010, s 40, s 51 and s 52

Workplace Relations Act 1996, s 298K

CASES:

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 351 ALR 379

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686

Attorney-General (NSW) v Ohlsen [2022] FCAFC 38; (2022) 290 FCR 173

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784: (2010) 187 FCR 293

Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers Appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342

Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442; (2020) 389 ALR 17

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639

Bell Group Ltd (In liq) and Others v Westpac Banking Corporation and Others (No 9) [2008] WASC 239; (2008) 39 WAR 1

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Bradshaw v McEwans Pty Ltd (1951) 2017 ALR 1

Browne v Dunn (1893) 6 R 67

Burns v Grigg [1967] VR 871

Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39

Cleal v State of Queensland (Queensland Health) [2023] ICQ 006

Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) [1995] IRCA 680; (1995) 61 IR 455

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466

Construction, Forestry, Mining and Energy Union and Another v Anglo Coal (Dawson Services) Pty Ltd  [2015] FCAFC 157; (2015) 238 FCR 273

Cosmopolitan Hotel (Vic) Pty Ltd & Anor v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421

Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284; (2009) 26 VR 335

De Winter v De Winter (1979) 23 ALR 211

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1

Doerr v Gardiner [2023] QCA 160

DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529

Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251

Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17

Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201

Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112, [2009] VSCA 178; (2009) 24 VR 155

Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Gibbs v Palmerston Town Council [1987] FCA 732

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186

H v P [2011] WASCA 78

Hamod v New South Wales [2011] NSWCA 375

Harvey v State of Queensland (Queensland Health) [2024] ICQ 10

He v Aloe & Co Pty Ltd [2006] VSC 150

Henning v State of Queensland (Queensland Health) [2023] ICQ 009

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

J Hutchinson v Australian Competition and Consumer Commission [2024] FCAFC 18

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284

Jolly v Sharma [2024] FCA 171

Jones v The Commonwealth [2023] HCA 34; (2023) 97 ALJR 936

Kelsey v Logan City Council and Another [2018] QIRC 009

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

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

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

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

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

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34

McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7

Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) CLR 541

Momcilovic v the Queen [2011] HCA 34: (2011) 245 CLR 1

Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196

Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729

MZAPC v Minster for  Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Parsons v Serco Citizen Services Pty Limited [2024] FCA 754

Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551

Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1

RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310

Saville v Q-Comp and Anor [2007] ICQ 28; (2007) 185 QGIG 243

Serpanos v Commonwealth of Australia [2022] FCA 1226

Sharman v Boshell [2005] NSWCA 476

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State Rail Authority of New South Wales (in liq) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46

TechnologyOne Limited v Roohizadegan [2021] FCAFC 137; (2021) 309 IR 262

The Electrical Trades Union of Queensland v United Group Limited [2007] QIRC 88; (2007) 186 QGIG 611

Transport Accident Commission v Campbell [2015] VSCA 7; (2015) 69 MVR 410

Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244

Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Wong v National Australia Bank Limited [2021] FCA 671

Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148

Workers' Compensation Regulator v Langerak [2020] ICQ 002

Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King [2024] FCA 454

COUNSEL:

Mr P. Zielinski of Counsel for the Appellant.

Mr A. Herbert of Counsel for the First Respondent.

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

SOLICITORS:

Xenophon Davis for the Appellant.

King & Company Solicitors for the First Respondent.

McInnes Wilson Lawyers for the Third to Ninth Respondents.

Contents

PART ONE15

Introduction15

PART TWO17

Background 17

The Primary Decision21

The principal issue this Court is required to determine23

PART THREE 26

The nature of the Court's appellate function26

Appeals by way of rehearing27

The public interest and the appeal on grounds other than error of law or excess,

or want, of jurisdiction28

PART FOUR36

The proposed grounds of appeal 36

The Directions Orders made by this Court following the parties' agreed proposal 37

Ms Kelsey's principal submissions37

PART FIVE42

Part C of Ms Kelsey's principal submissions, proposed ground of appeal 1: 'GROUND 1:

SCRUTINISING THE REASONS GIVEN BY THE INDIVIDUAL RESPONDENTS FOR THEIR VOTES'42

Is proposed ground of appeal 1 about an error of law or an error of fact?42

The parties' principal arguments 43

Kodak is not authority for the proposition in proposed ground of appeal 147

An error of the kind referred to in Earthline is not an error of law47

The decisions in Gibbs, NTEU and Serpanos are not authority for the proposition in proposed ground of

appeal 149

Whether the Councillors' vote was because Ms Kelsey had exercised a workplace right is a question of fact51

The decision in Dawson Services53

The Vice President, in the last two sentences of paragraph [803] of the Primary Decision, correctly

described the task55

Ms Kelsey's other arguments57

Proposed ground of appeal 1 does not allege an error of law58

PART SIX59

Part D of Ms Kelsey's principal submissions, proposed grounds of appeal 3 to 10 and 13 to 27:

'GROUNDS 3 TO 10 AND 3 TO 27 ADEQUACY OF REASONS AND MISUSE OF ADVANTAGE'59

Delay60

The first sub-heading of Part D: 'D.1 Relevant principles as to adequacy of reasons'65

The parties' submissions65

The relevant principles67

The second sub-heading of Part D: 'D.2 Relevant principles as to findings made on assessments

of credibility'68

The third sub-heading of Part D: 'D.3 Key evidence going to adequacy of   reasons or

demonstrating a failure to adequately grapple with the real strength of the evidence'71

Ms Kelsey's alignment claim71

'D.3A Alignment: Misunderstanding the case pressed by Ms Kelsey'75

The allegation about paragraphs [88], [536], [770] and [772]-[773] of the Primary Decision 79

The specific evidence referred to by Ms Kelsey83

'D.3B Alignment: the contents of the WhatsApp messages'87

Ms Kelsey's general complaint about the WhatsApp messages 89

The WhatsApp messages were allegedly treated as neutral  90

The allegation that the Vice President's finding in paragraph [778] was not adequately explained92

The allegation that the Vice President's reasons about inferences pressed by  Ms Kelsey

were not adequately explained93

The Councillors' submissions about the drawing of inferences in cases where civil penalties are sought 96

Specific WhatsApp messages100

WhatsApp messages allegedly demonstrating the participants strategising      for proscribed

reasons102

The Mitcham Council messages102

Messages about support for Mayor Smith103

Messages about having the backs of others104

Messages critical of Ms Kelsey's initial affidavit104

The hearing on 25 January 2018104

The Councillors' alleged 'disingenuous' evidence about the WhatsApp communications108

Psalms 7:14-16110

The communication about Ms Kelsey being hit by the door on the way out112

Other WhatsApp communications referred to by Ms Kelsey117

Conclusion about the contents of the WhatsApp messages121

'D.3C Alignment: What the WhatsApp messages did not say expressly, they   showed implicitly'122

'D3.D Alignment: The 'debate rules''126

'D3.E Alignment: The Hallam email exchange'131

The fourth sub-heading of Part D: 'D.4 Other evidence going to adequacy of reasons or

demonstrating a failure to adequately grapple with the real strength of the evidence'137

'D.4A Assessment of the fairness, reasonableness and rationality of the    individual

respondents' motivations'137

'D.4B Cr Dalley's purported reasons for dismissing Ms Kelsey'139

The Vice President's reasons139

Ms Kelsey's general complaint about the Vice President's decision concerning Cr Dalley's reasons141

The Relay for Life141

The USA Delegation145

The meeting on 5 December 2017147

Acceptable Request Guidelines148

The rejection of Ms Kelsey's submission that Cr Dalley had been outraged by the lodgement

of the PID151

The 'I'm breathing fire' comment154

Conclusion156

'D.4C Cr Breene's purported reasons for dismissing Ms Kelsey'156

'D.4D Cr Lutton's purported reasons for dismissing Ms Kelsey'160

'D.4E Cr Swenson's purported reasons for dismissing Ms Kelsey'168

'D.4F Cr Pidgeon's purported reasons for dismissing Ms Kelsey'174

'D.4G The way the PID complaint was sent'178

'D.4H Reliance on legal advice'181

Conclusion about sub-heading D.4 of Ms Kelsey's principal submissions184

The allegation that the Vice President committed the same error in approach as   the trial

judge in TechnologyOne 184

The five non-respondent councillors185

The decision in TechnologyOne190

The evidence of the non-respondent councillors about their own views of the aspects of

Ms Kelsey's work performance impugned by the Councillors191

Councillor Bradley's evidence of a change in attitude of the Councillors      after 12 October 2017

and her evidence about the vote194

The evidence of Cr Raven that once the Councillors became aware that       only performance

grounds could be used to dismiss Ms Kelsey, they started   looking for performance issues195

The evidence that the Councillors never brought to the attention of the non‑respondent

councillors, prior to the vote, the performance issues they relied upon to dismiss Ms

Kelsey and that Ms Kelsey was not told of the reasons for her dismissal at the time of the vote196

The evidence that the non-respondent councillors were not told by the Councillors why they

chose to dismiss Ms Kelsey196

The evidence that the relevant performance issues were never brought to Ms Kelsey's attention

prior to the vote196

Conclusion197

The Hunter report198

Final matters205

PART SEVEN207

Part E of Ms Kelsey's principal submissions, proposed ground of appeal 2: 'ACCESSORIAL

LIABILITY (GROUND 2)'207

PART EIGHT210

Part F of Ms Kelsey's principal submissions, proposed ground of appeal 12: 'THE MISAPPLICATION

OF BROWNE V DUNN'210

PART NINE223

Proposed grounds of appeal 13 (a) and 13 (b)223

PART TEN225

Conclusion 225

PART ELEVEN226

Orders226

Reasons for Decision

PART ONE

Introduction

  1. [1]
    Ms Sharon Kelsey was employed as the Chief Executive Officer of the First Respondent, the Logan City Council, ('the Council'), commencing in that position on 2 June 2017.[1] At that time, Mr Timothy Smith was the Mayor of the Council ('Mayor Smith').[2] Ms Kelsey's employment was subject to a six month probation period.[3]
  1. [2]
    On 10 October 2017, a probation meeting concerning Ms Kelsey was held between her, two of the councillors, Councillor Cherie Dalley ('Cr Dalley') and Councillor Trevina Schwarz ('Cr Schwarz'), and Mayor Smith.[4]
  1. [3]
    On 12 October 2017, Ms Kelsey made a public interest disclosure, within the meaning of the Public Interest Disclosure Act 2010 ('the PID Act'), to the Council alleging possible corrupt conduct by Mayor Smith ('the Council Complaint').[5] On the same date, Ms Kelsey referred a complaint to the Crime and Corruption Commission ('CCC') alleging possible corrupt conduct by Mayor Smith ('the CCC Referral').[6] On 17 October 2017, Ms Kelsey made a complaint to the Director-General of the Department of Infrastructure, Local Government and Planning, pursuant to s 176B of the Local Government Act 2009, alleging possible misconduct by Mayor Smith ('the s 176B Complaint').[7]
  1. [4]
    On 1 December 2017, Ms Kelsey commenced a proceeding in the Queensland Industrial Relations Commission by filing an application seeking various orders concerning her continued employment.[8] The respondents to that application, at that time, were the Council and Mayor Smith.
  1. [5]
    At that time, the Third to Ninth Respondents were councillors ('the Councillors'). On 7 February 2018, the Councillors carried a motion to terminate Ms Kelsey's employment and her employment was brought to an end by the giving of two weeks' notice.[9]
  1. [6]
    Ultimately, Ms Kelsey, in respect of the termination of her employment, sought orders from the Commission against the Council, Mayor Smith and the Councillors.
  1. [7]
    Ms Kelsey's principal claims were that the termination of her employment was in contravention of the PID Act because she had made the Council Complaint and the CCC Referral; and that the termination of her employment was in contravention of the Industrial Relations Act 2016 ('the IR Act') because she had made the Council Complaint, the CCC Referral and the s 176B Complaint. Those claims were heard by the Vice President and, by decision delivered on 1 April 2021, were dismissed against each Respondent for the reasons given in Kelsey v Logan City Council & Ors (No. 8)[10] ('the Primary Decision').
  1. [8]
    As explained by the reasons that follow:
  • by application to appeal, filed on 21 April 2021, Ms Kelsey appealed to this Court against the Primary Decision ('the application to appeal' or 'Ms Kelsey's application to appeal');
  • by application in existing proceedings filed on 18 June 2021, Ms Kelsey applied for a decision that her application to appeal be '… substituted with the Form 5 – Application to appeal filed with this Form 4 – Application in existing proceedings' ('the application to amend' or 'Ms Kelsey's application to amend');
  • the application to amend was dismissed by this Court but, following an appeal to the Court of Appeal, was remitted to be determined by this Court as currently constituted;
  • the principal matter for the Court's determination is whether the application to amend should be granted; and
  • the parties before me, by agreement, proposed that the application to amend and Ms Kelsey's substantive appeal be listed to be heard together, a proposal which was adopted by this Court. 
  1. [9]
    Ms Kelsey, in her written and oral submissions before me, did not precisely tie her submissions to each proposed ground of appeal that was, in fact, pressed by her. While some specific grounds of appeal were addressed by Ms Kelsey, she otherwise referred to categories of complaint about alleged errors of law and alleged errors of mixed law and fact in the Primary Decision. The ultimate order sought by Ms Kelsey is that her application to appeal be allowed and the matter remitted to the Commission for a retrial.[11]
  1. [10]
    The Court has heard full argument from the parties about the specific grounds of appeal pressed by Ms Kelsey and about the categories of complaint addressed by her. For the reasons that follow, none of them are made out. For those reasons, there is no utility in granting Ms Kelsey's application to amend.
  1. [11]
    As a consequence the Court will:
  • dismiss Ms Kelsey's application to amend; and
  • dismiss Ms Kelsey's application to appeal.

PART TWO

Background

  1. [12]
    As referred to earlier, Ms Kelsey's principal application to the Commission was filed on 1 December 2017. By a further amended application filed on 10 April 2018, Ms Kelsey sought final relief pursuant to the PID Act and the IR Act. By that application, Ms Kelsey sought various orders against the Council, Mayor Smith and the Councillors including:
  • an order that, pursuant to the IR Act, the Council, Mayor Smith and the Councillors pay her damages caused by them;[12]
  • an order that the Council, Mayor Smith and the Councillors pay civil penalties, under the IR Act, to her;[13]
  • an order that, pursuant to the IR Act and the PID Act, she be reinstated;[14]
  • an order, pursuant to the IR Act and the PID Act, that the Council, Mayor Smith and the Councillors pay her lost remuneration as a result of the termination of her employment;[15] and
  • an order, pursuant to the IR Act and the PID Act,  for her continuity of service with the Council[16] ('the application for final relief' or 'Ms Kelsey's application for final relief').
  1. [13]
    Ms Kelsey made various allegations against Mayor Smith and the Councillors in respect of the PID Act. Relevantly to the application to amend, Ms Kelsey claimed that:
  • Mayor Smith and the Councillors were politically affiliated with each other, and the Councillors were aligned with each other and Mayor Smith in relation to her performance, probation and employment matters;[17]
  • each of the Councillors voted to terminate her employment because she had made the Council Complaint and the CCC Referral (which Ms Kelsey defined in the application for final relief as the '… PID')[18] in that they were politically aligned with Mayor Smith and the Councillors were aligned with each other and Mayor Smith in relation to her performance, probation and employment matters;[19]
  • the decision by each of the Councillors to vote to terminate her employment:
  1. –
    caused detriment to her within the meaning of s 40 of the PID Act;[20] and
  2. –
    was taken because, or substantially because, she had made the PID;[21]  and
  • the decision of the Council to terminate her employment:
  1. –
    caused detriment to her within the meaning of s 40 of the PID Act;[22] and
  2. –
    was taken because, or substantially because, she had made the PID.[23]
  1. [14]
    Ms Kelsey also made various allegations in respect of the IR Act. Relevantly to the application to amend, Ms Kelsey claimed that:
  • she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act:
  1. –
    by commencing her proceeding in the Commission on 1 December 2017 ('the QIRC proceeding');[24] and
  2. –
    by making the Council Complaint, the CCC Referral and the s 176B Complaint;[25] and
  • the termination of her employment by the Council:
  1. –
    was adverse action within the meaning of s 282(1) of the IR Act;[26] and
  2. –
    the adverse action was engaged in by the Council for reasons that included that she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act by making the Council Complaint, the CCC Referral, the s 176B Complaint, and by commencing the QIRC proceeding;[27] and
  3. –
    was a breach of s 285 of the IR Act;[28] and
  • she had experienced adverse action as a result of the actions of each of the Councillors in voting to terminate her employment,[29] which was engaged in by the Councillors for reasons that included that she exercised workplace rights within the meaning of s 285(1)(a)(ii) of the IR Act by making the Council Complaint, the CCC Referral, the s 176B Complaint, and by commencing the QIRC proceeding;[30] and
  • the Council was vicariously liable and otherwise liable for the impugned acts of each of the Councillors and each of the Councillors was taken to have contravened s 285 of the IR Act because they were involved in the Council's contravention.[31]
  1. [15]
    The Council, Mayor Smith and the Councillors denied that they had engaged in any conduct for a proscribed reason. The Council relevantly responded by alleging that the reasons for the Councillors voting to terminate Ms Kelsey's employment were not for the reasons alleged by Ms Kelsey in the application for final relief.[32] The Councillors relevantly responded by alleging that they did not vote to terminate Ms Kelsey's employment for the reasons alleged by her.[33]
  1. [16]
    By the Primary Decision, the Vice President ordered that the application for final relief, against the Council, Mayor Smith and the Councillors, be dismissed.[34]  In doing so, the Vice President found that each of the Councillors, in voting to terminate Ms Kelsey's employment, did not do so for a proscribed reason.[35] By further decision dated 30 August 2022, the Vice President ordered that each party bear their own costs in relation to the proceeding before the Commission.[36]
  1. [17]
    By the application to appeal, the Respondents were the Council, Mayor Smith and the Councillors. 
  1. [18]
    The application to amend, which was supported by affidavits of Ms Kelsey and her former solicitor, contains 27 proposed grounds of appeal, namely:
  • 12 grounds of appeal, some of which contain sub-grounds of appeal, alleging errors of law; and
  • 15 grounds of appeal alleging errors of mixed law and fact, some of which contain sub-grounds of appeal ('the proposed grounds of appeal').
  1. [19]
    Ms Kelsey also applied for an order that her appeal, as against Mayor Smith, be dismissed.
  1. [20]
    Following those events:
  • by order of the President of the Court dated 6 May 2022, Ms Kelsey's application to amend was dismissed;[37]
  • by further order of the President dated 14 July 2022, Ms Kelsey was ordered to pay the Council's and the Councillors' costs of the proceeding before the Court;[38] and
  • by orders of the Court of Appeal dated 25 November 2022, Ms Kelsey's appeals against the two orders of the Court were allowed and Ms Kelsey's application to amend was remitted to this Court.[39]
  1. [21]
    By email sent from Ms Kelsey's current solicitors to my chambers on 14 December 2022,  the parties, by agreement, proposed:
  • that Ms Kelsey's application to amend and her substantive appeal be heard together in a three day hearing; and
  • certain orders for such a hearing ('the parties' agreed proposal').
  1. [22]
    Subsequently, the Court made two Directions Orders that reflected the parties' agreed proposal. Not all of the proposed grounds of appeal were argued by Ms Kelsey before this Court.
  1. [23]
    In its written submissions to this Court, the Council described its position, and the position of the Councillors, following the remittal of the application to amend back to this Court, in the following way:
  1. By reason of the manner in which the matter was dealt with by the Court of Appeal, the First and Third to Ninth Respondents have agreed to the application seeking leave to amend the non-compliant Notice of Appeal being listed together with the substantive appeal now sought to be argued by the Appellant.  As a consequence, this Court is now asked, firstly, to decide the question as to whether leave to amend the Notice to Appeal should be granted and, secondly, if such leave is to be granted (whether in whole or in part), to hear that appeal. 
  1. [24]
    Because of the Directions Orders made, the parties, before this Court, fully argued whether the Primary Decision was affected by certain errors of law and, for reasons discussed later, whether the Primary Decision was affected by the categories of complaint of errors of law and the categories of complaint of errors of fact argued by Ms Kelsey; and whether it is in the public interest for leave to be granted for Ms Kelsey to pursue the latter complaints about errors of fact.
  1. [25]
    Because of the specific errors and categories of complaint about the Primary Decision pursued, in submissions before this Court, the parties generally referred to '..the PID' and did not always distinguish between the Council Complaint, the CCC Referral or the s 176B Complaint in respect of the different factual circumstances upon which Ms Kelsey made claims under the PID Act and under the IR Act. Further, the parties did not distinguish between the claims made under the PID Act and under the IR Act. For reasons that will become clear, such distinctions are not necessary to understand my reasons. As a consequence, where, in these reasons, reference is made to the '…public interest disclosure' or to the '…PID', that should be taken to be a reference to the Council Complaint, the CCC Referral and the s 176B Complaint relevant to the particular claim made by Ms Kelsey.

The Primary Decision

  1. [26]
    Ms Kelsey's application for final relief was heard over 23 days between 17 December 2018 and 10 June 2020. The reasons given in the Primary Decision cover 153 pages made up of 823 paragraphs.
  1. [27]
    The Primary Decision was structured in the following manner.
  1. [28]
    After an introduction, the Vice President:
  • set out the applicable legislation and the key concepts in the applicable legislation as sought to be enlivened by Ms Kelsey;[40]
  • set out the law in relation to onus of proof and in respect of the operation s 306 of the IR Act ('Reasons for action to be presumed unless proved otherwise');[41]and
  • gave a background to the evidence and an overview of Ms Kelsey's evidence.[42]
  1. [29]
    His Honour then provided a summary of the key issues including, relevantly to the arguments made by Ms Kelsey to this Court in respect of her application to amend:
  • an event referred to as 'Relay for Life';[43]
  • the probationary process concerning Ms Kelsey's employment;[44]
  • Ms Kelsey's making of the Council Complaint, the CCC referral and the s 176B complaint[45] and the impact of the Council Complaint and the CCC Referral;[46]
  • the conduct of a process and report by Ms Rachel Hunter ('the Hunter process' or 'the Hunter report');[47]
  • Ms Kelsey's commencement of proceedings in the Queensland Industrial Relations Commission;[48]
  • the 'USA Delegation';[49]
  • Acceptable Request Guidelines ('ARGs');[50]
  • the seating arrangements for councillors' committee meetings;[51]
  • councillor updates and levels of information provided to councillors;[52]
  • the termination of Ms Kelsey's employment;[53] and
  • WhatsApp messages that involved various persons including Mayor Smith and a number of the Councillors  ('the WhatsApp messages').[54]
  1. [30]
    The Vice President then, separately, summarised the evidence of each Councillor and, in doing so, referred to their sworn reasons for voting to dismiss Ms Kelsey. The Vice President then conducted an assessment of the evidence of each of them in respect of coming to a determination about what motivated them to vote to dismiss Ms Kelsey, which his Honour found was not for proscribed reasons.[55]
  1. [31]
    The Vice President then gave reasons why his Honour dismissed Ms Kelsey's application for final relief in respect of the IR Act and the PID Act, as against the Council, Mayor Smith and the Councillors.[56] That included a detailed assessment of why his Honour rejected one of the key claims made by Ms Kelsey, namely, the alleged alignment between Mayor Smith and the Councillors, and between the Councillors, in relation to Ms Kelsey's performance, probation process and her employment ('Ms Kelsey's alignment claim').[57]

The principal issue this Court is required to determine

  1. [32]
    Ms Kelsey, before this Court, submitted:
  • that she was seeking leave '… to regularise her' application to appeal by the substitution of her application to amend, and that issue is related to whether the proceeding ought to be set aside under r 226(2)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules');[58] and
  • the issue should be approached by the Court, in part, by considering if the application to amend raised arguable grounds of appeal.[59]
  1. [33]
    In her written submissions, Ms Kelsey submitted:
  1. Even on their face, the reasons for the decision demonstrate the incorrect application of legal principle and factual findings that are not supported by a disclosed path of reasoning. Those errors had a material impact on the disposition of the proceeding. When attention is paid to the vast tracts of evidence and submissions that were not dealt with by the Vice President, the obvious injustice created by the decision is further apparent.

…

  1. In those circumstances, and in the absence of any demonstrable prejudice on the part of the individual respondents, it is in the interests of justice that leave be granted to allow Ms Kelsey to amend her application to appeal. This is particularly so having regard to the extreme caution that an appellate body ought to exercise before depriving an appellant the right to appeal where they have filed an appeal in time but in non-compliance with the relevant court rules.
  1. [34]
    The Council did not oppose the grant of leave for Ms Kelsey to amend her application to appeal, but '… with one significant qualification', namely, that the leave of the Court is required, pursuant to s 557(2) of the IR Act, for Ms Kelsey to appeal on grounds other than error of law or excess, or want, of jurisdiction.  The Council opposed leave being granted for Ms Kelsey to amend her application to appeal to include those grounds.[60] 
  1. [35]
    The Councillors submitted that the Court should not grant leave to Ms Kelsey to regularise her appeal, because, for the reasons they advance, her appeal does not enjoy sufficient prospects of success.[61]
  1. [36]
    Despite the way the proceeding before me was conducted, having regard to the remittal of Ms Kelsey's application to amend by the Court of Appeal, the principal issue this Court is required to determine is whether the Court should grant Ms Kelsey's application to amend. Ms Kelsey submitted,[62] in reliance on the decision in Gambaro v Workers' Compensation Regulator ('Gambaro'),[63] the issue of whether she should have leave '…to regularise' is related to whether the proceeding ought to be set aside under r 226(2)(a) of the Rules, and, in particular, whether her proposed grounds of appeal raise an arguable case on appeal. That submission cannot be accepted.
  1. [37]
    In Gambaro, the unrepresented appellant filed an application to appeal that did not comply with the Rules in that it did not state any concise grounds of appeal. An application was made by the respondent to set aside the appeal under r 226(2)(a) of the Rules for those reasons. In allowing the respondent's application, and dismissing the appeal under r 226, Martin J, President found that the notice of appeal did not disclose an arguable case. His Honour also found that setting aside the notice of appeal to allow the appellant to amend his notice of appeal would not change that result, there were no other grounds upon which the appellant might rely and, because it was an application without merit, it was an abuse of process and should not be allowed to remain on foot.[64] The present circumstances are different from Gambaro. In that case there was no application to amend. The focus was on whether the grounds of appeal, filed within the limitation period, disclosed an arguable case in light of an application by the respondent to dismiss the appeal under the Rules for non-compliance with the Rules. The present circumstances are that Ms Kelsey is a represented appellant proposing to amend her application to appeal by way of clearly articulated grounds of appeal, that comply with the Rules, filed after the appeal limitation period.
  1. [38]
    The principles to apply in the consideration of leave to amend an application to appeal are settled. The principal consideration is the prospect of the appeal succeeding.[65] In Ms Kelsey's case, the principal consideration is the prospect of the proposed grounds of appeal, as pressed by her before this Court, succeeding.
  1. [39]
    In Workers' Compensation Regulator v Langerak,[66] one of the issues Martin J, President had to consider was an application by the Workers' Compensation Regulator to amend its application to appeal to pursue a new ground of appeal. In allowing the Regulator to pursue that new ground of appeal (and in fact allowing the appeal on that new ground) his Honour relevantly stated:
  1. [57]
    In Saville v Q-COMP & the State of Queensland (acting through the Department of Corrective Services), Hall P set out the considerations that affect the decision to grant leave to a party to amend its application to appeal:

“In exercising the discretion to grant leave to amend grounds of appeal, an important matter is the prospect of the Appeal succeeding; see Burns v. Grigg [1967] VR 871 at 872 per Barry J with whom Little and Gowans JJ agreed, and Mitchelson v Mitchelson (1979) 37 FLR 289 at 289 per Smithers J. Here, there is no likelihood of an appeal upon the grounds at proposed paragraphs 1(i), (ii) and (iv), 2 and 3 succeeding. The firm general rule is that a party will not be permitted to raise a point for the first time upon appeal where, had the point been raised in the court below, evidence could have been given which by any possibility could have prevented it from succeeding, compare Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. The truth is that if the proposed new grounds had been raised by the original application to appeal, the Appellant would not have been permitted to rely upon them.”

  1. [58]
    Accordingly, in determining whether to grant leave to amend the application to appeal I will consider the prospect of the appeal succeeding on the proposed new ground.[67]
  1. [40]
    Other relevant considerations may include the explanation given by an appellant necessitating the amendment and any prejudice that may be suffered by a respondent[68] or if the proposed amendment would be oppressive to a respondent.[69]
  1. [41]
    Due to the way the matter was argued before me, the issues of Ms Kelsey's explanation necessitating her application to amend and any prejudice or oppression to the Council and the Councillors, do not attract the prominence they might otherwise have had.
  1. [42]
    The principal issue for my determination is whether the Court should, pursuant to s 539(d)[70] of the IR Act or, pursuant to r 226(2)(f)[71] of the Rules, allow Ms Kelsey's application to amend.
  1. [43]
    Ms Kelsey's written and oral submissions were framed in such a way as to address specific grounds of appeal alleging errors of law, categories of complaint about errors of law and categories of complaint about errors of mixed law and fact. The categories of complaint about errors of law and errors of mixed law and fact were, in general, not tied back to specific grounds, or sub-grounds, of appeal.
  1. [44]
    The Council and the Councillors framed their written and oral submissions in response to Ms Kelsey's written and oral submissions.
  1. [45]
    Having regard to the parties' agreed proposal and the nature of the parties' submissions, I will determine Ms Kelsey's application to amend by dealing with the specific grounds of appeal alleging errors of law and by dealing with the categories of complaint of errors of law she has addressed. I have had the benefit of full argument about those matters. In respect of dealing with an appeal by reference to categories of complaint, such an approach has been adopted by appellate courts having regard to the nature of the submissions made[72] or where there are overlapping appeal grounds and overlapping submissions.[73]  I will determine if the categories of complaint of errors of law, to the extent they are referrable to Ms Kelsey's proposed grounds of appeal about the errors of law that she presses, are made out. Later in these reasons, I deal with my approach to the categories of complaint about errors of fact addressed by Ms Kelsey.

PART THREE

The nature of the Court's appellate function

  1. [46]
    In terms of assessing the prospects of Ms Kelsey's appeal, on the pressed grounds of appeal as contained in the application to amend, it is appropriate to consider the Court's appellate function.
  1. [47]
    Section 557(1) of the IR Act relevantly provides that a person aggrieved by a decision of the Commission may appeal against the decision to the Court on the ground of error of law or excess, or want, of jurisdiction.
  1. [48]
    Section 557(2) of the IR Act further provides that a person aggrieved by a decision of the Commission may appeal against the decision to the Court, with the Court's leave, on a ground other than error of law or excess, or want, of jurisdiction. Section 557(4) of the IR Act provides that if a person may appeal a decision of the Commission under s 557(1) and s 557(2), the person may only appeal against the decision with the Court's leave on a ground mentioned in s 557(2).
  1. [49]
    Section 565 of the IR Act ('When leave for appeal must be given') relevantly provides that if an application for leave to appeal is made under s 557, the Court must give leave if it is satisfied it is in the public interest to do so and may not give leave otherwise.
  1. [50]
    Section 567(1) of the IR Act relevantly provides that an appeal to the Court  is by way of re-hearing on the record. Sub-section 567(2) provides that the Court may hear evidence afresh or additional evidence if the Court considers it appropriate to effectively dispose of the appeal.
  1. [51]
    Sub-section 558(1) of the IR Act provides that on an appeal under s 557, the Court may:
  • dismiss the appeal; or
  • allow the appeal, set aside the decision and substitute another decision; or
  • allow the appeal and amend the decision; or
  • allow the appeal, suspend the operation of the decision and remit the matter, with or without directions to the Commission to act according to law.

Appeals by way of rehearing

  1. [52]
    In Allesch v Maunz,[74] Gaudron, McHugh, Gummow and Hayne JJ described the nature of an appeal by way of rehearing:
  1. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.[75]
  1. [53]
    Further, as Gibbs CJ, Wilson, Brennan and Dawson JJ stated in Coulton v Holcombe:[76]

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

  1. [54]
    In Minister for Immigration and Border Protection v SZVFW[77] Gageler J stated of an appeal by rehearing:
  1. Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to “give the judgment which in its opinion ought to have been given in the first instance”. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. “[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”
  1. For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.[78]
  1. [55]
    A further consideration is whether any error, if established, would have any relevant effect on the decision at first instance. In De Winter v De Winter,[79] Gibbs J, albeit in relation to errors going to the assessment of the credit of a witness, put the issue this way:

It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.[80]

The public interest and the appeal on grounds other than error of law or excess, or want, of jurisdiction

  1. [56]
    In her application to amend, Ms Kelsey contends:

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. the relevant factual errors, if made out, manifest an injustice because they were, in combination, critical to the disposition of the proceeding; and
  2. 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. [57]
    Ms Kelsey also contends that it is in the public interest that she be given leave to appeal about alleged errors of fact because:
  • her '…PID complaint' went to the heart of the functioning of one of the largest local governments in Australia;[81] and
  • decisions should be given in a timely manner and, through no fault of her own, she was deprived of the opportunity to have her case judged when the evidence on which it was based '…. was fresh in the Vice President's mind.'[82]
  1. [58]
    In her written submissions,[83] Ms Kelsey made four propositions about the matter referred to in paragraph 28(a) of the application to amend, namely:
  • had the errors and failures in the Primary Decision (she has alleged) not occurred, there was a realistic possibility that the decision in fact made could have been different, citing as authority for that proposition Nathanson v Minister for Home Affairs ('Nathanson')[84] and MZAPC v Minster for  Immigration and Border Protection ('MZAPC');[85]
  • accordingly, it is appropriate that those matters be corrected on appeal;
  • this '… realistic possibility' test requires a counterfactual analysis, undertaken '… as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined', citing as authority for that proposition the judgment of Gageler J in Nathanson;[86] and
  • the assessment, referred to immediately above, is judged without regard to any subjective findings that the Vice President otherwise made, citing as authority for that proposition DQM18 v Minister for Home Affairs ('DQM18').[87]
  1. [59]
    The three cases cited by Ms Kelsey involved applications for judicial review of administrative decisions (about migration matters) which were allegedly the subject of jurisdictional error and where it was contended the errors made were material such that there was a realistic possibility the decisions made could have been different.
  1. [60]
    These matters were not pressed in Ms Kelsey's principal oral submissions.
  1. [61]
    In her oral submissions in reply,[88] Ms Kelsey referred to specific passages of the judgments of Kiefel CJ, Gageler, Keane and Gleeson JJ,[89] and of Edelman J in MZAPC as authority for the proposition that the principle of materiality, so as to warrant a new administrative hearing, was taken from the principles that applied to the grant of new civil trials on appeal. Ms Kelsey emphasised[90] the judgment of Edelman J, namely:
  1. 179
    It is therefore now long established that the general test for the refusal of a new civil trial under legislation or rules of court despite an error of law is that “the court might refrain from granting a new trial if it was affirmatively satisfied that the actual verdict returned could not have been affected". And as to new criminal trials, in Weiss this Court explained that the common form proviso was enacted against the shared history of the grant of new civil and criminal trials following legal error. Like the condition for a new civil trial, it will usually be sufficient to engage the proviso if the error was immaterial in the sense that the appellant was not deprived of the possibility of acquittal because conviction by the jury was "inevitable". And also like the conditions for a new civil trial, "some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable". This Court in Weiss said that a "significant denial of procedural fairness at trial" was an example of such a fundamental error.[91]
  1. [62]
    As I understand Ms Kelsey's four propositions, as set out in paragraph [58] above, and by her oral submissions in reply, she contended, assuming that the Vice President made the factual errors as identified by her, there was a realistic possibility that the Vice President's decision could have been different, and that conclusion is apt to determine that it is in the public interest that leave should be given to her to appeal on her pressed categories of complaints of errors of fact.
  1. [63]
    I do not find these submissions meritorious in respect of the point Ms Kelsey was trying to make about why it is in the public interest that she be given leave to appeal against the Primary Decision on her pressed categories of complaints of errors of fact. This is for three reasons.
  1. [64]
    First, the cases cited as authority for Ms Kelsey's four propositions do not concern a consideration of the issues that go to determining the public interest for leave to be given to appeal about alleged errors of fact. They concern the question of whether errors made by administrative decision makers are material to the decision so as to involve jurisdictional error.
  1. [65]
    The facts in Nathanson were that the appellant had been denied procedural fairness before the Administrative Appeals Tribunal ('the AAT') in respect of a review sought of a decision made by the delegate of the relevant Minister not to revoke the mandatory cancellation of the appellant's visa to remain in Australia.[92] The question before the High Court was whether the denial of procedural fairness by the AAT was material to its decision, to affirm the delegate's decision, so as to involve jurisdictional error.[93] The relevant part of the decision of Gageler J, which was emphasised by Ms Kelsey, was:
  1. [46]
    SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.
  1. [66]
    This passage is about establishing the threshold for materiality in respect of the question of whether a denial of procedural fairness by an administrative decision maker involved jurisdictional error. This part of the decision was in response to a submission made in Nathanson that sometimes it is incumbent on an applicant, who seeks to establish the materiality of a denial of procedural fairness, to demonstrate by evidence how an opportunity to be heard would have been used had it been afforded.[94]
  1. [67]
    MZAPC involved an application made by the appellant for a protection visa. A delegate of the Minister refused the protection visa and the appellant applied to the Refugee Review Tribunal ('the RRT') for a merits review of the decision.[95] There was a failure by the RRT, to disclose to the appellant, a notification referencing certain specified documents about his conviction of certain offences which had been given to it by the Secretary of the relevant Commonwealth department.[96] This was accepted by the parties to be a breach of an implied condition of procedural fairness.[97] The question before the High Court was whether that breach was material to result in jurisdictional error.[98] Kiefel CJ, Gageler, Keane and Gleeson JJ relevantly held:
  1. 51
    Just as a court called upon to determine whether a new trial should be ordered must be careful not to assume the function of the primary trier of fact (whether it be a judge or a jury), so a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker. Faced with a procedural irregularity having been shown to have occurred in a decision-making process, the court is nevertheless in each case charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred.
  1. [68]
    In DQM18 the relevant Assistant Minister refused to revoke the mandatory cancellation of the appellant's visa. The judicial review of the decision sought by the appellant was dismissed.[99] On appeal to the Full Court of the Federal Court of Australia, the question was whether the errors made by the decision maker in failing to consider certain representations about the appellant were material so as to involve jurisdictional error. The majority[100] relevantly stated about the task of determining the issue of materiality:
  1. 115
    Further, the exercise to be undertaken by the reviewing court is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision. Otherwise, where there are emphatic adverse findings in a particular decision, then even egregious breaches of an “inviolable” limitation (eg obvious misconstruction of a statute; obvious denial of procedural fairness) would be held not to be an error of a jurisdictional kind because the subjective state of mind of the particular decision-maker, imputed by the Court on the basis of the rest of the  decision‑maker’s reasons, would prevail in the materiality analysis. The proposition is not that a decision-maker is free to contravene an inviolable limitation on her or his exercise of power so long as she or he makes her or his findings so emphatic that a reviewing court can say that no matter what the error, the decision-maker in question would not have changed her or his mind. That would effectively immunise decisions from scrutiny on judicial review. We do not consider that was the intent of the majority’s statement of principle in SZMTA, for that would indeed overthrow a considerable amount of the jurisprudence of that Court itself.
  1. [69]
    Secondly, the judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC, to which I was referred in Ms Kelsey's oral submissions in reply, concerned, in responding to a submission that the respondent bore the onus to disprove materiality, certain errors of law in civil trials raised in appeals, namely, where evidence was wrongly rejected at trial[101] or where there was procedural unfairness in a trial.[102] Similarly, the specific passage of the judgment of Edelman J in MZAPC, emphasised by Ms Kelsey, concerns the circumstance where there was an error of law in a civil trial.
  1. [70]
    Thirdly, the submissions conflate the issue of materiality, in the determination of whether an administrative decision maker engaged in jurisdictional error, with the issue of whether it is in the public interest to give leave to appeal on the grounds of errors of fact by virtue of the combined effect of s 557(2) and s 565 of the IR Act.
  1. [71]
    Despite the analogical reference, in the cases referred to by Ms Kelsey, to the principles observed by an appellate court in respect of whether or not to order a new civil trial where there was legal (as opposed to factual) error, Ms Kelsey's reliance on these cases is at odds with the purpose of s 557(2) of the IR Act. While, in an appropriate case, the private interests of a party may be relevant in determining where the public interest lies,[103] the question involved in the application of s 557(2) of the IR Act is not determinatively answered by considering if there are errors of fact where it may be objectively assessed that, on the balance of probabilities, the decision appealed against could have been different. The question is whether it is in the public interest to give leave to appeal on the asserted grounds of errors of fact.
  1. [72]
    The Councillors submitted that:
  • the manner in which the Legislature has restricted the right of appeal is significant in that the restriction is not conditional upon an applicant being able to show a prima facie case of factual error, or that an inability to appeal on matters of fact would visit some personal hardship on them;
  • rather, the Legislature has restricted the right of appeal to matters that are in the public interest, and the possibility that factual error may remain uncorrected is embraced by the form of the limitation chosen by Parliament, therefore, something more than the existence of error must be shown; and
  • the choice of the Legislature is understandable in that hearings as to questions of fact are lengthy and impose a substantial burden on the judicial system and accordingly, under the IR Act, questions of fact are to be tried at first instance and not re-tried on appeal, except in circumstances where it is in the public interest.[104]
  1. [73]
    The Council made similar submissions.[105]
  1. [74]
    The submissions of the Councillors and the Council are correct. The purpose of the combined operation of ss 557(2) and s 565 of the IR Act is obvious from the text of those provisions. In Henning v State of Queensland,[106] Davis J, President stated:
  1. [12]
    Sections 557 and 565 together operate in this way:
  1. Section 557 gives a right of appeal from the Commission to this Court.
  1. Section 557(1) limits appeals as of right to ones based on grounds of error of law or excess or want of jurisdiction.
  1. Section 557(2) provides for an appeal not as of right, but by leave of the Court, on grounds other than errors of law or excess or want of jurisdiction.
  1. Section 565 of the IR Act limits the Court’s discretion to grant leave to circumstances where it is in the public interest to do so.
  1. [75]
    The expression, '…in the public interest'[107] when used in a statute:

[C]lassically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view"

  1. [76]
    The ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.[108]
  1. [77]
    In general, there is a public interest in the finality of litigation in that the scarcity of re-trials on the papers, and the tendency to limit appeals by way of hearing de novo to cases in which there is no full hearing or record of the hearing at first instance, are indications that public policy does not favour second chance hearings.[109] In Doyles Construction Lawyers v Serratore, a Full Bench of the Commission refused leave to appeal under s 342(3) of the Industrial Relations Act 1999. That section conferred discretion on the Full Bench, if the matter was important enough in the public interest, to give leave to appeal against a decision of the Commission on grounds other than error of law or jurisdictional error. Leave was refused for reasons that included that the Full Bench found that what it was really being asked to do was to '… review a decision of a tribunal of first instance to prefer one body of evidence over another.'[110]  
  1. [78]
    Because one of the primary purposes of the IR Act is the resolution of industrial disputes, the disposal of a dispute in a manner that takes account of the interests of the disputants is within the scope and purpose of the IR Act, and the reference to 'public interest' is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for consideration.[111] The public interest may demand that leave be granted notwithstanding that there is no issue about setting a precedent[112] or that only the individuals in the proposed appeal are concerned.[113]
  1. [79]
    While not abandoning their principal submission that Ms Kelsey has not demonstrated it is in the public interest that she be granted leave under ss 557(2) of the IR Act, the Councillors submitted they would respond to those alleged errors to demonstrate why there are no errors of fact.[114] The Councillors submitted that the Court may wish to deal with those issues in any event.[115]
  1. [80]
    In written submissions, the Council submitted:
  1. On balance, and with the benefit of written submissions on the part of the parties as to how the arguments relating to the appeals on fact are to be addressed, the Court is entitled to refuse leave to appeal in relation to those matters, so as to obviate the necessity of re‑arguing those issues in this appeal.
  2. It is submitted that the Court should adopt that course.
  1. [81]
    In determining Ms Kelsey's application to amend, my task is to assess the prospects of success of Ms Kelsey's grounds of appeal. Whether it would be in the public interest to give leave to Ms Kelsey to appeal about errors of fact is a matter that is finely balanced.
  1. [82]
    Proposed grounds of appeal 13 to 27, to the extent they are pressed by the categories of complaint as addressed by Ms Kelsey, allege that the Vice President:
  • failed to have regard to certain relevant considerations and evidence;[116]
  • had regard to certain irrelevant considerations;[117]
  • made certain wrong findings of fact;[118] and
  • failed to consider or adequately consider certain evidence.[119]
  1. [83]
    The facts are:
  • Ms Kelsey's proceeding:
  1. –
    took up 23 days of hearing and heard from many witnesses;
  2. –
    involved 116 exhibits; and
  3. –
    was the subject of detailed final written submissions, supplemented by extensive oral submissions;
  • the Vice President made detailed findings of fact, in respect of each of the Councillors, that the reasons each of them voted to terminate Ms Kelsey's employment were not proscribed reasons; and
  • it would be likely that his Honour's findings would have been affected by his impressions of the credibility of the witnesses from seeing and hearing them give evidence in respect of which this appellate Court must exercise restraint.
  1. [84]
    There is a case for the Court not to be satisfied that it is in the public interest that leave be given to Ms Kelsey to appeal on grounds of errors of fact. This is because Ms Kelsey is seeking a review of certain findings of fact, made by the Vice President, in the circumstances outlined above.
  1. [85]
    On the other hand, in my view, there is a clear public interest in Ms Kelsey being given leave to appeal on the grounds of alleged errors of fact. This is because of the unique circumstances of her case.  Ms Kelsey's case was that reprisal action (her dismissal) was unlawfully taken by the democratically elected Councillors because, when chief executive officer of the Council, she made a public interest disclosure and exercised workplace rights, including by way of the CCC Referral and the s 176B Complaint, about possible corrupt conduct by the democratically elected Mayor of the Council. On balance, my assessment is that these considerations, because they concern the elected representatives of a local government, and whether the PID Act and the IR Act were observed, outweigh the public interest considerations of the finality of the litigation.
  1. [86]
    The other matters referred to by Ms Kelsey are not persuasive. There is no sound reason why the functioning of a large local government would attract the public interest, in giving leave to appeal on grounds of errors of fact, any more than would the functioning of a small local government.  Further, on its own, delay, if any, in the giving of reasons does not necessarily mean a litigant was deprived of an opportunity to have their matter properly determined on the evidence. For the reasons I give later about the submissions Ms Kelsey made about alleged delay, more than mere delay itself needs to be established to conclude there is some injustice.
  1. [87]
    The parties have made detailed written and oral submissions about whether Ms Kelsey's categories of complaint about errors of fact are made out.[120]
  1. [88]
    I will consider if the categories of complaint about errors of fact addressed by Ms Kelsey, to the extent they are referrable to her proposed grounds of appeal about errors of facts that are pressed by her, are made out.

PART FOUR

The proposed grounds of appeal

  1. [89]
    The application to amend contains proposed grounds of appeal 1 to 12, which concern alleged errors of law. Of those 12 grounds there are five sub-categories, namely:
  1. –
    ground 1, 'Evidence relevant to assessing reasons actuating dismissal vote';
  2. –
    ground 2, 'Accessorial liability';
  3. –
    grounds 3 to 10, 'Inadequacy of reasons';
  4. –
    ground 11, 'Meaning of "industrial law"'; and
  5. –
    ground 12, 'Browne v Dunn'.
  1. [90]
    The application to amend also contains proposed grounds 13 to 27 which concern alleged errors of mixed law and fact.
  1. [91]
    Of the 27 proposed grounds of appeal, there are a number which contain two or more sub-paragraphs.
  1. [92]
    Not all of the proposed grounds of appeal were pressed or argued by Ms Kelsey. Ms Kelsey did not press grounds 4(f), 4(g), 4(j), 4 (k), 6(a), 8(b), 9(b), 10(a), 10(b), 10(c), 11, 18(d), 20(b), 20(c), 21(a), 21(b), 22, 23, 27(b), 27(c)(i) and 27(d).[121] 
  1. [93]
    The argued grounds of appeal, consisted of, on my count, 56 separate grounds and            sub-grounds of appeal, although, as explained below, Ms Kelsey's written and oral submissions were not tied back to the vast majority of those grounds.

The Directions Orders made by this Court following the parties' agreed proposal

  1. [94]
    As a consequence of the parties' agreed proposal, the Court made Directions Orders which mirrored the parties' draft agreed orders.
  1. [95]
    Those orders included that Ms Kelsey file and serve an outline of submissions in respect of both the question of leave to amend and the substantive appeal with such outline:
  1. Identifying each error of law alleged by the Appellant to exist in the Primary Decision; and
  2. Identifying each error of fact, and each error of mixed fact and law, alleged by the Appellant to exist in the Primary Decision, and in respect of each such asserted factual error, or mixed error of fact and law, providing submissions as to:
    1. why leave should be granted in accordance with s 557(2) of the Industrial Relations Act 2016 (Qld);
    2. the precise finding of fact which is alleged to be erroneous;
    3. the finding of fact which the Appellant submits should have been made; and
    4. how it is, with reference to authority, that the alleged error is a type of error that can be corrected on this appeal.[122]
  1. [96]
    The Court also made orders that:
  • Ms Kelsey file and serve an Appeal Record Book ('ARB');[123]
  • the Council and the Councillors file and serve outlines of submissions and that Ms Kelsey files and serves submissions in reply;[124] and
  • unless the Court granted leave, a party's oral argument at the hearing of the appeal '… will be restricted to issues and contentions raised by that party in their written outlines of submissions, or those of the other parties.'[125]
  1. [97]
    Because of the length of the hearing before the Vice President, and the number of witnesses and the number of exhibits, the ARB consists of 6772 pages contained in 12 volumes.

Ms Kelsey's principal submissions

  1. [98]
    In order to understand Ms Kelsey's application to amend and my decision, it is necessary to briefly consider the structure of her principal submissions filed on 7 August 2023 ('Ms Kelsey's principal submissions').
  1. [99]
    Ms Kelsey's principal submissions are organised in the following manner:
  • paragraphs 1 to 21 consist of an introduction;
  • paragraphs 22 to 35 concern proposed ground of appeal 1, which is that the Vice President erred in law in finding, at paragraph [803] of the Primary Decision, that when assessing the lawfulness of the reasons that the Councillors alleged actuated their decision to vote for the termination of Ms Kelsey's employment, the reasonableness, fairness or justification for those reasons was irrelevant;
  • paragraphs 36 to 151 concern:
  1. –
    proposed grounds of appeal 3 to 10, said to be errors of law;
  2. –
    proposed grounds of appeal 13 to 27, said to be mixed errors of law and fact,:
  • further, of paragraphs 36 to 151 (by reference to the sub-headings used by Ms Kelsey):
  1. –
    paragraphs 36 to 46 deal with the 'Relevant principles as to adequacy of reasons';
  2. –
    paragraphs 47 to 61 deal with the 'Relevant principles as to findings made on assessments of credibility';
  3. –
    paragraphs 62 to 120 deal with 'Key evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence' which then deal with five categories of the evidence in respect of Ms Kelsey's alignment claim; and
  4. –
    paragraphs 121 to 151 deal with 'Other evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence' which then deal with eight categories of the evidence, including the sworn evidence given by five of the seven Councillors;
  • paragraphs 152 to 166 deal with proposed ground of appeal 2 which contends that the Vice President erred in law in finding, at paragraphs [294], [331] and [760]-[763] of the Primary Decision, that it was an essential element of establishing involvement by the Councillors in the Council's contravening conduct, that each of those Councillors knew how the other Councillors were going to vote on the motion to terminate Ms Kelsey's employment;
  • paragraphs 167 to 180 deal with proposed ground of appeal 12 which contends that the Vice President erred in the application of the rule in Browne v Dunn;[126]
  • paragraphs 174 to 180 deal with the requirement that leave in the public interest must be given for Ms Kelsey to be able to pursue grounds of appeal that go to errors of fact; and
  • paragraphs 181 to 190 which, as discussed earlier, concern Ms Kelsey's submissions about been given leave to '… regularise her appeal'.
  1. [100]
    The Council[127] and the Councillors[128] criticised Ms Kelsey's principal submissions because, despite the Directions Orders as referred to in paragraph [95] of these reasons, those submissions:
  • did not identify the findings of fact which are said to be erroneous and the findings of fact which ought to have been made on the evidence;
  • only expressly deal with ground 1 and ground 2; and
  • rolled up grounds 3 to 10 (error of law grounds) and 13 to 27 (errors of law and errors of mixed law and fact grounds) into 115 paragraphs and, with the exception of a solitary footnote,[129] those submissions are not cross-referenced to those 23 separate grounds of appeal.
  1. [101]
    Specifically, the Councillors submitted:
  1. The approach of the appellant is manifestly unfair to the third to ninth respondents.  It is impossible for them to tell which submissions relate to which grounds.  Further, the failure to comply with the Directions Order makes it impossible to understand which findings of fact are attacked and what findings of fact the appellant submits ought to have been made.  This denies the third to ninth respondent the proper opportunity to respond to the appeal.
  2. The approach of the appellant makes it almost impossible for the Court to properly exercise the appellate function.  In circumstances where it is impossible to tell which submissions relate to which grounds and which findings of fact are said to be erroneous, the Court is at risk of inadvertently not dealing with an argument advanced or misapprehending the application of a particular submission to any particular ground of appeal.
  3. In circumstances where the appellant has not complied with the Directions Order, nor filed an outline which is easily understandable in light of the appeal grounds, the third to ninth respondents have proceeded on the basis that the appellant no longer specifically advances the grounds of appeal in the draft Notice of Appeal and instead relies on the errors asserted in the submissions.  Accordingly, the third to ninth respondents outline will hew closely to the matters raised in the appellant’s outline.
  1. [102]
    The Council made a similar point in its submissions.[130]
  1. [103]
    In her written submissions in reply, filed on 9 October 2023 ('Ms Kelsey's reply submissions'), Ms Kelsey submitted:
  1. In any event, there is no unfairness to any of the respondents in the careful and methodical way Ms Kelsey has sought to support those grounds of appeal that she continues to pursue (see KS[131] [14] and [15]).  If the respondents are uncertain about the case that they have to meet in the appeal (cf. IRS [7] and LLC [12]-[13]), and it is apparent from the extensive submissions that they are not, there are three days of hearing time set down when any such uncertainty can be clarified.
  2. Otherwise, if the errors alleged by Ms Kelsey are properly characterised as errors of mixed law and fact, then it is the case that the KS did not strictly comply with his Honour’s directions.  The KS does attack certain factual findings made by the Commissioner (in the context of demonstrating foundational legal errors).  However, for the most part, the KS (and Ms Kelsey’s grounds of appeal) focus on what the Vice President’s reasons fail to do.  In those circumstances, it would have been unnecessarily burdensome and led to great repetition and prolixity had Ms Kelsey strictly complied with paragraph 3(b) of the directions.  As against that, and as already dealt with above, there is no material prejudice to the respondents in the manner in which Ms Kelsey has approached her written submissions.  Consistent with paragraph 6 of the directions, Ms Kelsey’s counsel has no intention of departing from the matters dealt with in the KS, and these reply submissions, in the absence of leave.  Ms Kelsey does not contemplate that such leave will be sought.[132]
  1. [104]
    The criticisms made of Ms Kelsey's principal submissions are valid.
  1. [105]
    First, having regard to, in particular, paragraphs 62 to 151 of Ms Kelsey's principal submissions, while she refers to particular parts of the evidence alleged to demonstrate the inadequacy of reasons given by the Vice President, or to demonstrate that the Vice President allegedly failed to grapple with the real strength of the evidence, it is not immediately apparent to which of the argued grounds of appeal those reasons or that evidence relates.
  1. [106]
    Secondly, contrary to Order No. 3 of the Directions Order, an order which was jointly proposed with Ms Kelsey, she did not, in her written submissions, specify the precise findings of fact alleged to be erroneous, the findings of fact which she submits should have been made and how it is such alleged errors may be corrected on appeal.
  1. [107]
    As will be referred to later in these reasons, Ms Kelsey's complaints about alleged inadequacy of reasons and her complaints that the Vice President allegedly failed to grapple with the real strength of the evidence, are based on the contention that Ms Kelsey does not know what the Vice President made of certain evidence, to which she refers in her written and oral submissions before this Court, because his Honour did not refer to that evidence.[133]
  1. [108]
    This approach taken in Ms Kelsey's submissions is, in general, unsatisfactory. Ms Kelsey does not state, with any precision, what the findings of fact should have been as a consequence of the errors of fact she alleges were made by the Vice President.
  1. [109]
    Thirdly, leaving aside Ms Kelsey's failure to comply with Order No. 3 of the Directions Order, in the main, Ms Kelsey's written submissions are not precisely referable to the argued grounds of appeal. Further, Ms Kelsey, in her oral submissions, in addressing paragraphs 62-151 of her principal submissions (where she refers to 'Key evidence going to adequacy of reasons' and '… demonstrating a failure to adequately grapple with the real strength of the evidence', and which deal with 13 separate complaints) did not precisely tie those submissions to the argued grounds of appeal.
  1. [110]
    The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between the parties and, in the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought.[134] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the court in the exercise of its appellate jurisdiction.[135]
  1. [111]
    The submissions that are filed by a party to an appeal should be of a nature which are practicable in the discharge of the Court's appellate task.
  1. [112]
    In Attorney-General (NSW) v Ohlsen ('Ohlsen'),[136] the Full Court of the Federal Court of Australia was faced with an appeal that contained 108 grounds. When the appellant's written submissions were received, the appellant focused upon what were described as '…overarching errors' in the primary judge's findings without identifying the grounds of appeal to which those overarching errors were said to relate. The Full Court stated that while a further document provided (at the request of the Court), which linked the appellant's written submissions to the grounds of appeal, was of assistance, even during oral argument it was difficult to understand how the appellant's submissions related to particular grounds of appeal.[137]
  1. [113]
    The Full Court relevantly stated:
  1. Ultimately, the Court will decide the appeal on the basis of the grounds of appeal as they are articulated. If the State’s submissions stray beyond the grounds of appeal, or were not in reality able to be tied back to the grounds of appeal, submissions of that kind are unlikely to be able to establish error on the part of the primary judge, as the error is alleged in the grounds of appeal. Particularly in a complex appeal with so many grounds, there is a responsibility on the moving party to ensure that its submissions are plainly tied to the way the grounds of appeal are expressed. Otherwise, the discharge of the appellate task becomes impracticable.
  1. [114]
    In Fifteenth Eestin Nominees Pty Ltd v Rosenberg ('Rosenberg'),[138] the Victorian Court of Appeal was dealing with an appeal where the appellants relied upon 76 grounds of appeal. The Court determined that, having regard to those grounds of appeal, the appellant contended that there were four errors made by the primary judge.[139] The Court then stated:
  1. 23
    Counsel for the appellants made very lengthy written submissions before the hearing. After the hearing, the appellants filed amended submissions covering 89 pages. Many of the submissions simply repeated the substance of the grounds of appeal. Because of the repetition in both the grounds of appeal and the submissions, we address the essential elements of the complaints rather than dealing separately with each of the grounds of appeal.
  1. [115]
    The way in which Ms Kelsey has presented her written and oral submissions make it difficult for the Court to discharge its function in determining whether or not to grant the application to amend which, in turn, requires a consideration of the argued grounds of appeal. 
  1. [116]
    In fact, at the beginning of the hearing, Ms Kelsey proposed to hand up a 16 page document which cross-referenced the grounds of appeal that she was pressing in her filed written outlines of submissions.[140] Following on from the objections from the Council and the Councillors – because of the breadth of the document and the late provision of it to them (on the morning of the first day of the appeal hearing) – Ms Kelsey did not persist in relying on that document.[141]
  1. [117]
    However, as I have already indicated in paragraphs [43]-[45], and [88], I will adopt the similar course taken in Ohlsen and Rosenberg. I will deal with the categories of complaint addressed by Ms Kelsey to the extent they are referrable to her proposed grounds of appeal about errors of law, and about errors of fact, that she presses.
  1. [118]
    Ms Kelsey also made oral submissions about grounds 13(a) and 13(b) of the proposed grounds of appeal. Ms Kelsey did not file and serve written submissions about proposed grounds 13(a) and 13(b). By Directions Order No. 6, Ms Kelsey requires the Court's leave to make submissions about those proposed grounds. I will deal with proposed grounds of appeal 13(a) and 13(b) later in these reasons.
  1. [119]
    For consistency and ease of understanding, I will quote the headings and sub-headings used by Ms Kelsey in her principal written submissions.

PART FIVE

Part C of Ms Kelsey's principal submissions, proposed ground of appeal 1: 'GROUND 1: SCRUTINISING THE REASONS GIVEN BY THE INDIVIDUAL RESPONDENTS FOR THEIR VOTES'

Is proposed ground of appeal 1 about an error of law or an error of fact?

  1. [120]
    Proposed ground of appeal 1 is:

Evidence relevant to assessing reasons actuating dismissal vote

  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).

The parties' principal arguments

  1. [121]
    Ms Kelsey contends proposed ground of appeal 1 is about an error of law.[142]
  1. [122]
    In her principal submissions, Ms Kelsey submitted:

C.1 Summary of the error

  1. The key question in an adverse action case is 'what is the reason that motivated the impugned conduct?' That is answered by considering all of the relevant evidence and the inferences that might be drawn from it. So much is clear having regard to Bendigo Institute of TAFE v Barclay.
  2. In contrast his Honour's review of the evidence proceeded from the following premise.
  1. '[803]
    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.' (emphasis added)
  1. His Honour could not logically determine whether particular reasons were 'genuine' without considering whether they were fair, reasonable or justified.

C.2The task before the Vice President

  1. It is the case that neither the Council nor the individual respondents bore a legal onus to prove that a step that they took was reasonable, or that a professed reason for their actions was fair or justified. However, if an adverse action is out of all proportion with 'lawful' reasons said to have motivated it, or the alleged 'lawful' reasons for an adverse action are capricious, irrational or proceeded on a factual basis that did not exist (or which it would be unfair to proceed on), those matters will be evidentiary facts relevant to assessing whether the lawful reasons proffered by a respondent actuated their conduct (to the exclusion of any proscribed reasons).[143]
  1. [123]
    For this proposition, Ms Kelsey referred to the decisions in Gibbs v Palmerston Town Council ('Gibbs')[144] and National Tertiary Education Union v Royal Melbourne Institute of Technology ('NTEU').[145] Ms Kelsey also cited the decision of Snaden J in Serpanos v Commonwealth of Australia ('Serpanos')[146] emphasising paragraph [126] of that decision which referred to an earlier decision of Snaden J in Wong v National Australia Bank Limited.[147]
  1. [124]
    Ms Kelsey then  submitted that:
  • throughout his Honour's review of the evidence, the Vice President failed to '… forensically assess whether the reasons given by the individual respondents had a rational or factual basis, or whether they were a satisfactory explanation for the respondents' decisions to vote and act as they did';[148] and
  • for the most part, the evidence of the individual respondents was '… merely recited by the Vice President' without being tested to any great degree by the evidence that was before his Honour with the obvious inference to be drawn being that the Vice President felt that his assessment was confined in the way expressed in paragraph [803] of the Primary Decision.[149]
  1. [125]
    In her oral submissions, Ms Kelsey submitted:
  • while the Vice President was required to look at the evidence given by the Councillors, and make a determination about what their state of mind was as to the reasons for taking adverse action against Ms Kelsey, by putting aside an assessment of whether those reasons were rational or appropriate or justified, the Vice President was undertaking a different analysis;[150]
  • in undertaking the task of examining the reasons given by the Councillors for voting to terminate Ms Kelsey's employment, the Vice President had to look at all the evidence which includes assessing the unfairness or lack of fairness of the decision, whether it was rational and whether it was justified;[151] and
  • his Honour, as stated in paragraph [803] of the Primary Decision, held that matters of fairness, rationality and justification should be set aside completely such that the Vice President started from the wrong position.[152]
  1. [126]
    In Ms Kelsey's reply submissions, she referred to the decision of the Full Court of the Federal Court of Australia in Elliott v Kodak Australasia Pty Ltd ('Kodak').[153] In that case, the appellant was employed by Kodak, was elected as a union delegate and was subsequently selected to be dismissed as part of a redundancy process. Before the Court at first instance, the appellant argued that his dismissal was for a prohibited reason, namely, his position as a delegate of his union, which was contrary to s 298K(1) of the Workplace Relations Act 1996.
  1. [127]
    The appellant's case was dismissed at first instance. On appeal, one of the grounds was that the trial judge was wrong to find that the evidence adduced on behalf of the appellant did not bear on whether the respondent had not discharged the onus on it and that the trial judge should have taken into account evidence called by the appellant in determining whether or not the respondent had discharged that onus.[154]
  1. [128]
    In allowing the appeal, Lee, Madgwick and Gyles JJ stated:
  1. 31
    All these submissions may be accepted as far as they go. They do not, however, grapple with the problem that, in deciding whether to accept or reject the evidence of the witnesses called by Kodak, his Honour did not weigh up the evidence led on behalf of the appellants. This is a similar type of error to that identified by the High Court in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, in a case where the trial judge had rejected the plaintiff’s case because he formed an unfavourable view of the credit of a witness based upon cross-examination, without taking into account a body of other evidence which was not challenged, together with the failure of the defendant to call evidence. (See particularly: Gaudron, Gummow and Hayne JJ at [62]-[64].)
  1. 32
    The problem referred to above is illustrated by a passage that occurs in [86] of his Honour’s reasons. His Honour accepted that Lay gave Elliott a low score in relation to the criteria of “Good team player” and “Resolves conflict effectively” by having regard to (inter alia) Elliott’s alleged shouting at Lay on 10 May 2000 that Lay could not be trusted. In [86] his Honour said:

…whether Mr Elliott shouted or not is not germane to whether Kodak has discharged its onus under s 298V of the Act…

If it were concluded on the whole of the evidence that the incident upon which Lay purported to rely in making the assessment did not happen, either at all or as he described it, that circumstance would at least be relevant to an assessment of the veracity of Lay’s evidence as to his reason for the ranking. One possible explanation in those circumstances would be that Lay had fabricated incidents to justify a low ranking which was, in fact, based upon the prohibited reason. The point, however, goes beyond an individual instance. The question at issue was the bona fides of the ranking of Elliott. This cannot be judged in isolation from either the conduct of Elliott which was relied upon for the ranking, or the history of Elliott’s employment by Kodak, which covered a period of 18 years and included promotions on merit. After all, the ranking was designed to assess the value of the various employees to Kodak. It is an issue of broad assessment in which impression and even intuition may play a part. If, on the totality of the evidence, it may be inferred that Elliott became regarded by Kodak as less valuable as an employee after he became an active union delegate, such an inference could be taken into account in determining whether, on the balance of probabilities, Kodak had established that its reasons for dismissing Elliott did not include the reason that Elliott was a union delegate.

  1. [129]
    Ms Kelsey submitted:

So, your Honour, I hope I can say the force of Kodak is this: the primary judge decided that there were parts of the evidence that he didn’t need to take account of and those parts - those evidentiary matters dealt with run-ins that the union official had with people who ultimately decided to - well who gave him negative performance ratings. And the full court said you’ve got to look at all the evidence. And that’s what I’m suggesting did not happen here, your Honour. And it’s not so much inadequacy of reasons put in this context because in 803 his Honour, as I say, unequivocally, set aside questions of fairness and reasonableness and particularly the question of whether the performance concerns were - had a proper basis. And that point is really made good best by looking at the Hunter Report, which I’ve dealt with in my written submissions and shall come to shortly.[155]

  1. [130]
    In her oral submissions in reply, Ms Kelsey submitted that the Vice President applied the wrong test in that he should have considered the fairness of the reasons given by the Councillors as part of his Honour's assessment of whether their reasons were genuine.[156]
  1. [131]
    The Councillors submitted that:
  • proposed ground of appeal 1 proceeds from a misconception in that the relevant question for determination was whether a substantial and operative reason for acting was a proscribed one;
  • at paragraph [754] of the Primary Decision, the Vice President correctly described his task in respect of the matter, namely, to enquire into the asserted reason of the Councillors voting to terminate Ms Kelsey;
  • at paragraph [803] of the Primary Decision, the Vice President held that the characterisation of reasons as fair, reasonable or justified was not relevant to the question of whether those reasons included a proscribed reason;
  • the last two sentences in paragraph [803] of the Primary Decision make it clear that his Honour properly understood that his task was to determine what the decision-makers' real reasons were and that his task was not to characterise that conduct and reason backward from that characterisation;
  • paragraph 25 of Ms Kelsey's principal submissions (set out above in these reasons) is wrong and inconsistent with the approach in Construction, Forestry, Mining and Energy Union and Another v Anglo Coal (Dawson Services) Pty Ltd ('Dawson Services');[157]
  • the four single judge decisions of the Federal Court, cited by Ms Kelsey:
  1. –
    are not authority for the proposition that the Vice President must have determined first whether the reasons were fair, reasonable or justified;
  2. –
    are, at their highest, authority for the proposition that demonstrated unfairness or illogicality might, in the circumstances of the particular case, suggest that the asserted reasons are not the genuine reasons; and that those cases do not require '…an anterior enquiry into the objective characterisation of the reasons'; and
  • it was apparent, from the last two sentences of paragraph [803] of the Primary Decision, that the Vice President properly understood the nature of his enquiry.[158]
  1. [132]
    The Councillors then submitted:
  1. Properly understood, Ground 1 does not describe legal error. It describes an asserted error of fact. As French CJ and Crennan J said at [45] in Barclay, the question of why a person acted is a question of fact.  The asserted error in Ground 1 clearly falls into the third category described by Glass JA in Azzopardi. That is, where the law is correctly stated and the facts applied to it “It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open.” [at 157B].  The appellant does not even attempt to assert that that stringent test is satisfied.
  1. [133]
    In my view, the criticism by the Councillors, that proposed ground of appeal 1 is really about an alleged error of fact, and not about an alleged error of law is correct. This is for six principal reasons.

Kodak is not authority for the proposition in proposed ground of appeal 1

  1. [134]
    First, Kodak is not authority for the proposition that, as a matter of law, when assessing the reasons that the Councillors said actuated their decision to vote for the termination of Ms Kelsey's employment, the fairness, reasonableness or justification of those reasons must be examined. Kodak is authority for the proposition that in assessing the reasons given for taking adverse action, evidence that may tend to prove if the reasons were genuine must be considered. Thus, Kodak is an example of the type of error of fact referred to by the High Court in State Rail Authority of New South Wales (in liq) v Earthline Constructions Pty Ltd ('Earthline').[159] In Earthline, the primary judge made a finding that the principal witness for the State Rail Authority of New South Wales, from her oral evidence, was unreliable when there was other unchallenged affidavit evidence, documentary evidence and evidence from accountants, that was not taken not account by the trial judge, which supported the central allegations made by that witness.[160] 

An error of the kind referred to in Earthline is not an error of law

  1. [135]
    Secondly, Ms Kelsey submitted that, even though the allegation was that the Vice President did not assess evidence about the fairness, reasonableness or justification of the Councillors' reasons to dismiss her, proposed ground of appeal 1 nevertheless involves an (alleged) error of law.[161] 
  1. [136]
    Ms Kelsey, in written and oral submissions, argued that an error of the kind referred to in Earthline was an error of law.[162]
  1. [137]
    Although Ms Kelsey raised this argument more in relation to her complaints about alleged errors of fact (namely, that the Vice President, because of key evidence, demonstrated a failure to adequately grapple with the real strength of the evidence[163]) Ms Kelsey also, as I understand her submissions, tied this argument back to proposed ground of appeal 1.[164] That is, as I understand Ms Kelsey's argument, by the reasons given in paragraph [803] of the Primary Decision, the Vice President erred in law as part of his Honour's assessment of whether the Councillors' given reasons (to vote to dismiss her) were genuine, because his Honour excluded consideration of evidence that may tended to have proven the unfairness or unreasonableness or lack of justification in the Councillors' reasons.[165]
  1. [138]
    For this reason, it is convenient to deal with Ms Kelsey's submission at this point.
  1. [139]
    Ms Kelsey referred[166] to the decision of the New South Wales Court of Appeal in Sharman v Boshell ('Sharman').[167] That case involved an appeal from a decision of the District Court of New South Wales that dismissed an action for damages for negligence in a sterilisation procedure. Before the Court of Appeal, it was agreed that the question before the trial judge was purely a question of fact.[168] The members of the Court of Appeal found that material and credible oral testimony of Dr Parker was not taken into account in a critical aspect of the reasoning of the trial judge. In this regard, MW Campbell AJA, with whom Tobias JA at [1] agreed and Basten JA at [2] generally agreed, stated:
  1. [124]
    If the Judge did overlook the evidence and the issues it raised then so doing was an error of law which, in the circumstances of this matter, calls, in my opinion, for the setting aside of the verdict and judgment. In that event the Judge had “failed to give sufficient attention to all the evidence of the case.......” (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 per Gaudron, Gummow and Hayne JJ at [62]).[169]
  1. [140]
    The Councillors submitted that this passage should not be taken as a determination that an error of the kind referred to in Earthline is an error of law. The Councillors' submission about this issue were that:
  • when regard is had to the emphasised part of the decision of MW Campbell AJA referred to above, his Honour was not only referring to the fact that the trial judge overlooked evidence, but that the trial judge also overlooked the issues that evidence raised, such that the error of law to which reference was made was the trial judge not dealing with a central question in the case;[170] and
  • in the alternative, it is not clear what MW Campbell AJA meant because the New South Wales Court of Appeal could determine if there were errors of law or fact, and if his Honour did make such a determination, then it was obiter.[171]
  1. [141]
    In my view, the emphasised part of the decision of MW Campbell AJA is ambiguous and does not clearly state that an error of the kind referred to in Earthline is an error of law. Indeed, it would be inconsistent with long established authority if that was the case. This is because:
  • where there is evidence of a fact, the question of whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish a fact, is itself a question of fact and not a question of law;[172] and
  • there is no error of law in simply making a wrong finding of fact.[173]
  1. [142]
    I was not referred to, and I have been unable to find, any authority where the emphasised part of the decision of MW Campbell AJA in Sharman has been applied or accepted as authority for the proposition that an error of the kind referred to in Earthline is an error of law. For all these reasons, I do not accept Ms Kelsey's submissions about this discrete issue.

The decisions in Gibbs, NTEU and Serpanos are not authority for the proposition in proposed ground of appeal 1

  1. [143]
    Thirdly, the other cases cited by Ms Kelsey in her principal submissions are not authority for the proposition in proposed ground of appeal 1. 
  1. [144]
    In Gibbs,[174] the issue was whether the Council  had  dismissed  two employees for reasons that included their membership of a union and that they were seeking better industrial conditions.[175] Under the relevant provisions of the Conciliation and Arbitration Act 1904, the Council had the onus to prove its conduct was not actuated by the proscribed reasons. At pages 54-55 of the reasons for decision, Gray J stated:

As a matter of logic, s. 5(4) of the Act does not impose on an employer charged with an offence under s. 5 the burden of showing that it had a reason, good or bad, for dismissing an employee. It is sufficient if the employer concerned establishes that it was not actuated by any of the proscribed circumstances charged. No doubt, however, the failure of an employer to advance a positive reason to justify a dismissal must make it more difficult to satisfy the onus than if a reason is advanced. Further, the existence of a genuine reason, established as a matter of evidence, justifying the dismissal, must give an employer the best possible defence against a charge under the section. The advancement of a reason which is found to have been non-existent in fact may render the employer's task of establishing innocence more difficult. As the Commonwealth Industrial Court said in Atkins v. Kirkstall-Repco Pty. Ltd. (1957) 3 F.L.R. 439, at p. 441:

"Provided that the company shows on the evidence that it was not actuated in dismissing White because he was a union delegate, it is of course unnecessary for it to prove why it dismissed him, or whether it did so on reasonable grounds, but at the same time when it advances a reason of dismissal, the reasonableness of its conduct may be of importance in weighing the truth of the evidence which its officers give as to what actuated the dismissal."

In the present case, the defendant made no real attempt to establish any facts which would have justified dismissal of either Mr. Richardson or Mrs. Hooper.

  1. [145]
    The decision is authority for the proposition that the reasonableness of the employer's conduct may be important in weighing the truth of the evidence given by an employer's witnesses as to what actuated their conduct. This concerns the assessment of evidence in coming to findings of fact.
  1. [146]
    The same may be said of NTEU.[176] In that case, an employee was dismissed for reasons due to redundancy. The question was whether the dismissal was contrary to s 340(1)(a)(ii) of the Fair Work Act 2009 because the employee had exercised workplace rights. However, in that case, there is no part of the decision of Gray J which is authority for the proposition that, in determining such a claim under the Fair Work Act 2009,  there must be an objective assessment of the reasonableness, fairness or justification of the reasons advanced by the respondent for taking the action against the applicant.[177] That case was one very much decided on its facts about the evidence led by the employer.[178]
  1. [147]
    Next, Ms Kelsey relied on Serpanos.[179] In that case Snaden J stated:
  1. 123.But that is not the law as it currently stands.  The case law emerging from this court, even after Barclay, BHP Coal, Endeavour Coal and Hall leaves no room for doubt:  in assessing the reasons for which conduct amounting to adverse action was engaged in, the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level.  That threshold level has been described as “indispensable” (Kodak), “material” (Clermont Coal, Qantas) and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’” (Wong).
  2. 124.With that analysis complete, the following points of principle can be stated.  A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn.  The question for determination starts and ends with whether, in fact, those reasons actuated that conduct.  It is not necessary for a respondent to prove that the reasons for which it did as it did were procedurally or substantively fair:  Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ).  At issue is simply whether they were, in fact, the reasons that animated that conduct.
  3. 125.That is an inquiry in two parts:  first, were the nominated reasons matters of opinion or belief that formed in the mind of the respondent (or, in the case of bodies corporate, those of its relevant human agents); and, second, did they positively inspire the respondent then to engage in the relevant conduct?  If both questions are answered in the affirmative (and if there be no other reasons for which the relevant conduct was engaged in), it is irrelevant that the respondent’s reasons might be impugned as unfair or illogical or otherwise liable to criticism.  A claim under Pt 3‑1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”:  Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
  4. 126.That is not to say, however, that any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant.  In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:

In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly–that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism–that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both).  Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act.  But, regardless, the inquiry remains:  did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

  1. 127.Similarly, where the reasons for which a respondent claims to have conducted itself were formed in consequence of a process that was tainted by obvious or significant shortcomings, that too might, in the right circumstances, ground a finding that they did not, in fact, form in the mind or minds of those who effected–or substantially or indispensably or significantly or materially contributed to–the conduct, and/or did not, in fact, actuate or partially actuate it.
  1. [148]
    The decision in Serpanos does not elevate the drawing of inferences from evidence that may show a respondent's reasons were formed wrongly or unfairly, which may then lead to the rejection of the respondent's (employer's) evidence about the reasons for the taking of adverse action, into a principle of law that there must be an objective assessment of the reasonableness, fairness or justification of the respondent's reasons for taking the action.  Again, the passages of this case relied upon by Ms Kelsey are about the assessment of evidence in coming to findings about facts.
  1. [149]
    The Councillors submitted that these cases as cited by Ms Kelsey are, at their highest, authority for the proposition that demonstrated unfairness or illogicality might, in the circumstances of a particular case, suggest that the asserted reasons by a respondent are not genuine.[180] Similarly, the Council submitted that these cases are authority for the proposition that in some circumstances, it may be possible to construe that a reason proffered by decision maker for an action was so unfair and unsupportable that it cannot be reasonably accepted that the decision maker actually held those reasons as genuine.[181] For the reasons I have given, these submissions must be accepted.

Whether the Councillors' vote was because Ms Kelsey had exercised a workplace right is a question of fact

  1. [150]
    Fourthly, the question of whether the Councillors' voted the way they did, because Ms Kelsey had exercised a workplace right, is a question of fact.
  1. [151]
    Section 285 of the IR Act provides:
  1. 285
    Protection
  1. (1)
    A person must not take adverse action against another person–
  1. (a)
    because the other person–
  1. (i)
    has a workplace right; or
  2. (ii)
    has, or has not, exercised a workplace right; or
  3. (iii)
    proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. (b)
    to prevent the exercise of a workplace right by the other person.

Note–

This subsection is a civil penalty provision.

  1. [152]
    Section 306 of the IR Act relevantly provides:
  1. 306
    Reason for action to be presumed unless proved otherwise
  1. (1)
    Subsection (2) applies if–
  1. (a)
    in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
  2. (b)
    taking that action for that reason or with that intent would be a contravention of the provision.
  1. (2)
    It is presumed that the action was, or is being, taken for that  reason or with that intent, unless the person proves otherwise.
  1. [153]
    In Board of Bendigo Regional Institute of Technical and Further Education v Barclay ('Barclay'),[182] French CJ and Crennan J stated of the equivalent provisions in the Fair Work Act 2009:
  1. 44
    There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a  decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
  2. 45
    This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
  1. [154]
    Having regard to s 285(1)(a)(ii) of the IR Act, the question of whether another person has taken adverse action against another person because the other person has, or has not, exercised a workplace right, is a question of fact. This is because, in applying the statutory expression to primary facts, it is reasonably possible to arrive at different conclusions, the question being one largely of degree upon which different minds may take different views.[183]
  1. [155]
    In Azzopardi Tasman UEB Industries Limited ('Azzopardi'),[184] Glass JA relevantly stated:

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

…

Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is  only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.[185]

  1. [156]
    As the Councillors submitted[186] by reference to the decision of Glass JA in Azzopardi, Ms Kelsey, in asserting that proposed ground of appeal 1 deals with an error of law, did not address the consideration of whether, in applying the statutory test in s 285(1)(a)(ii) of the IR Act, any other application was reasonably open.

The decision in Dawson Services

  1. [157]
    Fifthly, at paragraph 25 of Ms Kelsey's principal submissions, she submitted that if the alleged lawful reasons for an adverse action are capricious, irrational or proceeded on a factual basis that did not exist, or which it would not be fair to proceed on, those matters will be '…evidentiary' facts relevant to assessing whether the lawful reasons proffered by a respondent actuated their conduct, to the exclusion of any proscribed reasons. Ms Kelsey's argument is that the consequence of a failure to consider evidence that may tend to prove such matters gives rise to an error of law.[187] The Councillors submitted[188] that this submission by Ms Kelsey was wrong and was inconsistent with the approach in Dawson Services.[189] 
  1. [158]
    In that case, the employer's conduct was unfair because a wrong presumption was made by the employer that the employee was dishonest in relation to the taking of sick leave. However, as stated by Rangiah J:
  1. 134
    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 decision-maker 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.
  1. [159]
    The submission made by Ms Kelsey is inconsistent with the settled approach to the application of the equivalent provisions in the Fair Work Act 2009.[190] The use of the word 'because' in such provisions '… connotes the existence of a particular operative reason as an operative and immediate reason for taking adverse action.'[191] Even if the proven reason for taking adverse action, while genuine, was wrong, that does not mean that a respondent has failed to discharge the onus on them. As Gageler J stated in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd ('BHP Coal'):

Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.[192]

  1. [160]
    The risk of taking the approach that is pressed by Ms Kelsey has been recognised in a number of cases. In BHP Coal, French CJ and Kiefel J stated:
  1. 9.However, s 346 does not involve an objective test. In Bendigo, Gummow and Hayne JJ explained  that it is misleading to use the terms “objective” or “subjective” to describe the inquiry in s 346. To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker.[193]
  1. [161]
    A somewhat similar issue was dealt with by the Full Court of the Federal Court in Monash Health v Singh.[194]
  1. [162]
    In that case, the applicant's position was made redundant and he was dismissed. Before the court at first instance, in which the applicant was successful, he argued that, in truth, he was dismissed in contravention of the Fair Work Act 2009 because of employment complaints he made. On appeal, one of the grounds pursued was whether the primary judge substituted her own view or opinion for the respondent's actual reasons.[195]
  1. [163]
    In determining this ground of appeal was made out, the Court held:
  1. 124
    The primary judge concluded that the combined effect of the authorities in Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251, Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 and Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 was such that (J at [82]):

[T]he court is entitled to examine the motivations for the process that led to Mr Singh’s dismissal, including the restructure. It would be naïve to confine the enquiry to just the last step, which could have been manufactured to produce an inevitable result. In theory at least, the reasons that Monash Health took the earlier steps in the process could be highly relevant in determining its reason for the adverse action consisting of the dismissal.

  1. 125
    Accordingly, the primary judge did not exclude the possibility that the “motivations for the process” that led to Mr Singh’s dismissal, including the restructure could be taken into account.

…

  1. 129
    However, her Honour’s conclusions as to whether Monash Health had discharged its burden were premised on Monash Health’s purported failure to adequately explain certain matters which arose from the primary judge’s assessment of the evidence applying an erroneous “objective” test as to “whether it was necessary to dismiss” Mr Singh rather than “why Monash Health decided to dismiss” him.
  1. [164]
    The material issue in that case is not exactly the same as that argued by Ms Kelsey. There is no suggestion that the Vice President conducted his assessment of the evidence by applying an erroneous objective test. Indeed, for the reasons given later in paragraph [382], his Honour did not. However, the determination by the Full Court that it was erroneous for the primary judge to consider whether it was necessary for Monash University to dismiss Mr Singh – or to adapt Ms Kelsey's description, whether the dismissal was fair, reasonable or justified –  is apposite.

The Vice President, in the last two sentences of paragraph [803] of the Primary Decision, correctly described the task

  1. [165]
    Lastly, proposed ground of appeal 1 misses the point that the Vice President, in the last two sentences of paragraph [803] of  the Primary Decision, correctly described the task before his Honour; namely, that the employer's reasons for terminating an employee's employment was to be determined by what the decision maker or makers knew or believed at the time of the dismissal and if the stated reasons were genuine. This was clearly directed at the legal test to be applied in Ms Kelsey's case because, in the paragraph that immediately followed paragraph [803], his Honour referred to the judgment of Rangiah J in Dawson Services[196] (discussed earlier) so as to illustrate the point made in paragraph [803].
  1. [166]
    As the President of this Court stated in Kelsey v Logan City Council & Ors:[197]
  1. [120]
    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.
  2. [121]
    The Vice President’s comments, made at paragraphs [803] and [804], 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.
  3. [122]
    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.
  1. [167]
    As the Councillors submitted, correctly in my view:
  • evidence of unfairness may be taken into account in determining the credit of a respondent,[198] but the enquiry under the IR Act is what motivated a respondent to act;[199] and
  • the Vice President, at paragraphs [21]-[24], [74]-[84] and [749]-[754] of the Primary Decision, accurately identified the relevant question for determination and the legal principles.[200]
  1. [168]
    In particular, at paragraph [754], the Vice President stated:
  1. [754]
    Based on the authorities, the issue is whether the First Respondent has satisfied me that none of the reasons for Ms Kelsey's termination included a proscribed reason.  It is for the Commission to determine the actual reasons why the Third to Ninth Respondents voted to terminate Ms Kelsey's employment.[201]
  1. [169]
    In my opinion, by the reasons the Vice President gave in paragraph [803] of the Primary Decision, the Vice President did not err in law in describing the task his Honour had to undertake. Further, the Vice President did not misunderstand what he had to determine in deciding Ms Kelsey's application for final relief.
  1. [170]
    As correctly submitted by the Council,[202] when regard is had to paragraph [803] of the Primary Decision, the Vice President was referring to a submission made by the Councillors that Ms Kelsey's application for final relief was not an unfair dismissal case, where the fairness or otherwise of the grounds is determinative, and that considerations of that kind were not appropriate in determining Ms Kelsey's application for final relief.
  1. [171]
    As the Council further submitted,[203] again, correctly in my view, by the Vice President's reasons at paragraph [803]:
  • his Honour did not exclude the possibility that if the reasons given by the Councillors were so obscure, outlandish and unsupportable, they may not be found to be genuine; and
  • his Honour did not state that he would exclude any consideration of evidence that may tend to prove the stated reasons of the Councillors were not genuine.
  1. [172]
    For the reasons I discussed above about the reference in paragraph [804] of the Primary Decision to the judgment of Rangiah J in Dawson Services,[204] the Vice President was cognisant of the distinction between genuine and non-genuine reasons.
  1. [173]
    The Council's further submission[205] was that the possibility that a stated reason (for taking adverse action) may have attributes which are so extreme or unfair that it cannot be regarded as genuine, is about the quality of the evidence as opposed a matter of legal principle as to how the IR Act operates. That submission is clearly correct.  It is correct for the reasons I have given in paragraphs [134]-[172] of these reasons.

Ms Kelsey's other arguments

  1. [174]
    In respect of proposed ground of appeal 1, Ms Kelsey, in her principal submissions, referred to the evidence given by the five other councillors who supported her continued employment including the evidence of Councillor Darren Power                           ('Cr Power') '… that squarely impugned the bona fides of the various reasons given by the individual respondents' and that the other four councillors '… were similarly dismissive of the individual respondents' performance concerns' (about Ms Kelsey).[206]
  1. [175]
    These submissions were made against the general submissions (referred to earlier in these reasons at paragraph [124]), that:
  1. –the Vice President failed to forensically assess whether the reasons given by the Councillors had a rational or factual basis, or whether they were a satisfactory explanation for the Councillors' decisions to act and vote as they did; and
  2. –the Councillors' evidence was merely recited by the Vice President, without being tested to any great degree by the evidence.
  1. [176]
    These submissions by Ms Kelsey proceed on the erroneous basis that proposed appeal ground 1 involves an alleged error of law. These submissions are, in my view, about alleged errors in the assessment of the evidence as opposed to any error in the application of legal principle as to how Ms Kelsey's application for final relief should have been determined.
  1. [177]
    Ms Kelsey also submitted[207] that the Hunter report was important evidence which was critical in scrutinising the reasons given by the Councillors to vote to dismiss her, and that the Vice President did not undertake any real assessment of it. Again, for the reasons given above, the complaint encompassed in proposed appeal ground 1 actually describes an alleged error of fact and not an alleged error of law. The submissions Ms Kelsey makes about the Hunter report are about alleged errors of fact. Ms Kelsey's ultimate contention about these matters is summed up from the following exchanges:

MR ZIELINSKI: Well, your Honour, he took the fact of the Hunter Report into account in a broad and, in my submission, unsatisfactory way. Because he took notice that it existed, he took notice that the councillors disregarded it, but didn’t scrutinise why they disregarded it, whether it was - -

HIS HONOUR: That’s an error of fact, isn’t it, that you’re alleging there?

MR ZIELINSKI: Well, in my submission, it isn’t, because it deals with - falls again into this error of that I’m trying to make good vis-à-vis the paragraph 803 and it’s also an error in the sense that there’s no reasons explained for how his Honour grappled with the report and what he made of it, not what the individual councillors made of it, but what he made of it in scrutinising their alleged lawful reasons. That’s the point.

DEPUTY PRESIDENT:

The wider review involving the Hunter process gave those involved, in particular, the Third to the Ninth Respondents, the opportunity to reflect on Ms Kelsey's performance and to determine whether her employment ought to be extended beyond the probationary period. Ultimately, the Third to Ninth Respondents chose not to do so.

MR ZIELINSKI: That’s so, your Honour. What I’m saying is missing is an assessment of whether that was a fair, reasonable, rational step. As I say, his Honour might have reconciled those points, he might have said that they are right to think that council officers views didn’t have any weight or any significant weight. He might have said that they were motivated by some closeness to Ms Kelsey that gave their views lower weight. He might have said a number of things that could explain how he reconciled the glowing performance reviews that Ms Kelsey received in that as against the extremely harsh views that were said to have been reached by the individual respondents in respect of her performance and conduct.[208]

  1. [178]
    In fact, Ms Kelsey made a general submission that even if proposed ground of appeal 1 was not made out, by reference to the decision in TechnologyOne Limited v Roohizadegan ('TechnologyOne'),[209] the Vice President erred in fact by not considering the evidence of the other non-respondent councillors (and other evidence she refers to under Part D of her principal submissions).[210] I will address those submissions later in these reasons.

Proposed ground of appeal 1 does not allege an error of law

  1. [179]
    In her principal submissions, Ms Kelsey submitted:

[T]hroughout his review of the evidence, and as is dealt with further below, the Vice President failed to forensically assess whether the reasons given by the individual respondents had a rational or factual basis, or whether they were a satisfactory explanation for the respondents' decisions to act and vote as they did.[211]

  1. [180]
    An assessment of the reasonableness, fairness or justification of the Councillors' decisions is not a legal element of the combined effect of s 285(1)(a)(ii) and s 306(2) of the IR Act. In her reply submissions Ms Kelsey conceded this point.[212] Yet, Ms Kelsey went on to submit that if the Vice President did not have regard to whether the Councillors' reasons were fair, reasonable or logical '… as evidential matters that influenced his assessment of their decision making, then he committed an obvious error of law.'[213] For the reasons I have given, that is not correct. This submission, in my view, betrays the conclusion that proposed ground of appeal 1 does not allege an error of law, but alleges an error of fact.
  1. [181]
    Proposed ground of appeal 1 is not made out. No error of law occurred as alleged.
  1. [182]
    Ms Kelsey should not be allowed to amend her application to appeal on that ground.

PART SIX

Part D of Ms Kelsey's principal submissions, proposed grounds of appeal 3 to 10 and 13 to 27: 'GROUNDS 3 TO 10 AND 3 TO 27 ADEQUACY OF REASONS AND MISUSE OF ADVANTAGE'

  1. [183]
    In her principal submissions, Ms Kelsey, by way of overview submitted (citations omitted):
  1. 16.The draft notice of appeal characterises grounds 13 to 27 as errors of mixed law and fact. In truth, they are properly characterised as incidents of related errors of law: being the failure to give adequate reasons, and to conduct a review of the real strength of a substantial body of evidence (the latter drawing on Abalos v Australian Postal Commission (Abalos) and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (Earthline).
  1. [184]
    After then making submissions about the legal principles concerning adequacy of judicial reasoning, and findings made on the assessments of credibility, the two remaining sub-headings of this part of Ms Kelsey's principal submissions are:
  • 'Key evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence' ('the third sub‑heading of Part D') of which the five further sub-headings contained under it concerned Ms Kelsey's alignment claim, namely:
  1. –'Alignment: Misunderstanding the case pressed by Ms Kelsey';
  2. –'Alignment: the content of the WhatsApp messages';
  3. –'Alignment: What the WhatsApp messages did not say expressly, they showed implicitly';
  4. –'Alignment: The 'debate rules'; and
  5. –'Alignment: The Hallam email exchange'; and
  • 'Other evidence going to the adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence' ('the fourth sub‑heading of Part D') of which the eight further sub-headings contained under it are:
  1. –'Assessment of the fairness, reasonableness and rationality of the individual respondents' motivations';
  2. –'Cr Dalley's purported reasons for dismissing Ms Kelsey';
  3. –Cr Breene's purported reasons for dismissing Ms Kelsey';
  4. –'Cr Lutton's purported reasons for dismissing Ms Kelsey';
  5. –'Cr Swenson's purported reasons for dismissing Ms Kelsey';
  6. – 'Cr Pidgeon's purported reasons for dismissing Ms Kelsey';
  7. –'The way the PID complaint was sent'; and
  8. –'Reliance on legal advice'.
  1. [185]
    The assessment of the prospects of success of these categories of complaint addressed by Ms Kelsey require a consideration of:
  • the relevant principles concerning the adequacy of the reasons for decision of a court at first instance; and
  • the relevant principles concerning the circumstances when an appellate court may intervene in findings of fact made at first instance.
  1. [186]
    Before considering those principles, it is convenient to address the discrete issue of delay raised by Ms Kelsey in her written and oral submissions.

Delay

  1. [187]
    Ms Kelsey submitted that the question of delay was related to and necessarily qualifies the principles that govern appellate challenges to decisions on the ground of inadequacy of reasons.[214] Ms Kelsey then submitted that a summary of that relationship (between delay and inadequacy of reasons) was given in part of the judgment of Santamaria JA of the Victorian Court of Appeal in Transport Accident Commission v Campbell,[215] namely:
  1. [84]
    The applicant also pointed to the delay between the completion of the trial and the publication of reasons. It disavowed any contention that one could infer error simply because there was a long delay between the completion of argument and the publication of reasons. Rather, the applicant said that delay may be significant where a judgment had been published that was devoid of analysis or any path of reasoning. The applicant advanced several propositions. First, it said that where there has been a considerable delay, the court should take a more vigilant and stringent view of the judgment. Second, in a credibility case, delay may point to a particular need to give even more detailed reasons. Third, in a credibility case, the fact of significant delay requires a judge to explain how it is that he or she recalls why the credit of a witness has been accepted. Fourth, the fact of significant delay requires a judge to give more comprehensive reasons. Fifth, the fact of significant delay prevents there being an assumption that the judge did not overlook matters; there are no assumptions in a judge’s favour. Sixth, although delay itself does not amount to error, it does permit an appellate court more readily to infer that the judgment bespeaks error. Seventh, such delay requires the judge to give a clear and rational expression of his or her reasoning so as not to give rise to a reasonable apprehension that the judge did not grapple with issues or took the easy path. In MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7), it was decided that one should not speculate that, because there was significant delay, the judge took the easy way out. However, the applicant contended that where there was significant delay, the judge should take particular care not to give rise to the apprehension that that is what has happened.[216]
  1. [188]
    Ms Kelsey concluded by submitting:
  • the onus to show error by reason of the effect of delay is on an appellant, and it is not a matter for the appellate court to merely assume that delay had an operative effect on a decision, recognising that:

'[i]f … reasons are flawed because of a failure to make findings on material questions of fact or to deal with substantial points which have been raised and which should be addressed in the reasons, then an appellate court might conclude that delay in giving judgment contributed to the evidence or submission being overlooked';[217]

  • the delay was not her doing and was partly, if not entirely, due to the Councillors' pursuit of stay applications and appeals; and
  • it would be contrary to the interests of justice for the likely prejudicial effect of that delay to be borne by her.[218]
  1. [189]
    In her oral submissions, Ms Kelsey submitted that:
  • the evidence before the Vice President concluded in February 2019, final oral submissions were made in June 2020 and that the Primary Decision was handed down on 1 April 2021, with the gap between the evidence concluding and oral submissions being made due to related proceedings commenced by the Councillors in this Court and in the Court of Appeal;[219]
  • the Vice President needed to get the decision out '… as quickly as possible';[220] and
  • this Court has to consider whether, because of the delay, the Vice President lost the advantage his Honour had in hearing the evidence.[221]
  1. [190]
    In respect of delay, the Councillors submitted that while there were some months between final submissions and the decision, given the length, complexity and scope of Ms Kelsey's case, and the Commission’s usual workload, it could not be said that the Vice President demonstrated anything other than diligence and expedition.[222]
  1. [191]
    The Council, amongst other submissions about the issue of delay, submitted that the bare assertions that the passage of time taken to hear this case robbed the Vice President of the advantage which his Honour had in seeing and hearing the witnesses, is a superficial and incorrect approach to this matter.[223]
  1. [192]
    The relevant principles about delay are authoritatively set out in Expectation Pty Ltd v PRD Realty Pty Ltd ('Expectation'),[224] Monie v Commonwealth of Australia ('Monie')[225] and in the recent decision of Microsoft Corporation v CPL Notting Hill Pty Ltd ('Microsoft').[226]
  1. [193]
    In Expectation, the Court relevantly held that where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal.[227]
  1. [194]
    In Monie, Hunt A-JA relevantly stated:
  1. 44
    It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge– either because of the time which has passed or  because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at 1694 [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial. That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd (at 32 [69] et seq) to be saying.[228]
  1. [195]
    In some cases, the trial judge may give an explanation for any delay.[229]
  1. [196]
    However, as Monie established, delay itself does not justify an appeal being upheld. Error must still be established.
  1. [197]
    Ms Kelsey referred[230] to the decision of Tattsbet Ltd v Morrow.[231] The delay in that case was between the hearing on 10 October 2012 and 7 July 2014 when written reasons were published. The claim in that case was one made under the Fair Work Act 2009.  Justice Jessup upheld a specific ground of cross appeal, namely that the delay meant there was a real risk the trial judge compromised his ability to determine the credit of the principal witness of the appellant (who made the decision to dismiss the respondent) where the credit finding made was based upon the trial judge's observation of that witness.[232]
  1. [198]
    In Expectation, the final addresses concluded on 16 October 2001 and it was not until 11 March 2003 that reasons were published.[233] The appellant pointed to specific complaints concerning the reasons of the trial judge that it suggested were due to delay. The Full Court summarised those specific complaints, which included that the appellant's case was incorrectly treated as being unsupported by contemporaneous documents or corroboration, critical credit findings made about the appellant's directors and that certain causes of action of the appellant were not considered or determined.[234]
  1. [199]
    In Monie, the delay was more than 17 months after judgment was reserved.[235] The New South Wales Court of Appeal found that delay meant that no confidence could be placed on the trial judge's findings of fact and law, specifically in relation to the rejection of the appellants' case, about the existence of a duty of care, due to the failure to have regard to specific documents[236] and in the assessment of the credit of a specific witness.[237]
  1. [200]
    In Microsoft, the delay between the trial and the primary judgment extended over a period of approximately three years.[238] Justice Nicholas stated:

A delay of that magnitude allows an appellate court more readily to infer that evidence or submissions not specifically addressed in the primary judge’s reasons were overlooked, or that the advantages that a trial judge ordinarily possesses were lost.  Delay in the delivery of judgment must, if it is to justify the setting aside of the judgment on appeal, involve “operative” delay in the sense that the delay must have affected the quality of the decision-making process assessed by reference to the issues, the evidence and the judge’s reasons.[239]

  1. [201]
    Justice Nicholas summarised the appellants' contention about delay, namely:
  1. 121This is not a case in which it was suggested that any finding made by the primary judge was contradicted by incontrovertible facts or uncontested testimony.  The appellants challenged the primary judgment on the basis that evidence given by Ms Li and Mr Pan was “glaringly improbable”.  In support of that submission, they also contended that the delay in the delivery of the judgment affected the decision-making process by weakening the primary judge’s advantage, and also led her Honour to overlook the inherent improbability of the respondents’ witnesses’ evidence as a whole.[240]
  1. [202]
    Ms Kelsey put her contentions about delay at a very broad level, namely:
  • in scrutinising the Primary Decision, the Court should consider whether the Vice President lost the advantage that his Honour had (in hearing and seeing the evidence) due to the gap between when his Honour heard the evidence and gave judgment;[241] and
  • by the end of the (appeal) hearing, this Court:

[S]hould be very cautious about his Honour’s gaps in reasoning and sufficiency of reasons and … the fact that he set aside relevant matters that he ought to have - or was compelled - to take account of, and that delay was something that influenced that because by the time he handed down his judgment, in my submission, the advantage that he had from seeing the whole of the evidence was substantially lost.[242]

  1. [203]
    The issue of delay was not the subject of any written or oral submission by Ms Kelsey that a conclusion about a particular finding of fact or about a particular witness, which was material to any of the categories of complaint she makes about inadequacy of reasons or errors of fact, was compromised by any loss of the advantage enjoyed by the Vice President. Ms Kelsey does not point to particular evidence, findings or reasons in respect of which she contends erroneous consideration was given by the Vice President which was contributed to by his Honour's loss of advantage brought about by the delay between the close of evidence and the Primary Decision. The Court is asked to cautiously view all the categories of complaint (referable to proposed grounds of appeal 3-10 and 13-27 that are pressed by Ms Kelsey) through the broad prism of delay.
  1. [204]
    This makes it difficult for the Court to assess how any delay may have contributed to the errors Ms Kelsey asserts were made. It is of no assistance to the Court for Ms Kelsey to submit, as she does, that it would be contrary to the interests of justice for her to bear the likely prejudicial effect of delay, in the absence of her pointing to  specific identifiable and material errors said to be contributed to by any delay.
  1. [205]
    For these reasons, I accept the submission made by the Council.
  1. [206]
    Leaving that issue aside, I am not persuaded that the time between the close of submissions and the delivery of judgement was operative delay.
  1. [207]
    It is true that the witness evidence concluded on 15 February 2019. Oral submissions, supported by earlier comprehensive written submissions, concluded on 10 June 2020. The passage of time between the close of evidence and the delivery of written and oral submissions was not due to any fault on the part of the Vice President. Supplementary written submissions were then filed on 24 June 2020. The Primary Decision was released on 1 April 2021. For all practical purposes, given the length of the hearing and the volume of documentary evidence, including the significant evidence given in cross-examination, the Vice President could only have started to give proper consideration to the evidence, and to the various issues in dispute, assisted by the final submissions of the parties.
  1. [208]
    There was a nine month period between final submissions being received and the Primary Decision being released. As contained in the ARB, the documentary evidence runs from page 420 to page 4442. The written closing submissions run from page 4550 to page 4972. The trial transcript runs from page 4973 to page 6772. Having regard to the large amount of evidence, and to the detailed written and oral submissions made by Ms Kelsey, the Council, Mayor Smith, and the Councillors, and having regard to the comprehensive and detailed judgment delivered by the Vice President, I am of the view that period of time could not be described as operative delay. No explanation for that period of time needed to be given by the Vice President. In light of the material and arguments the Vice President had to consider, it is obvious his Honour acted with diligence and expedition.  For these reasons, I accept the submissions of the Councillors.
  1. [209]
    In any event, for the reasons I give below, none of the errors about inadequacy of reasons or errors of fact, to which Ms Kelsey refers in the third and fourth sub‑headings of part D of her principal submissions, are made out.

The first sub-heading of Part D: 'D.1 Relevant principles as to adequacy of reasons'

The parties' submissions

  1. [210]
    By reference to paragraphs [107]-[113] of the decision in TechnologyOne,[243] Ms Kelsey submitted that:
  • while a judge is not obliged to spell out every detail of the process of reasoning that they undertook, they must expose the reasons for resolving a point critical to the contest between the parties and a failure to do otherwise will be an error of law;
  • the discharge of the obligation to give adequate reasons is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted, and so that the parties can know why one case is preferred over the other; and where there is conflicting evidence on an important issue, that necessarily requires both sides of that conflict to be referred to and dealt with; and
  • the provision of adequate reasons is critical to allow the exercise of a facility of appeal and reasons that do not adequately disclose a path of reasoning may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed.[244]
  1. [211]
    The Councillors submitted[245] that:
  • the requirement to give reasons does not require a judge to refer to each and every argument that was made to them;
  • judges are required to identify the real issues, explain their conclusions in respect of relevant findings of fact and express any conclusions as to matters of law; and
  • in explaining conclusions about a factual dispute, such as in the present case where particular evidence was accepted, it is not necessary for a judge to refer to each and every argument put to them and why it is discounted.[246]
  1. [212]
    In oral submissions,[247] the Councillors referred to:
  • Kodak[248] where the Court stated that the process of determining if a person was dismissed for a proscribed reason ' … does not necessitate resolving every conflict  which emerged on the evidence, or dealing with every piece of evidence which was tendered. It is necessary, however, to consider the whole of the evidence and deal with it in a conventional fashion'; and
  • TechnologyOne[249] where the Court held that failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon them, however,   '… for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed.'
  1. [213]
    The Council submitted that the general principles applicable to the question of adequacy of reasons as a potential ground of appeal are accepted as generally being as set out in the authorities quoted by Ms Kelsey; and a proper and balanced examination of the basis upon which Ms Kelsey contends that those principles can be applied against the Primary Decision, shows clearly that there is no basis for Ms Kelsey's submission that those principles should lead to the decision of the Vice President being set aside.[250]
  1. [214]
    In oral submissions,[251] the Council referred to Cleal v State of Queensland,[252] and to the proposition from the authorities, referred to in that case, that an appellate court must not be quick to apply a critical magnifying glass to reasons in seeking out error.[253]

The relevant principles

  1. [215]
    In DL v The Queen ('DL'),[254] Kiefel CJ, Keane and Edelman JJ relevantly stated:

Adequacy of reasons

  1. 32
    The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
  2. 33
    The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. 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. In particular:

“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.” [255]

  1. [216]
    The passage in DL at [33], about not requiring a minute explanation of every step in the reasoning, cited the decision of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd where his Honour stated:

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 factual questions and to list the findings on the principal contested issues.[256]

  1. [217]
    Similarly, in DL, Nettle J held:[257]
  1. 131
    Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.

The second sub-heading of Part D: 'D.2 Relevant principles as to findings made on assessments of credibility'

  1. [218]
    All parties, in their written submissions, made submissions about the relevant authorities, in respect to the heading in Ms Kelsey's principal submissions, dealing with the relevant principles as to findings made on assessments of credibility.
  1. [219]
    I will not summarise those submissions. The authorities are clear in relation to such matters.
  1. [220]
    First, a court of appeal is bound to conduct a real review of the trial and of the trial judge’s reasons, and they are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions though they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in that respect: Fox v Percy.[258]
  1. [221]
    Secondly, in particular cases, incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings: Fox v Percy.[259] Such evidence must point decisively, and not merely persuasively, to error in the trial judge in acting on their impressions of the witness or witnesses.[260]
  1. [222]
    In Fox v Percy, the facts were that the appellant was injured when a horse she was riding came into collision with a motor vehicle driven  by the respondent. The crucial factual contest at trial was whether the respondent's motor vehicle was on the correct or incorrect side of the road at the time of impact. There was evidence of skid marks, on the respondent's correct side of the road, which was incontrovertibly established. The trial judge concluded that despite that evidence, the accident happened on the appellant's correct side of the road. That conclusion was reached based upon the appellant's evidence, the rejection of the respondent's evidence and the acceptance of the evidence of two other witnesses, one being an expert. The majority of the New South Wales Court of Appeal set aside the trial judgment on the basis the skid marks were unexplained or insufficiently explained to warrant a conclusion adverse to the respondent. The High Court agreed. As the Councillors submitted,[261] the skid marks were incontrovertible evidence about the critical issue.
  1. [223]
    Thirdly, in rare cases, an appellate court may interfere with a judge’s findings of fact if they are '…glaringly improbable' or '…contrary to compelling inferences'. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.[262]
  1. [224]
    Fourthly, appellate restraint with respect to interference with a trial judge’s findings – unless they are '…glaringly improbable' or '…contrary to compelling inferences' –  is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence; and that includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.[263]
  1. [225]
    As recently stated by Logan J:

In relation to alleged errors in fact finding, an appellate court is required to exercise restraint when a primary judge’s findings of fact depend, to an extent, on impressions as to the credibility and reliability of witnesses formed on the basis of observations of their oral evidence at trial: Fox v Percy (2003) 214 CLR 118, at 127 [26]–[27] (per Gleeson CJ, Gummow and Kirby JJ).[264]

  1. [226]
    Fifthly, as referred to by McHugh J in Abalos v Australian Postal Commission ('Abalos'),[265] unless it can be shown that a judge has failed to use or has palpably misused their advantage, a higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.  In this regard, McHugh J held:

Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion": Watt or Thomas v. Thomas.[266]

  1. [227]
    Earlier in these reasons I referred to the decision in Earthline. That is a case of an example of a judge failing to use or palpably misusing their advantage. In Earthline, Callanan J accepted the appellant's submission that:
  • no different principle from that stated in Abalos needed to be developed or applied; and
  • notwithstanding the advantages that the trial judge had, because the trial judge did not give proper weight to the corroborative effect of the evidence of certain witnesses who were not relevantly cross-examined, the trial judge fell into error.[267]
  1. [228]
    In Doerr v Gardiner,[268] the Queensland Court of Appeal succinctly summarised the principles of appeals by rehearing:
  1. [66]
    The requirement to conduct a real review of the trial record and an evaluation of the trial judge’s reasons may nonetheless warrant this Court drawing its own inferences and conclusions:

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”

  1. [67]
    Whilst the appeal court may draw its own inferences or conclusions from primary findings of fact which are not disputed or which are not affected by error, it is necessary to recognise the “natural limitations” in a review which proceeds “wholly or substantially on the record”.
  2. [68]
    For that reason, there is a recognised reluctance to revisit factual findings which depend on credibility findings.  The appeal court proceeds with restraint when addressing those findings because its review is conducted without the benefit of the opportunities available to the trial judge to evaluate the credibility of each witness and to experience the “feeling” of the conduct of a trial which cannot always be “fully shared” from a reading of the evidence on the page:

“Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (footnotes omitted)

  1. [69]
    Nonetheless, in “some, quite rare, cases” though the facts fall short of being “incontrovertible” the appeal court may decide that the conclusion of the primary judge was “glaringly improbable” or “contrary to compelling inferences”.  As the High Court explained in Lee v Lee:

“A court of appeal 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 trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”

  1. [70]
    In that kind of case the appeal court must conduct its own review, making all due allowance for the advantages available to the primary judge and, if material error is disclosed, the appeal court cannot “shrink from giving effect” to its own conclusion.

The third sub-heading of Part D: 'D.3 Key evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'

  1. [229]
    There are five categories of complaint under this third sub-heading. They concern Ms Kelsey's alignment claim. Ms Kelsey's overall submission (about these categories of complaint) was that the central findings made by the Vice President, '...that there was no material alignment as between the individual respondents and the Mayor, was one that was, at the very least, glaringly improbable, or contrary to compelling inferences.'[269] Ms Kelsey went on to contend that if the Vice President palpably misused his advantage by failing to consider the real strength of a substantial body of evidence put before him, then on the authority of Sharman,[270] he committed an error of law.[271]
  1. [230]
    To understand these five categories of complaint, it is necessary to consider Ms Kelsey's alignment claim as advanced before the Vice President.

Ms Kelsey's alignment claim

  1. [231]
    In her application for final relief, Ms Kelsey alleged that:
  • Mayor Smith and the Councillors were '…politically affiliated with each other' because:
  1. –the Councillors, other than Cr Schwarz, campaigned with Mayor Smith in the 2016 Council election;
  2. –Mayor Smith and the Councillors, other than Councillor Russell Lutton ('Cr Lutton'), held a 'chair' position at the direction or instigation of Mayor Smith until approximately 15 February 2018; and
  3. –Mayor Smith had indicated to the effect that he was '… politically affiliated or aligned with' the Councillors;[272]
  • the Councillors '… were each aligned' with each other and with Mayor Smith in relation to the '… performance, probation processes and employment matters' of Ms Kelsey in that:
  1. –Mayor Smith and the Councillors were politically aligned as earlier alleged;
  2. –Mayor Smith and the Councillors had adopted similar or identical positions and voting patterns in relation to Ms Kelsey's employment;
  3. –Mayor Smith and the Councillors had met between 12 October 2017 and 7  February 2018 without inviting the remaining (non-respondent) councillors in relation to the performance, probation and other employment matters of Ms Kelsey;
  4. –the Councillors voted to terminate Ms Kelsey's employment without discussions with the remaining (non-respondent) councillors; and
  5. –given Mayor Smith's actions in relation to Ms Kelsey, as contained in the application for final relief, '…  it can be inferred that' Mayor Smith ' … was in favour of the termination of' Ms Kelsey's employment;[273] and
  • Mayor Smith and the Councillors formed a majority of the Council for the purposes of making decisions of the Council;[274] and
  • each of the Councillors voted to terminate Ms Kelsey's employment because Ms Kelsey had made the Council Complaint and the CCC Referral in that they were politically aligned with Mayor Smith, and the Councillors were aligned with each other and with Mayor Smith in relation to her performance, probation processes and employment matters.[275]
  1. [232]
    As I understood her submissions to this Court, Ms Kelsey described her alignment claim as her '…case theory.'[276]
  1. [233]
    In her final written submissions before the Vice President, Ms Kelsey submitted that throughout her employment, she formed the view that Mayor Smith and the Councillors were '… affiliated with each other' as a result of her interactions with them and her observations of them including:
  • comments made by Mayor Smith to the effect:
  1. –'… I've got the 7 councillors' and '… whatever I need to get up I can get up' (made on or around 27 June 2017); and
  2. –she (Ms Kelsey) had '…sided with the other side' and '… was on their side' (made on or around 9 October 2017), after her attendance at the Relay for Life event with Councillor Laurie Koranski ('Cr Koranski'), Councillor Stacey McIntosh ('Cr McIntosh') and Cr Power,

when no evidence opposing these statements was given and she (Ms Kelsey) was not cross-examined in relation to that evidence;

  • apparent coordination by Mayor Smith and the Councillors in relation to their approach in meetings and that, ultimately, Exhibits 91[277] and 97[278] revealed discussions between Mayor Smith and the Councillors about '…work related matters including proposed approaches to votes, coordinate approaches to matters raised by the community etc';
  • similar voting patterns in informal votes and straw polls; and
  • comments by Cr Lutton recorded in a newspaper to the effect that:
  1. –the Council was divided and ruled by voting blocs of which eight Councillors supported Mayor Smith and five were in opposition; and
  2. –that there was a great divide in the Council between elected members,

being comments Cr Lutton did not refute in his evidence.[279]

  1. [234]
    Ms Kelsey also referred to the view of Cr Power that the Councillors were aligned based upon:
  • his personal observations in relation to the councillors who were aligned with Mayor Smith, namely the Councillors, and those who were not;
  • the actions of councillors during election campaigning in 2016;
  • similar voting patterns in relation to matters relating to her employment;
  • the process for allocation of chairs after the 2016 election;
  • comments by Cr Lutton during an ordinary Council meeting on 5 December 2017 including words to the effect that 'There is a great divide in this Council between the elected members' and 'Your distrust of your fellow councillors is eating away at you and as a result your decisions are made on who supports them and not on their merit';
  • that Mayor Smith and the Councillors were having discussions with each other to which he was not privy; and 
  • from around December 2017, that Mayor Smith and the Councillors had formed the view that the draft Hunter report was negative and that they should share their negativity about her (Ms Kelsey) in a way that seemed to indicate that prior discussions had been held and that Mayor Smith would use his influence over the Councillors to stop Ms Kelsey being confirmed in her employment.[280]
  1. [235]
    Ms Kelsey also:
  • referred to the '…objective evidence' in the form of '… the WhatsApp discussions (including that they were content to accept invitations to and participate in discussions in groups called 'Luke's 7', 'Fab 7', 'Fab 7 2.0', 'Team Awesome 2018' etc) and emails' between the Councillors '… which shows they were affiliated with one another as set out in further detail below';[281] and
  • submitted that after her dismissal, Mayor Smith and the Councillors deleted their WhatsApp accounts and did not provide information about them, and while ultimately some, but not all, of the WhatsApp records were made available to her via Cr Dalley and Councillor Laurence Smith ('Cr Smith'), it was easy to see why the '…Respondents' did not want the WhatsApp records to remain in existence because:
  1. –they '… establish beyond any doubt the alignment pleaded' by her; and
  2. –they reveal '… a visceral enmity' against her that could not be explained by concerns about her performance and can only be explained by reference to the PID and the attack on Mayor Smith as the Councillors interpreted (the PID) as being.[282]
  1. [236]
    In closing oral submissions to the Vice President, Ms Kelsey submitted that:
  • in respect of the credit of the Councillors, an analysis of the WhatsApp material contained in exhibits 91 and 97 demonstrated that the Councillors were part of a secret, closed chat group, in which they were critical of her and the other five                (non-respondent) councillors, which demonstrated a degree of coordination between those persons in respect of matters relating to her employment;[283]
  • she pleaded that Mayor Smith and the Councillors were politically affiliated with each other and that they were aligned with each other in relation to her performance, probation processes and employment matters;[284]
  • the fact that the secret, closed chat groups existed '… taken with the matters contained therein' was a fact the Commission could take into account in assessing whether the reasons put forward by the Councillors were reliable, and the '… discussions in the chat groups reveals a distinct lack of objectivity in respect of' her that demonstrated Mayor Smith and the Councillors worked as a team;[285]
  • it could be inferred that it is logical that the Councillors would react adversely to the public interest  disclosure '… against other team members';[286] and
  • the WhatsApp messages, while not the sole matter relied upon, demonstrate alignment between Mayor Smith and the Councillors and allow the Commission to draw an inference against them in terms of the reliability of their reasons for termination.[287]
  1. [237]
    I will now turn to the particular categories of complaint Ms Kelsey makes about the Primary Decision concerning Ms Kelsey's alignment claim.
  1. [238]
    The questions are:
  • whether any of the particular categories of complaint amount to an error of law because of inadequacy of reasons, and, or in the alternative, an error of fact? and
  • if they did, did they vitiate or affect the Primary Decision?

'D.3A Alignment: Misunderstanding the case pressed by Ms Kelsey'

  1. [239]
    In her principal submissions, Ms Kelsey:
  • contended that a key plank of her case was that there was alignment between Mayor Smith and the Councillors, '…as a result of which the latter had the motive to protect the interests of the former';
  • referred to paragraphs [769] to [771] of the Primary Decision, namely:
  1. [769]
    The Applicant's submission is that the WhatsApp messages, whilst not the sole matter that is relied upon, demonstrate the alignment between the Second to Ninth Respondents and allow the Commission to draw an inference against them in terms of the reliability of their reasons for termination.
  2. [770]
    What is alleged against the Second to Ninth Respondents is much more than a simple alignment.  The Applicant contends that each of the Third to Ninth Respondents:
  1. a.owed their election to Council to the Mayor;
  2. b.owed their election as a Chair to the Mayor;
  3. c.always voted together;
  4. d.always agreed in respect of Ms Kelsey's employment;
  5. e.always voted the same way in respect of Ms Kelsey's employment; and
  6. f.received directions and/or orders from the Mayor.
  1. [771]
    I do not accept that the Third to Ninth Respondents were politically aligned with the Second Respondent in the way alleged by the Applicant.  The evidence simply does not support the contention.;[288]
  • submitted that because sub-paragraphs a. to f. of paragraph [770] were taken from the Councillors' final written submissions to the Commission,[289] the Vice President took those submissions as being a summary of the case advanced by her and the Vice President then proceeded on a premise that fundamentally misunderstood the extent to which she said that the Councillors were aligned in respect of her employment and more generally; and
  • further submitted that:
  1. –her case on alignment was much less absolute that the one the Vice President assumed was being put to him in that it was not part of her case that the Councillors owed their elections to Mayor Smith, or that they always voted together or that they always agreed on contentious matters (including in respect of her employment) and there was no suggestion of receiving orders or instructions from Mayor Smith;
  2. –instead:
  • she pointed to some of the Councillors' campaigns being associated with Mayor Smith at the 2016 election;
  • she alleged that Mayor Smith and the Councillors had co-ordinated strategies with one another in relation to the performance, probation and other employment matters relating to her; and
  • she inferred alignment from her own observations of how they conducted themselves toward her; and
  1. –critically, she relied on Mayor Smith's own words (as referred to in the first dot point of paragraph [233] of these reasons), which were not challenged at the trial, however, that evidence is not referred to anywhere in the Primary Decision.[290]
  1. [240]
    In her principal submissions, Ms Kelsey also submitted that the Vice President made no mention of:
  • Cr Lutton's own words at the Council meeting on 5 November 2017 (reported in the media) about the Council being divided and about the Council being ruled by voting blocs (one of which is referred to in the fifth dot point of paragraph [234] of these reasons); and
  • how closely Councillor Stephen Swenson ('Cr Swenson') tied himself to Mayor Smith as a 'good friend' via social media[291] or how that impacted Cr Swenson's broader assertions of independence.[292]
  1. [241]
    Ms Kelsey also submitted that the Vice President misunderstood her alignment case because:
  • at paragraph [536] of the Primary Decision, where his Honour found that the evidence did not support the suggestion that any Councillor was coerced or persuaded to vote in any particular way, his Honour was asking himself the wrong question because it was no part of her case that the Councillors who voted to terminate her employment were '… coerced' to do so;[293] and
  • in paragraphs [772] and [773] of the Primary Decision, reference was respectively made to:
  1. –evidence not supporting a '… voting bloc which was of such a nature as to demonstrate strict discipline in voting';
  2. –the evidence of Cr Smith regarding the mechanism of straw polls being used to determine numbers on a particular topic before Council and how it would have been expected that mechanism would not be necessary if the Councillors '… always voted together'.[294]
  1. [242]
    Ms Kelsey concluded with the following written submission:
  1. 76.In truth, his Honour's reasons were affected by a straw man fallacy: the Vice President set a benchmark, which did not reflect Ms Kelsey's case, and then used her failure to meet that mark to dismiss her application. His Honour's approach in that regard may assist in explaining why his reasons fail to grapple with the following critical issues:
  1. (a)
    the individual respondents' consistent evidence was that there was no alignment at all between them, or really any material affiliation between them (in contradistinction, on their evidence, to the grouping comprising of Crs Power, Koranski, Bradley, McIntosh and Raven);
  2. (b)
    the objective evidence to the contrary;
  3. (c)
    what impact that inconsistency had on the credibility of the individual respondents, and their insistence that they were motivated to dismiss Ms Kelsey only by lawful reasons.
  1. 77.Ms Kelsey's case theory in respect of the latter point was clear: there was sufficient evidence to demonstrate at least an informal level of political, personal and strategic alignment between the individual respondents and the Mayor; that this alignment motivated their actions; and contributed to aforethought and planning between them as to her dismissal. If Ms Kelsey was right about that, it would invariably cause the Commission to significantly question the individual respondents' explanations.
  1. [243]
    The Councillors submitted[295] that:
  • at paragraph 62 of Ms Kelsey's principal written submissions to this Court, she faintly shadows a notion of alignment which was sufficiently significant so as to give rise to a desire on the part of the Councillors to protect Mayor Smith's interests;
  • then, contrary to that earlier proposition:
  1. –at paragraph 77, Ms Kelsey describes the alignment as an informal political, personal and strategic alignment which motivated actions and contributed to pre-planning as to her (Ms Kelsey's) position; and
  2. –aside from that latter form of alignment being narrower than what was initially pleaded, Ms Kelsey identified no other reason, either at first instance or in this appeal, by reference to evidence, as to why this alignment would extend to her employment, but to no other issues before the Council;
  • the passages in the Primary Decision of which Ms Kelsey is critical is no more than the Vice President attempting to '… grapple with the inchoate submissions' advanced by her, and in order to deal with her submission on appeal, it was critical to understand the structure of the Primary Decision;
  • the Primary Decision followed the following structure:
  1. –after his Honour dealt with the various legal issues that arose, sketching the chronology and the factual issues that arose on the evidence, the Vice President then, Councillor by Councillor, summarised the Councillors' evidence and then, for each Councillor, identified that he accepted their evidence as to the reason they voted and explained why he did so;
  2. –after having made those findings of fact, at paragraph [764], the Vice President correctly restated the question to be answered, namely to assess the reasons of the Councillors for voting to terminate Ms Kelsey's employment;
  3. –at paragraph [767], the Vice President correctly identified Ms Kelsey's attack on the reasons of the Councillors, namely, that they were aligned;
  4. –at paragraph [768], the Vice President found that the Councillors never denied being friends or having a common dislike of other councillors who they did not think were acting in the best interests of the Council; and
  5. –from paragraph [769] onwards, the Vice President explained why he rejected Ms Kelsey's assertions of alignment and why that did not impact on his acceptance of the Councillors' evidence about the reasons for acting;
  • fairly understood, paragraph [770] of the Primary Decision, in light of the surrounding paragraphs, represented an attempt by the Vice President to describe the type of alignment which might lead to the Councillors acting for a proscribed reason and that it was readily apparent from paragraph [769] that the Vice President understood Ms Kelsey was relying on the WhatsApp messages to demonstrate alignment; 
  • at paragraphs [772] to [776], the Vice President identified the evidence which militates against a conclusion of any kind of substantial alignment or grouping between the Councillors; and
  • at paragraph [776], the Vice President dealt precisely with the contention made at paragraph 77 of Ms Kelsey's principal submissions to this Court, namely that the Councillors voted together because of a desire to protect Mayor Smith for some unstated reason, being a contention which the Vice President rejected because it was not credible.
  1. [244]
    The Councillors concluded that Ms Kelsey's contention was understood by the Vice President, it was expressly rejected and that, accordingly, any asserted error on that basis should be rejected.[296]
  1. [245]
    The Council submitted that what the Vice President found was that whatever characteristics any such 'alignment' might have had, the evidence did not support a conclusion that the Councillors were politically aligned with Ms Smith as Ms Kelsey alleged.[297]

The allegation about paragraphs [88], [536], [770] and [772]-[773] of the Primary Decision

  1. [246]
    I am not persuaded that the Vice President misunderstood the alignment case pressed by Ms Kelsey. It is clear that the Vice President incorrectly attributed the submissions in sub-paragraphs a. to f. of paragraph [770] to Ms Kelsey. But the footnote at the end of that sentence correctly attributes the matters in sub-paragraphs a. to f. of paragraph [770] to the Councillors' written submissions to the Vice President. That is too narrow a reason to conclude the Vice President misunderstood the alignment case Ms Kelsey pressed. I accept the  Councillors' submissions that regard must be had to the structure of the Primary Decision and the manner of how the Vice President did describe the alignment claim.
  1. [247]
    Earlier in these reasons, I set out Ms Kelsey's pleaded case about alignment and the submissions she made in support of that claim. Relevantly that was:
  • the pleaded case that:
  1. –Mayor Smith and the Councillors were politically affiliated with each other;
  2. –the Councillors were aligned with each other and with Mayor Smith in relation to Ms Kelsey's performance, probation processes and employment matters;
  3. –Mayor Smith was in favour of the termination of her employment;
  4. –each of the Councillors voted to terminate her employment because she had made the Council Complaint and the CCC Referral in that they were politically aligned with Mayor Smith, and aligned with each other and Mayor Smith in relation to her performance, probation processes and employment matters; and
  • the submissions to the Vice President that:
  1. –the WhatsApp material revealed a distinct lack of objectivity in respect of her that demonstrated the Councillors and Mayor Smith '…worked as a team'; and
  2. –it could be inferred that it was logical that the Councillors would react adversely to the public interest disclosure against other team members.
  1. [248]
    At paragraph [767] the Vice President relevantly stated:
  1. [767]
    The Applicant's case depends upon the contention that the Second to Ninth Respondents are aligned.  The Applicant pleaded that each of the Second to Ninth Respondents were politically affiliated with each other and that they were each aligned with each other in relation to the performance, probation processes and employment matters of the Applicant. 
  1. [249]
    At paragraph [776] the Vice President relevantly stated:
  1. [776]
    The Applicant contends that the alignment between the Second to the Ninth Respondents was such that they voted en masse to terminate the employment of the Applicant. 
  1. [250]
    At paragraph [777] the Vice President stated:
  1. [777]
    In the submissions of the Applicant, it is contended that the WhatsApp records reveal a visceral enmity against the Applicant which cannot be explained by any concerns about her performance which were generally held.  The hatred demonstrated by the records is only explicable by reference to the PID and the attack against Mayor Smith.
  1. [251]
    The summary of Ms Kelsey's alignment case in paragraphs [767], [776] and [777] of the Primary Decision, in my view, demonstrates that the Vice President did not misunderstand Ms Kelsey's alignment case at all. When compared to her pleaded case and her final trial submissions to which I have referred, those paragraphs show a correct understanding of her alignment case. To submit that merely because the Vice President incorrectly attributed the matters in paragraph [770] to be a summary of Ms Kelsey's alignment claim (but correctly footnoted the source of the matters referred to in sub-paragraphs a. to f. of paragraph [770] to the Councillors' first instance written submissions) ignores paragraphs [767], [776] and [777]. Indeed, in paragraph [770], the Vice President states that what was alleged against the Councillors '... is much more than a simple alignment'. On the description of Ms Kelsey's alignment case as pleaded and argued, it was, in fact, much more than simple alignment. It was, as the Vice President stated in paragraph [767], that Mayor Smith and the Councillors were politically affiliated with each other; and, as the Vice President stated in paragraph [776], that the alignment between Mayor Smith and the Councillors was such that they voted en masse to terminate Ms Kelsey's employment.
  1. [252]
    I am not persuaded that paragraph [536] indicates the Vice President misunderstood Ms Kelsey's pressed alignment claim. Again, this paragraph needs to be read in light of the surrounding paragraphs. That paragraph was part of his Honour's assessment of the sworn evidence of Councillor Phillip Pidgeon ('Cr Pidgeon'). The paragraph immediately before it dealt with the cross-examination of Cr Pidgeon about whether or not he had been previously requested to vote in a particular way. It was in that context that in paragraph [536] the Vice President referred to the distinction between lobbying and being coerced or directed to exercise a vote. In that regard, and in light of paragraphs [767], [776] and [777], I do not accept that by paragraph [536], the Vice President misunderstood Ms Kelsey's pressed alignment claim.
  1. [253]
    Similarly, paragraphs [772] and [773] reveal no such misunderstanding. Ms Kelsey's submissions to the Commission was that Mayor Smith and the Councillors were politically affiliated with each other. Paragraph [772] concerned the Vice President's view that the evidence of Mr Silvio Trinca ('Mr Trinca') was not of such a nature as to demonstrate a strict discipline in voting. Paragraph [773] deals with Cr Smith's evidence about straw polls and the conclusion reached by the Vice President that if a political alliance existed between the Councillors, to the extent they always voted together, such straw polls would not be necessary. The Vice President was not, in these two paragraphs, expressly stating that the precise tenets of Ms Kelsey's alignment claim included a strict discipline in voting or that the Councillors always voted together. They were statements made in the context of a consideration of particular evidence in light of Ms Kelsey's claim and submission about the political affiliation between Mayor Smith and the Councillors. Again, in light of paragraphs [767], [776] and [777], the Vice President was clear that the claim pressed by Ms Kelsey was the alignment between Mayor Smith and the Councillors in relation to her performance, probation processes and employment matters and, because of that alignment, the termination of her employment was because she had made '… the PID' about Mayor Smith.
  1. [254]
    In her oral submissions to this Court, Ms Kelsey:
  • referred to paragraph [88] of the Primary Decision where his Honour found that as the evidence unfolded, it became apparent that the Council was divided, councillors were divided broadly between those who supported her and those who did not, and that the matter was '… set against a background of pettiness, distrust and vitriol; a factionalised Council consumed by self-interest and point‑scoring';
  • referred to her case on alignment as pleaded (as summarised in paragraph 231 of these reasons);
  • referred to paragraph [767] of the Primary Decision where his Honour said that her pleaded case was that Mayor Smith and the Councillors were politically affiliated with each other and were aligned with each other in relation to her performance, probation processes and employment matters; and
  • submitted that it was difficult to square paragraph [767] of the Primary Decision with paragraph [88].[298]
  1. [255]
    In my view, no such difficulty arises. Paragraph [88] needs to be considered in its place in the structure of a long decision. Paragraph [88] was given very early on in the Primary Decision under the heading of 'Background to the evidence'. It was a general summary of the evidence overall about the Council and was not a summary of Ms Kelsey's alignment claim. The Vice President later gave detailed reasons why he rejected Ms Kelsey's alignment claim.
  1. [256]
    In oral submissions, Ms Kelsey also submitted the Vice President's finding at paragraph [775], of the factors that militated against a conclusion of alignment, were only part of the story and his Honour did not engage in a real review of the evidence.[299]
  1. [257]
    I accept the Councillors' submissions, that the alignment claim articulated in paragraph 77 of Ms Kelsey's principal submissions to this Court – that there was sufficient evidence of '… at least an informal level of political, personal and strategic alignment' between Mayor Smith and the Councillors – is a narrower claim of alignment than what was pleaded at first instance. In respect of that narrower claim, Ms Kelsey now attempts, by selective reference to particular passages of the Primary Decision not considered in their proper context, and without proper consideration of the Vice President's reasons in paragraphs [767], [776] and [777], to contend that the Vice President misunderstood her case on alignment. For the reasons I have given, the Vice President did not misunderstand Ms Kelsey's alignment case. Such selective reference to evidence in respect of a narrower claim of alignment, than originally claimed by Ms Kelsey, does not persuade me that the Vice President misunderstood Ms Kelsey's alignment claim.
  1. [258]
    From paragraph 76 of her principal submissions to this Court, Ms Kelsey submits that the Vice President's reasons were affected by a '… straw man fallacy' in that his Honour set a benchmark for her alignment claim different than she alleged or pressed, the consequence of which was that the Vice President, in his reasons, failed to grapple with certain critical evidence.
  1. [259]
    It was also submitted, at a high level of generality, that if Ms Kelsey's alignment claim as she claimed in this Court was right, that would '…invariably cause the Commission to significantly question' the Councillors' explanations about there being no alignment between them and the reasons they voted to dismiss her.[300]
  1. [260]
    I will deal with the particular evidence referred to by Ms Kelsey immediately below, but at a general level, these submissions cannot be accepted. For the reasons I have given, the Vice President did not misunderstand Ms Kelsey's alignment claim or set a benchmark that did not reflect her alignment claim. If the Vice President's reasons are susceptible in explaining why the Vice President did '… fail to grapple' with certain critical issues or evidence as alleged (which, for the reasons I give later under different sub-headings, I do not accept) that is not because his Honour's reasons were affected by a '… straw man fallacy' as alleged.
  1. [261]
    Similarly, in paragraph [775], the Vice President describes the factors that militated against a conclusion of alignment as alleged by Ms Kelsey. For the same reasons as just given, it cannot be accepted that the Vice President, in respect of those factors, did not engage in a real review of the evidence because his Honour did not understand Ms Kelsey's alignment claim.
  1. [262]
    Again, for these same reasons, even accepting the allegation that the Vice President did not deal with the particular evidence as referred to by Ms Kelsey in this category of complaint, that was not due to the Vice President misunderstanding her alignment claim.
  1. [263]
    On the critical issue of comprehending Ms Kelsey's alignment claim, his Honour's reasons in describing that claim were correct and adequate. For the reasons I gave earlier, his Honour's description accurately recites the critical factors of Ms Kelsey's alignment claim as pleaded and argued by her before the Commission.
  1. [264]
    I do not accept the allegation the Vice President set a benchmark for Ms Kelsey's alignment claim which was different to that she asserted.  Even if they were accurate, none of the broadly expressed possible explanations of the Vice President's alleged failure '… to grapple' with:
  1. –the Councillors asserting there was no alignment between them;[301]
  2. –the objective evidence to the contrary; or
  3. –the impact such inconsistency had on the Vice President's assessment of the credit of the Councillors for voting to dismiss Ms Kelsey,

was because the Vice President set a benchmark for Ms Kelsey's alignment claim which was different to that she asserted.

The specific evidence referred to by Ms Kelsey

  1. [265]
    In her principal submissions,[302] Ms Kelsey:
  • referred to the evidence of Cr Power, namely:
  1. –there had been a number of occasions where Mayor Smith and the Councillors expressed similar views and voted consistently in relation to matters involving her employment;
  2. –straw polls were often used as a measure of gauging support such that any councillors who opposed the measure in a straw poll tended not to vote it down in the formal vote if the straw poll indicated majority support for the measure;
  3. –it was not the case that Mayor Smith and the Councillors always voted together, rather, they tended to vote together when an issue really mattered to Mayor Smith, and referred to two development approval decisions; and
  4. –the voting data produced by Mr Trinca, who was the acting chief executive officer of the Council when he gave his evidence, did not demonstrate a factional divide in the Council; and
  • referred to the evidence, in the cross-examination of Mr Trinca,[303] about straw polls, namely, that if a consensus was reached in a straw poll, dissenting councillors tended to support that consensus at a formal vote, which was at odds with the Councillors' position to the effect that if a councillor dissented in a straw poll, they would formally vote against it or abstain from the vote.
  1. [266]
    In her oral submissions about this evidence, Ms Kelsey:
  • referred to Cr Power's and Mr Trinca's evidence, and submitted that:
  1. –as was found by the Vice President at paragraph [772], Mr Trinca's evidence in relation to voting patterns over a number of years did not support the contention that there was a voting bloc and his evidence did paint the picture as found by the Vice President, but the evidence of Cr Power was that when things really mattered to Mayor Smith, there was a voting discipline, which was evidence that was not determinative, but '…it's one piece of the puzzle';[304] and
  2. –Mr Trinca's evidence in cross-examination (referred to above) about straw polls '…cuts both ways' because while the fact that the evidence about straw polls suggests that there was not a voting bloc, the Vice President '… was also compelled … to give some reasons about how' his Honour took account of what Mr Trinca said '… in weighing up the data that showed no obvious alignment between a particular group of councillors';[305] and
  • submitted that:
  1. –Mr Trinca's evidence was not consistent with the evidence of Cr Lutton, Cr Swenson, Councillor Jennifer Breene ('Cr Breene') and Cr Dalley (which was to the effect that if a councillor dissented in a straw poll, they formally voted against it or abstained from the vote); 
  2. –while that evidence '…was not determinative necessarily of any issues' it was important contextual evidence in the whole of the circumstances about which the Vice President was bound to give reasons and explain how he reconciled that evidence with his finding that Mr Trinca's evidence ought to be taken at face value; and
  3. –this also amounted to an Earthline error '… to try and demonstrate new examples of the gaps.'[306]
  1. [267]
    It was also submitted that Cr Power's evidence (and certain evidence of Councillor Jonathan Raven ('Cr Raven') about alignment) was not referred to in the Primary Decision.[307]
  1. [268]
    Any failure to refer to specific evidence or the absence of a reconciliation of Mr Trinca's evidence with the evidence of Cr Lutton, Cr Swenson, Cr Breene and Cr Dalley about what happened after straw polls, was not because his Honour's reasons were affected by a straw man fallacy as alleged or that his Honour misunderstood Ms Kelsey's alignment claim. For the same reasons as given earlier, the Vice President correctly understood Ms Kelsey's alignment claim.
  1. [269]
    To the extent it is alleged the Vice President's acceptance of Mr Trinca's evidence over other witnesses, about how councillors formally voted after straw polls, was not adequately explained by the Vice President or was an Earthline error, then those submissions cannot be accepted.
  1. [270]
    The central critical issue in this case was whether the Councillors voted to terminate Ms Kelsey's employment because she made the public interest disclosure or commenced the Commission proceedings; the critical issue was not how councillors formally voted after straw polls. As the Councillors submitted, correctly in my view, even if the Vice President did accept that there was some degree of political or personal alignment (between Mayor Smith and the Councillors and between the Councillors themselves) the Vice President still needed to assess the reasons the Councillors voted to terminate Ms Kelsey's employment.[308] In my view, a determination about how councillors voted after straw polls was not essential to the resolution of the critical issue of Ms Kelsey's alignment claim or to the central critical issue of whether the Councillors voted to terminate Ms Kelsey's employment for a prohibited reason. Again, as the Councillors correctly submit, an error which underpins Ms Kelsey's submissions is her failure to differentiate between evidential matters which arose in the proceeding and evidential findings which  '… go to a critical issue.'[309] The Vice President was not required to deal with every argument and issue that arose in the case. The issue about the outcomes of straw polls, that Ms Kelsey says should have been resolved, was not a substantial issue. It was not an issue that required resolution by the Vice President for him to reach a conclusion about the critical issues. The evidence about straw polls, or the resolution of the conflict in evidence about straw polls, was not decisive to the determination by the Vice President about the issues of Ms Kelsey's alignment claim and why the Councillors voted the way they did. Similarly, the minor dispute between Mr Trinca's evidence and Cr Power's evidence about voting blocs was not a substantial issue required for the resolution of the critical issues; and it was not a matter, the resolution of which, was decisive to the determination of the critical issues that the Vice President had to decide.
  1. [271]
    Ms Kelsey also referred to her affidavit evidence about what Mayor Smith said to her, on or around 27 June 2017 and on around 9 October 2017,  as set out in the first dot point in paragraph 233 of these reasons. It was submitted that Mayor Smith did not rebut that evidence and she (Ms Kelsey) was not challenged on it, such that it was incontrovertible evidence in the Fox v Percy sense, in respect of the Councillors telling the truth that they were '…truly independent of one another' and in respect of their evidence about what actuated their conduct to vote to dismiss her. It was also submitted that the failure to refer to that evidence demonstrated that the reasons were not adequate.[310]
  1. [272]
    The evidence given by Ms Kelsey was that Mayor Smith said to her, on 27 June 2017, '… I've got the 7 councillors' and '… whatever I need to get up I can get up'; and, on or around 9 October 2017, Mayor Smith said to her she had '… crossed to the other side' and was '…on their side.' In my view, this cannot be described as incontrovertible evidence (in the Fox v Percy sense) about the central critical issue, namely whether the Councillors voted to terminate Ms Kelsey's employment because she made the Council Complaint, the CCC Complaint, the s 176B Complaint or commenced the QIRC proceedings. As the Councillors submitted, McHugh J (at [90]) in Fox v Percy identified that such evidence must decisively, and not merely persuasively, point to error on the part of the trial judge in acting on their impressions of the witness or witnesses.[311] Mayor Smith's comments to Ms Kelsey were made before Ms Kelsey made the Council Complaint, the CCC Complaint, the s 176B Complaint and before she commenced the QIRC proceedings. For that reason, those comments could not have been decisive evidence that went to the critical issue.
  1. [273]
    Further, I am not persuaded that, by omitting reference to that evidence, the reasons were inadequate. What Ms Kelsey said Mr Smith said to her, because it was said before the critical events in the case, namely, Ms Kelsey making the PID and commencing the QIRC proceedings, could not have been decisive.
  1. [274]
    The failure to refer to the evidence of what Cr Lutton said about voting blocs, as reported in the media or as recorded in a Council meeting, and the failure to refer to the social media evidence about Cr Swenson's friendship with Mayor Smith, is not proof that the Vice President misunderstood Ms Kelsey's alignment claim. For the reasons I have given above, the Vice President did not misunderstand Ms Kelsey's alignment claim. Further, as will become apparent for the reasons that later follow about Ms Kelsey's other complaints about errors of fact, that evidence, in the scheme of all the evidence presented, was relatively inconsequential. It is not evidence that decisively points to error on the part of the Vice President about his conclusions about Ms Kelsey's alignment claim or the reasons for the Councillors' vote. None of that evidence can be said to be decisive to those disputed matters. It is not evidence which renders the Vice President's conclusions about those matters glaringly improbable.
  1. [275]
    The central critical issue was whether the Councillors voted to terminate Ms Kelsey's employment because she made the PID or commenced the QIRC proceedings. For the reasons given under the next sub-headings, the Vice President's reasons on that critical issue were adequate and met the principles in DL. The obligation is to give reasons sufficient to identify the principles of law applied by the tribunal and the main factual findings on which the tribunal relied. Similarly, not every failure to resolve a dispute will render reasons for a decision inadequate to justify a verdict. Reasons will often be inadequate if the tribunal fails to explain a conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.[312] By way of summary, the Vice President referred to the evidence that was critical to the issues thrown up by the parties in the case, namely, Ms Kelsey's alignment case theory and whether or not the Councillors voted for Ms Kelsey's dismissal for a proscribed reason. In particular, the Vice President referred to and analysed the parties' arguments about the credit of the Councillors in coming to his Honour's decision about the reasons each Councillor voted the way they did. As the Councillors submitted to this Court, their defence was not that there was no alignment; their defence was their reasons for voting.[313]

'D.3B Alignment: the contents of the WhatsApp messages'

  1. [276]
    In oral submissions,[314] Ms Kelsey referred to paragraphs [777] to [787] of the Primary Decision in relation to this category of complaint. In those paragraphs, the Vice President stated:[315]
  1. [777]
    In the submissions of the Applicant, it is contended that the WhatsApp records reveal a visceral enmity against the Applicant which cannot be explained by any concerns about her performance which were generally held.  The hatred demonstrated by the records is only explicable by reference to the PID and the attack against Mayor Smith.
  2. [778]
    Whilst I accept that the WhatsApp transcripts reveal a level of hostility towards Ms Kelsey and demonstrate a distrust of her, they cannot be explained by reference to the lodging of a PID.
  3. [779]
    A consistent theme in the evidence of the Third to Ninth Respondents has been concern over Ms Kelsey's ability to remain impartial.  It was raised in the probation conversation report.  That conversation was at a time which predated the lodgement of the PID.
  4. [780]
    This case must be seen within a prism of what Councillors Lutton, Dalley and Swenson described as a toxic environment.  The divisions between the factions were deep seated.  The WhatsApp transcripts clearly reflect the depth of feeling.
  5. [781]
    Cr Swenson believed that Ms Kelsey had unknowingly started to be a pawn in Cr Power and Cr Bradley's attempts to get rid of Mayor Smith.  Cr Lutton thought that hatred had coloured the decision making and that Ms Kelsey, "as CEO should have been trying to break down the camp of the anti-mayoral thing, rather than fostering it".
  6. [782]
    The Applicant has been caught in a tussle between two competing forces.  Unfortunately for Ms Kelsey, she has become embroiled in the battle.  She is seen as favouring or supporting the opposition.  As such she could not be trusted.  In the eyes of the Third to Ninth Respondents, she had demonstrated partisanship.  As far as they were concerned her position was untenable.
  7. [783]
    However, the WhatsApp messages do not reveal in my view any degree of co-ordination of approach or any direction as alleged by the Applicant.  The WhatsApp platform offered the Second to Ninth Respondents with an avenue to express their views and opinions.  It involved both Council and non-Council related conversations but importantly, they do not reveal that the Third to Ninth Respondents made their decision to terminate Ms Kelsey's employment for a proscribed reason.
  8. [784]
    Importantly, in the period immediately preceding the vote to terminate the Applicant's employment and after, there are no messages suggesting how Councillors should vote or enquiring as to how they proposed to vote.  I accept the argument that the messages do not reveal an assignment of task, a co-ordination of effort or approach.
  9. [785]
    If it is the case that the Councillors altered the way in which they dealt with the Applicant, which is not immediately apparent on the evidence, it is explicable by the fact that they no longer trusted her as they had formed the view that she was partisan.
  10. [786]
    It is apparent from the reasons advanced by the Third to Ninth Respondents that they were dissatisfied with the way in which Ms Kelsey was performing her duties. 
  11. [787]
    Whilst Ms Kelsey was described by a number of the Third to Ninth Respondents as litigious it does not necessarily follow that they were motivated by a proscribed reason for terminating her employment.  It will be recalled that on 6 November 2017 Cr Schwarz made a comment to the effect that Ms Kelsey was litigious.  At that point, litigation had not yet been commenced but the Council had been the subject of a number of demands from Ms Kelsey’s solicitors in respect of the way in which the First Respondent would conduct its probation process.
  1. [277]
    In her oral submissions, Ms Kelsey's general submissions about the WhatsApp messages that were before the Vice President were that:
  • it was hard to see them as consistent '… with innocent performance concerns or even innocent concerns about factionalism or being too close to the minority councillors'; and
  • there was a level of vitriol that was explained more readily by '… an animosity that Ms Kelsey targeted the person who these people – the individual respondents – were close to whose "vision" they supported and who they believed was innocent of anything and … who wanted really the impediment to the Mayor's capacity to carry out that vision be removed and that impediment of course' was her.[316]
  1. [278]
    However, in respect of this category of complaint, as the Councillors submit, paragraphs [767] to [786] of the Primary Decision demonstrate that the Vice President was acutely aware of how Ms Kelsey relied upon the WhatsApp messages to support her contention that the Councillors were aligned and, for that reason, why Ms Kelsey claimed the Councillors' evidence about why they voted to terminate her employment, should not be accepted.[317] Although I have already reproduced paragraph [769] in these reasons, it is necessary to set it out again. In that paragraph, the Vice President stated:
  1. [769]
    The Applicant's submission is that the WhatsApp messages, whilst not the sole matter that is relied upon, demonstrate the alignment between the Second to Ninth Respondents and allow the Commission to draw an inference against them in terms of the reliability of their reasons for termination.
  1. [279]
    By Ms Kelsey's oral submissions, after pointing to particular evidence, her complaints are that:
  • his Honour erred in law in that the Vice President did not give adequate reasons in respect of his Honour's consideration of the WhatsApp messages; and
  • his Honour erred in the Earthline sense or the Fox v Percy sense.
  1. [280]
    In respect of the former, the general substance of the submissions made by Ms Kelsey was that because his Honour did not refer to certain WhatsApp Messages, the parties do not know what his Honour made of that particular evidence in the context of her alignment claim and in the assessment of the credit of the Councillors.[318]
  1. [281]
    In respect of the latter, Ms Kelsey submitted that while the Vice President focused on whether the WhatsApp messages were '…direct evidence of' proscribed reasons, they '… were a key circumstantial part of the case' against the Council and the Councillors.[319] The general substance of the submissions then was that the Vice President did not conduct a proper review of all of that evidence before his Honour.[320] 
  1. [282]
    I will first deal with the general submissions made by Ms Kelsey.

Ms Kelsey's general complaint about the WhatsApp messages

  1. [283]
    In her principal submissions to this Court, Ms Kelsey submitted:
  • the Vice President treated the existence of the WhatsApp groups and membership of them as an entirely neutral factor while, at the same time, used the fact that Cr Lutton was not a member as probative of the fact that he was not affiliated with Mayor Smith, such that either '… membership of the WhatsApp groups was or was not probative of affiliation' and that the '… illogicality apparent from the reasons in this respect shows error'; and
  • paragraph [778] of the Primary Decision succinctly demonstrates the Vice President's error, in that it was a significant finding that was not adequately explained, which was particularly so when the WhatsApp messages spoke for themselves, namely;
  1. –the relevant WhatsApp groups – 'Lukes' 7', 'Team Awesome 2018' and 'Fab 7' – established '… a political, personal and strategic alliance between the Mayor and individual respondents at least in relation to her employment'; and
  2. –the WhatsApp messages showed that members of those groups were a self‑described team and '… they demonstrate the participants as strategising among themselves about how they should deal with Ms Kelsey's PID complaint and related Commission proceedings'.[321]
  1. [284]
    I will refer to each of these in turn plus another argument, namely, that the Vice President did not adequately deal with the inferences from the WhatsApp messages pressed by Ms Kelsey.

The WhatsApp messages were allegedly treated as neutral

  1. [285]
    I do not accept the submissions Ms Kelsey makes about the Vice President treating the WhatsApp groups, and membership of them, as an entirely neutral factor. In my view, this submission wrongly conflates mere membership of the WhatsApp groups with the content of the communications between the members of the groups. Further, that submission ignores Ms Kelsey's submissions to the Vice President about what his Honour should have made of those communications and his Honour's decision about those submissions. 
  1. [286]
    Having regard to the submissions made by Ms Kelsey to the Vice President, the probative value was not mere membership of a WhatsApp group; the probative value was the content of the communications between the members. Again, I refer to Ms Kelsey's final oral submissions to the Vice President by which she contended that:
  • in respect of the credit of the Councillors, any analysis of the '…WhatsApp material contained in exhibits 91 and 97' demonstrated that Mayor Smith and the Councillors were part of a secret, closed chat group in which there were discussions critical of her (and the other non-respondent councillors) and which demonstrated a degree of coordination between those persons in respect of matters relating to her employment;[322]
  • the fact that the closed chat groups existed '… taken with the matters contained therein' was a fact the Commission could take into account in assessing whether the reasons put forward by the Councillors were reliable, the '… discussion in the chat groups reveals a distinct lack of objectivity in respect of Ms Kelsey' that demonstrated Mayor Smith and the Councillors worked as a team, and that it could be inferred that it was logical that the Councillors would react adversely to a public interest disclosure against other team members;[323]
  • the messages were replete with requests for support from the other members of the closed groups, the planning and ratification of approaches to work together as a team and a '… demonstrated collaboration in respect of sensitive issues arising within the council, including in respect of' her;[324] and
  • while not the sole matter relied upon, the WhatsApp messages demonstrated alignment between Mayor Smith and the Councillors and allowed the Commission to draw an inference against the Councillors in terms of the reliability of their reasons for dismissing her.[325]
  1. [287]
    At paragraph [769], the Vice President summarised Ms Kelsey's submissions about the WhatsApp messages, namely, the WhatsApp communications, '… demonstrate the alignment between the Second to Ninth Respondents and allow the Commission to draw an inference against them in terms of the reliability of their reasons for termination.'
  1. [288]
    At paragraph [777] the Vice President further summarised the relevant written submissions of Ms Kelsey, namely, that the WhatsApp records reveal a visceral enmity against her which cannot be explained by concerns about her performance and that the hatred was only explicable by reference to '… the PID and the attack against Mayor Smith.' At paragraph [778], the Vice President found that while the WhatsApp transcripts reveal a level of hostility towards Ms Kelsey, and demonstrate a distrust of her, they could not be explained by reference to her lodging a public interest disclosure.
  1. [289]
    Therefore, the Vice President did consider the evidence of the content of the WhatsApp messages, but then found that that evidence did not go to prove what was being alleged by Ms Kelsey, namely, that the Councillors were aligned with each other and with Mayor Smith in relation to her performance, probation processes and employment matters and, as a consequence of that alignment, she was dismissed because she had made a public interest disclosure against a member (Mayor Smith) of that aligned team. The mere fact of membership of WhatsApp groups was not determinative of anything, however, that was not the case being pressed by Ms Kelsey.
  1. [290]
    Further, I do not accept Ms Kelsey's related submission[326] that the Vice President's finding at paragraph [586] of the Primary Decision – that Cr Lutton's lack of involvement in WhatsApp communications did not support a conclusion that Cr Lutton was affiliated with Mayor Smith – demonstrates illogicality in his Honour's reasoning on the basis submitted by Ms Kelsey, namely, that either '… membership of the WhatsApp groups was or was not probative of affiliation.'  This is because, for the reasons given above, mere membership of WhatsApp groups was not the matter being pressed by Ms Kelsey as being probative. The matter really pressed was the content of the communications between members of the groups. A further difficulty arises with that submission because, as submitted by the Councillors,[327] despite Cr Lutton not having any involvement in the WhatsApp communications, he was still asserted to be part of the relevant aligned team as claimed by Ms Kelsey.

The allegation that the Vice President's finding in paragraph [778] was not adequately explained

  1. [291]
    Next, Ms Kelsey submits that paragraph [778] succinctly demonstrates the error said to be made by the Vice President. The assertion is that the Vice President did not adequately explain his reasons for that significant finding. I do not accept that paragraph [778] was inadequately supported by reasons.
  1. [292]
    As the Councillors submitted,[328] at paragraphs [783] and [784], the Vice President explained that his Honour's review of the content of the WhatsApp messages revealed that there were no messages suggesting how the Councillors should vote, that there was no inquiry as to how they proposed to vote, and that there were no messages revealing an assignment of task or a coordination of effort or approach. The Councillors further submitted that, as the Vice President found, none of the messages identify that the Councillors made the decision to terminate Ms Kelsey's employment for a proscribed reason.
  1. [293]
    For these reasons, I do not accept Ms Kelsey's submission that his Honour's finding at paragraph [778] was not adequately explained. The Vice President took into account Ms Kelsey's submissions about the content of the WhatsApp messages, namely that the Councillors' sworn evidence should not be accepted because it should be inferred from the content of those messages that the Councillors, because of their alignment with each other and with Mayor Smith, voted to terminate her employment because she had made a public interest disclosure about Mayor Smith and had commenced the QIRC proceedings.
  1. [294]
    The Vice President's reasons in assessing the evidence of the WhatsApp messages, as referred to in paragraphs [783] and [784], are directly referable to the earlier conclusion his Honour reached in paragraph [778].
  1. [295]
    Those reasons are adequate having regard to the principles set out in DL. This is because:
  • in paragraph [769] (and in paragraph [274]) the Vice President correctly identified the argument made by Ms Kelsey about the WhatsApp communications;
  • in paragraphs [783] and [784], the Vice President identified the main factual findings upon which his Honour relied in coming to his Honour's conclusion in paragraph [778]; that is, the Vice President identified the main factual findings about the content of the WhatsApp messages and the Vice President explained why his Honour rejected that evidence to the extent Ms Kelsey submitted to his Honour that evidence was probative of her alignment claim and her claim about the credit of the Councillors;
  • while the Vice President did refer to some of the WhatsApp messages, the fact that the Vice President did not refer to every WhatsApp message, or to more of them, is not sufficient to conclude that the Vice President erred in law; this is because the Vice President, in coming to his Honour's conclusion in paragraph [778]:
  1. –was not required to undertake a minute explanation of every step in his Honour's reasoning;
  2. –was not required to deal with every argument and issue raised in the trial;
  3. –assigned reasons why he rejected the substantial argument raised by Ms Kelsey about the WhatsApp messages, in terms of her alignment claim and her submissions about their effect on the credit of the Councillors and, in doing so, dealt with the evidence of the content of the WhatsApp messages in a conventional way by considering that evidence and assessing it in respect of the submissions made by Ms Kelsey about what should be drawn from the WhatsApp communications; and
  • the basis of the Vice President's reasons, about the probative value of the WhatsApp messages as claimed by Ms Kelsey, enable the parties to identify the basis of his Honour's decision about them.

The allegation that the Vice President's reasons about inferences pressed by Ms Kelsey were not adequately explained

  1. [296]
    Ms Kelsey submitted that the Vice President focused on '… whether the WhatsApps were direct evidence of ' proscribed reasons when they were '… a key circumstantial part of the case' against the Council and the Councillors.[329] The complaint is, as I understand it, that not only did the Vice President err in fact (in the Fox v Percy or Earthline sense) about the probative force of the WhatsApp communications, the Vice President also gave no or inadequate reasons about rejecting the inferences Ms Kelsey said should have been drawn from them. I reject that submission for the following reasons.
  1. [297]
    First, at paragraph [274] of the Primary Decision, the Vice President summarised Ms Kelsey's submission about what may be drawn from the WhatsApp messages, namely:
  1. [274]
    The Applicant submits that the records establish an alignment as pleaded by the Applicant and denied by the Respondents including in sworn evidence.  The Applicant contends that the records reveal the clandestine leadership role played by the Second Respondent before and after he was injuncted from participation in the probationary process, and the unqualified support for him from the aligned group.  They reveal in stark detail the unfolding secret strategy which culminated in Ms Kelsey's dismissal.
  1. [298]
    Having regard to this summary, including the '… clandestine leadership role' of Mayor Smith and to the '…unfolding secret strategy',  the Vice President was acutely aware of the submissions made by Ms Kelsey about the inferences she claimed should have been drawn, from the WhatsApp communications, against the Councillors.
  1. [299]
    Secondly, as referred to earlier, at paragraph [769] of the Primary Decision, the Vice President accurately summarised Ms Kelsey's submissions about the inferences to be drawn from the WhatsApp communications.
  1. [300]
    Thirdly, it is clear that by the language used in his Honour's reasons about the WhatsApp messages, the Vice President was not only referring to whether they contained direct evidence of the Councillors acting for proscribed reasons. His Honour was also referring to the circumstantial case about the WhatsApp messages argued by Ms Kelsey.  In paragraph [783], the Vice President stated that the WhatsApp messages '….do not reveal in my view any degree of co-ordination of approach or any direction as alleged by the Applicant' and that they did not '…reveal that the Third to Ninth Respondents made their decision to terminate Ms Kelsey's employment for a proscribed reason.' Similarly, at [784], while the Vice President found that there were no messages suggesting how Councillors should vote or enquiring how they would vote,[330] his Honour accepted '… the argument that the messages do not reveal an assignment of task, a co-ordination of effort or approach.'[331]
  1. [301]
    Having regard to what I have said in the previous paragraph, it must be kept in mind that at paragraphs [274] and [769] the Vice President correctly identified the inference case about the WhatsApp messages pressed by Ms Kelsey. The consistent use of the word '…reveal' (as opposed to '…state') clearly indicates that the Vice President was rejecting the inference or circumstantial case pressed by Ms Kelsey and was not merely focussing on whether the WhatsApp messages contained direct evidence that supported her alignment claim or impugned the Councillors' sworn evidence.
  1. [302]
    Fourthly, the Vice President, in great detail, considered the evidence given by each of the Councillors about their sworn reasons for voting to terminate Ms Kelsey's employment. Then, in respect of each of the seven Councillors, his Honour concluded by making an  assessment about their evidence.  The assessment was favourable to all of them. The assessment included considering the submissions made by Ms Kelsey about why their sworn evidence should not be accepted and, for three of the six of them who used WhatsApp,[332] included what they had said in some WhatsApp communications and their evidence given when cross-examined about certain of their WhatsApp communications. While I go into these issues in more detail later given some specific submissions made by Ms Kelsey, at this point, I refer to the following  reasons given by the Vice President.
  1. [303]
    In respect of the assessment of the evidence of Cr Dalley, the Vice President:
  • at [436]-[438], referred to evidence given in cross-examination by Cr Dalley about a WhatsApp message (apparently) by Mayor Smith about the need for a strategic meeting; then at [439], referred to a subsequent meeting, held immediately after Ms Kelsey '…lodged the PID' at which every councillor attended, with the exception of Cr Smith, so as to discuss correspondence that had been received from Ms Kelsey's solicitors; and then at [443], after referring to some other evidence, did not accept Ms Kelsey's submission that Cr Dalley was outraged  '… that a PID was lodged against Mayor Smith and, as a result, decided that Ms Kelsey's relationship' with the Council was over;  
  • at [449], found that the WhatsApp transcripts did not reveal that Cr Dalley was motivated by a proscribed reason; and
  • at [455], found that the WhatsApp transcripts did not reveal that Cr Dalley  discussed how she and the others were going to vote (about Ms Kelsey's employment).
  1. [304]
    In respect of the assessment of the evidence of Cr Pidgeon, the Vice President at [531]‑[532], referred to Cr Pidgeon's denials in cross-examination about being the author of a WhatsApp message about Ms Kelsey being hit by the door on the way out (discussed in more detail later) and Ms Kelsey's submissions about what may be drawn from that message. The Vice President's conclusion at [533] was that '… it does not necessarily follow that the post can only be explained by reference to the lodging of the PID.' In this latter respect, the Vice President was clearly referring to the fact that more than one inference was able to be drawn from that message.
  1. [305]
    In respect of the assessment of the evidence of Cr Swenson, the Vice President at [575]-[580], referred to Cr Swenson's evidence in cross-examination about WhatsApp communications he posted in January 2018. The Vice President's conclusion at [580] was while his Honour accepted '… that some of Cr Swenson's posts were critical of Ms Kelsey…nothing in those messages suggest that Cr Swenson was motivated by a prohibited reason'.  Again the reference to the messages not suggesting anything adverse to Cr Swenson clearly indicates the Vice President was alive to the inferences Ms Kelsey submitted should be drawn about the WhatsApp communications.
  1. [306]
    The Vice President, therefore, dealt with specific WhatsApp messages in giving his Honour's reasons why he rejected Ms Kelsey's submissions regarding the WhatsApp communications. Further, for the reasons given earlier, the Vice President gave adequate reasons for rejecting Ms Kelsey's overall case about what she submitted should be drawn from the WhatsApp communications. Those reasons also concerned Ms Kelsey's submissions about the adverse inferences that should be drawn from them.
  1. [307]
    The Vice President was not required to give reasons about why he rejected Ms Kelsey's inference case about every WhatsApp communication in evidence or every WhatsApp communication pointed to by Ms Kelsey in this Court. As stated earlier, having regard to DL, the Vice President was not required to undertake a minute explanation of every step in the reasoning process that led to his Honour's conclusion. The Vice President's reasons, to which I have referred, enable the parties to identify the basis for his Honour's decision about rejecting the adverse inferences sought to be drawn from them by Ms Kelsey.
  1. [308]
    For all these reasons, Ms Kelsey's complaint, that the Vice President gave inadequate reasons for rejecting her submissions about the adverse inferences to be drawn from the WhatsApp communications, is rejected.

The Councillors' submissions about the drawing of inferences in cases where civil penalties are sought

  1. [309]
    Having regard to the submissions made to the Vice President about the WhatsApp messages, the Vice President was being asked to draw inferences from that evidence which were adverse to the Councillors' credit in respect of their sworn reasons why they voted to terminate Ms Kelsey's employment.
  1. [310]
    By Ms Kelsey's application for final relief, she sought orders, pursuant to s 572 and  s 574 of the IR Act, for all the respondents to pay civil penalties to her.[333] In her final written submissions before the Vice President, Ms Kelsey described the decision of the Councillors to dismiss her as '… perhaps the most egregious example of corrupt public administration which has ever been considered by the Queensland Industrial Relations Commission.'[334] Civil penalty orders were pressed in Ms Kelsey's final trial submissions.[335] The Councillors submitted[336] that, insofar as Ms Kelsey sought to rely on the drawing of inferences from the WhatsApp messages, because the proceeding before the Vice President was one for the imposition of a civil penalty, then, in such a case, inferences will not be drawn if they are one of a number of inferences which are equally open, citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission ('CEPU').[337] In that case, the Full Court of the Federal Court of Australia held:
  1. [38]
    Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. FRIs, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that Edison and the CEPU had made a contract or arrangement or arrived at an understanding within the meaning of s 45E(3) (Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 at [34] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; see too Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 per Dixon, Williams, Webb, Fullagar and Kitto JJ).
  1. [311]
    In her reply, Ms Kelsey submitted that:
  • the reliance on CEPU was inapt because that decision dealt with a civil prosecution where the respondent authority bore the legal and evidential burden;
  • assuming CEPU applies to a general protections matter, it cuts across the Councillors' argument because if two competing inferences were open, one inculpatory and one consistent with an innocent hypothesis, it was the Councillors who bore the burden of showing that the latter was more likely than not; and
  • the question of whether competing inferences are equally open is a matter for the trier of fact and she was deprived, in material respects, of understanding how the Vice President '… weighed competing inferences by the reference to the whole of the evidence.'[338]
  1. [312]
    I reject the last dot point in the previous paragraph for the reasons I have given earlier about the adequacy of the Vice President's reasons regarding his Honour's conclusion concerning the probative value of the WhatsApp communications. In support of the proposition contained in the first and second dot points in the previous paragraph, Ms Kelsey referred to Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) ('Big Star'),[339] where Banks-Smith J stated:
  1. [31]
    ASIC bears the onus of establishing that the inferences for which it contends should be found to exist on the balance of probabilities: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; 242 ALR 643; [2007] FCAFC 132 (CEPU v ACCC) at [38] (Weinberg, Bennett and Rares JJ). An endeavour by Mr Cruickshank to show that there is an alternative innocent hypothesis will only be useful if the hypothesis is ‘more likely than not’. In that context, and unlike the criminal law, it will not suffice to point only to the fact of a reasonable hypothesis consistent with innocence: ACCC v Air New Zealand at [478]–[481].
  1. [313]
    In making these submissions, Ms Kelsey did not distinguish between the claim she made and relief she sought under the IR Act and the claim she made, and various forms of relief she sought, under s 51 and s 52 of the PID Act as set out in her application for final relief.[340] As Ms Kelsey submitted to the Vice President, '… no such reverse onus of proof' applied in relation to Ms Kelsey's allegation of reprisal action under the PID Act.[341]
  1. [314]
    The Councillors referred[342] to the decision in Bradshaw v McEwans ('Bradshaw')[343] where Dixon, Williams, Webb,  Fullagar and Kitto JJ stated:

In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.

  1. [315]
    The Councillors submitted that Ms Kelsey's submissions seek to elevate the presumption, that exists in cases like this, to something which changes the statement referred to in Bradshaw. That is, according to the Councillors, Ms Kelsey submits that if there are two inferences and they are equal, then the inference that she seeks to draw must be preferred because '… we bear the onus of proof' (because of s 306(2) of the IR Act). The Councillors submitted that was not the case and that either inferences are proved or are not, and further:

Now, if the applicant’s inference isn’t proved because it’s not more probable than the other one, it’s not proved. If ours isn’t proved because it’s not more probable than theirs, it’s not proved. You’re left with the facts but no inference.[344]

  1. [316]
    The Councillors then referred[345] to the decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union,[346]  where Barker J stated:
  1. [42]
    So far as inferences are concerned, in Holloway v McFeeters (1956) 94 CLR 470 (Holloway), Williams, Webb and Taylor JJ, in a joint judgment, at 480, note that inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. Their Honours referred, at 480-481, to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) which made the following points (by reference to authority), at 5:
  • In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged.
  • Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference.
  • They must do more than give risk to conflicting inferences of equal degree of probability so that the choice between them is (no) mere matter of conjecture.
  1. [43]
    In Bradshaw, the Court stated that, all that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury in issue in that case arose from the defendant’s negligence. By “more probable” is meant no more than that upon a balance of probabilities, such that an inference might reasonably be considered to have some greater degree of likelihood.
  1. [317]
    In respect of the decision in Big Star, the Councillors submitted that:
  • the passage relied upon by Ms Kelsey does not state that the burden of proof has any impact on the drawing of inferences and that, ultimately, if a party bears the burden and it does not establish a fact which is a material fact in relation to the case, then it will fail; and
  • it is not the case that because '… we bear the onus of proof', any inference that Ms Kelsey puts up, unless it is disproved, must have been accepted because there is no more compelling inference.[347]
  1. [318]
    I accept the Councillors' submissions. This is for a number of reasons.
  1. [319]
    First, as referred to earlier in these reasons, before the Vice President, Ms Kelsey submitted that the WhatsApp communications in evidence demonstrated her alignment claim between Mayor Smith and the Councillors and that those messages '… allow the Commission to draw an inference against them [the Councillors] in terms of the reliability of their reasons for termination.'[348]
  1. [320]
    Secondly, the passage in Big Star does not support the proposition contended for by Ms Kelsey. Ms Kelsey's submissions do not distinguish between the legal burden of proof and the evidential burden, sometimes referred to as the tactical burden. As Owen J stated in Bell Group Ltd (In liq) and Others v Westpac Banking Corporation and Others (No 9):[349]
  1. [2687]
    The two principal burdens of proof are the legal burden of proof and the evidential burden. The legal burden of proof has been defined by the authors of Cross on Evidence (7th Aust ed, 2004) as the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved or disproved. The evidential burden has been defined as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.
  1. [321]
    Thus, a respondent will carry a tactical burden to adduce evidence on any matter that the moving party must overcome in discharging its legal burden. In such a case, the ‘tactical burden’ is simply another name for the need to adduce evidence at the point where the other party has led sufficient evidence to establish a proposition in dispute and while the legal burden never shifts, the evidential burden may move backwards and forwards between the parties.[350]
  1. [322]
    Thirdly, contrary to Ms Kelsey's submissions about the legal burden of proof and the drawing of inferences, a similar, although not identical, issue was clarified in Adams v Director of the Fair Work Building Industry Inspectorate,[351] where, at [122], North, Dowsett and Rares JJ stated:

We have previously pointed out that in civil trials, the evidential burden will be satisfied if the trial judge considers that there is sufficient evidence of the matter in question to justify leaving it to the jury. In a trial by judge alone, such a test may seem a little artificial. However it has utility where a party, who might eventually bear the legal onus, does not call evidence on that issue. If the other side can point to evidence which would justify the Court in inferring a conclusion unfavourable to the party bearing the legal onus, then it inevitably follows that such party has not discharged its legal burden. That result follows, not because the party bearing the evidential burden has discharged the legal burden, but because that party has raised an available inference to that effect, which inference has not been displaced.

  1. [323]
    In respect of Ms Kelsey's claims under the IR Act, s 306(2) of the IR Act relevantly provides that the person is presumed to have taken adverse action for a particular contravening reason, or for a particular contravening intent, as alleged, unless the person proves otherwise. For the reasons given above, my view is that s 306(2) of the IR Act does not affect the evidential burden on a party, when it arises, who seeks to establish an inference about a material fact in issue.
  1. [324]
    Fourthly, in respect of serious wrongdoing in civil proceedings or in a serious civil penalty case – which this was, given Ms Kelsey's description of the matter as described above in paragraph [310] and given her application for civil penalties – a party who relies on circumstantial evidence must show that the circumstances raise the more probable inference in favour of what is alleged, even though the conclusion may fall short of certainty. However, it is not sufficient that the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility or that the choice between them can only be made by conjecture. There must be objective facts from which the inference could be drawn, otherwise what is left is mere conjecture. Generally, the proper inference to be drawn on the balance of probabilities depends upon a practical and reasonable assessment of the evidence as a whole.[352]

Specific WhatsApp messages

  1. [325]
    As referred to earlier, Ms Kelsey's submission was that the WhatsApp messages were a key circumstantial part of the case against the Council and the Councillors. I will now deal with Ms Kelsey's further submissions that the WhatsApp messages '… speak for themselves' and:
  • established a political, personal and strategic alliance between Mayor Smith and the Councillors at least in relation to her employment;[353] and
  • showed the members of the group were part of the self-described 'team' and demonstrated the participants in the relevant groups strategising among themselves about how they should deal with Ms Kelsey's public interest disclosure and related Commission proceedings.[354]
  1. [326]
    When Ms Kelsey was addressing the Court about these matters, either in written or oral submissions, it was not always clear if the complaints being made were about alleged inadequacy of reasons or if the complaints were about factual errors of the kind referred to in Fox v Percy or Earthline. In her principal written submissions, in part D.3[355] (and in part D.4[356]) Ms Kelsey bundled the complaints together. There was not always a bright line between the two contentions.[357] Because of the way the categories of complaint about the WhatsApp messages were argued, the impression I had was that many of the claims about alleged inadequate reasons were really about alleged errors of fact. Further, as the Councillors submitted,[358] Ms Kelsey's submissions about the WhatsApp messages '… seem to be directed at a submission, not fully articulated, that the Vice President ignored relevant evidence and this constituted an error of law' having regard to Sharman. As referred to earlier, Ms Kelsey submits that, on the authority of Sharman, an error of the kind referred to in Earthline is an error of law. For the reasons I have given earlier, I cannot accept that submission.[359]
  1. [327]
    When any such submissions about inadequacy of reasons are referred to below, unless I expressly state otherwise, I reject such a submission for the reasons I have given above about the Vice President's reasons for his Honour's conclusion about the WhatsApp communications.
  1. [328]
    Further, in respect of this category of complaint, Ms Kelsey refers to particular evidence in support of her submissions that the Vice President made the errors of the kind referred to in Fox v Percy or (mainly) Earthline. In this regard, the Councillors generally submitted that Ms Kelsey has not referred to incontrovertible evidence, or evidence of a compelling inference, against the sworn reasons given by the Councillors for voting to dismiss her.[360] For the reasons that follow, I accept the Councillors' submissions.
  1. [329]
    Ms Kelsey took the Court to a number of the WhatsApp communications that were before the Vice President. In making these submissions, Ms Kelsey submitted that it was important that the Court look at all of the WhatsApp messages that were in evidence, not just the ones to which she took me in written and oral submissions.[361] I record that I have done so.

WhatsApp messages allegedly demonstrating the participants strategising for proscribed reasons

  1. [330]
    Ms Kelsey, in a footnote to her principal submissions,[362] referred to three pages of examples of WhatsApp messages that she submitted demonstrated the participants were strategising among themselves about how they should deal with Ms Kelsey's '… PID complaint and related Commission proceedings.' I have read those communications.
  1. [331]
    Those communications do not demonstrate what is contended. The first two pages of those messages reveal participants expressing concern about a conflict of interest, namely, that Ms Kelsey, as chief executive officer, was handling the Council's response to a CCC investigation into the allegations she made. The third page concerns the participants expressing confusion about the process and timing about Ms Kelsey's probation, whether Ms Kelsey was pushing for a decision about her probation by having a hearing about her proceeding in the Commission at that time, and whether a hearing would let the truth come out. On the words used, it would be to engage in conjecture to conclude that the only reasonable and definite inference that could be drawn from this communication was that the participants were strategising about dismissing Ms Kelsey because of her public interest disclosure or the proceeding she commenced in the Commission.  The fourth page deals with setting up a meeting to discuss offers made by Ms Kelsey in respect of her proceeding in the Commission, at that time (December 2017) against the Council and Mayor Smith, or whether going to a hearing was the position to be adopted. These messages do not show that the more probable inference to be drawn is that the participants were strategising about dismissing Ms Kelsey because she has made a public interest disclosure or commenced the QIRC proceedings. They were clearly about the immediate position to be taken by the Council about that proceeding. As the Vice President found at [449] of the Primary Decision, there was nothing exceptional about the Councillors seeking some certainty by having the matter heard and determined by the Commission.

The Mitcham Council messages

  1. [332]
    Ms Kelsey referred to WhatsApp messages[363] regarding a January 2018 discussion between certain members of 'Fab 7' about bringing up, at a forthcoming Council meeting, her previous employment history at a local government in Victoria (the Mitcham Council) when she was forced to resign from her position. Ms Kelsey submitted that none of that history was relevant to her performance or her conduct within her employment with the Council or in the assessment of her '… PID complaint.' Ms Kelsey went on to submit that those communications could only have been relevant to the strategy for her employment to be terminated, because she made the PID complaint, as that history concerned her making a complaint with her former employer.[364] However, an equal or stronger inference was that the matter was raised because, as the Councillors submitted,[365] the evidence was that Ms Kelsey, and the relevant employment agency, had not previously disclosed that particular work history to the Council.[366] The communications, on their face, do not suggest the issue was raised because Ms Kelsey had made a public interest disclosure or commenced the QIRC proceedings. Again, conjecture is required to conclude that the more probable inference is the one pressed by Ms Kelsey. I accept the Councillors' submissions that, in these circumstances, it was unsurprising the Vice President did not draw the inference as suggested by Ms Kelsey.

Messages about support for Mayor Smith

  1. [333]
    Ms Kelsey then referred[367] to WhatsApp communications, between members of 'Fab 7' in December 2017, beginning with Mayor Smith thanking members for their support and Cr Swenson responding by stating: 'My heart is breaking for you & Andrea mate' and that in the New Year ' …we need to strategise together to work within the constrained/negative/seditious/toxic environment we seem caught in, to render those evil monsters invisible and get on with delivering the exciting vision you have. Here for you mate!' In oral submissions, Ms Kelsey submitted that because the Vice President did not refer to this evidence, it exposed '… a real gap in the reasoning' and that the evidence was '… explained by the PID and the proceeding launched by Ms Kelsey.'[368]
  1. [334]
    In written and oral submissions to this Court,[369] reference was then made to other members subsequently expressing support for Mayor Smith, including different members stating, 'Amen to that', 'Stand tall', '…don’t show the hyenas any weakness', another stating that these '… investigations will prove that you're clear' followed by another describing Cr Swenson as '…the best team player.' In oral submissions,[370] Ms Kelsey referred to the cross-examination of Cr Swenson about his heart '… breaking' for Mayor Smith, which Cr Swenson explained by reference to all the allegations being made against Mayor Smith at that time. Again the submission was that the Vice President did not refer to this evidence.
  1. [335]
    In terms of any contention of there being an Earthline error, I have read all of the communications over this specific period referred to by Ms Kelsey, not just the specific ones referred to by her.  The reasonable and definite inference Ms Kelsey seeks to be drawn cannot be drawn from these communications. As the Councillors submit,[371] on their face, these communications do not concern Ms Kelsey making a public interest disclosure or commencing the QIRC proceedings. They concern the investigations being undertaken into, or about, Mayor Smith. Further, the reference to '…evil monsters' and to '… the hyenas', being in the plural, is a more probable reference to the group of other councillors who did not share Mayor Smith's '…exciting vision' for the Council. Conjecture is required to accept the inferences sought to be drawn by Ms Kelsey.

Messages about having the backs of others

  1. [336]
    Next Ms Kelsey referred[372] to communications from Mayor Smith in the New Year of 2018 expressing best wishes, stating that he would have the backs of 'Fab 7' members, thanking them for having his back and expressing his hope of triumph for them all in 2018. In oral submissions, Ms Kelsey referred to Cr Dalley's evidence in one of her communications where she said that they knew they all supported one another.[373] Ms Kelsey also referred to Cr Smith's evidence in cross-examination that he '… had the Mayor's back.' [374] Ms Kelsey's oral submission about this evidence was that it was '… potentially probative' and it was not referred to by the Vice President.[375]  In terms of fact finding, while this evidence does support the inference that the members of that team had common goals about the running of the Council,[376] it can only be by conjecture to conclude that the more probable inference was that their being part of such a group meant that they voted to dismiss Ms Kelsey for a proscribed reason.

Messages critical of Ms Kelsey's initial affidavit

  1. [337]
    Reference[377] was then made to members of 'Team Awesome 2018' being critical of Ms Kelsey's initial affidavit, filed in early 2018, in support of her initial Commission claim against the Council and Mayor Smith made in December 2017. The first three paragraphs of the communication, to which I was taken, were about the authors' views of Ms Kelsey's affidavit. I have read those communications.  Ms Kelsey submitted that while the communications were critical of the affidavit and did not mean that the authors were motivated by a proscribed reason, '… the tenor of the criticism, and the vitriol' was not explained by a mere difference of view about a fact or about her performance.[378] The authors' criticisms are of the content of Ms Kelsey's affidavit. That is the only reasonable conclusion open. To draw the inference sought by Ms Kelsey is to ignore the words used and to engage in conjecture. It requires speculation to conclude that the only reasonable and definite inference open is that the authors' views of Ms Kelsey's affidavit express some undefined sinister view of Ms Kelsey.

The hearing on 25 January 2018

  1. [338]
    Ms Kelsey then referred to certain WhatsApp communications posted just before Thursday, 25 January 2018, which was the date Industrial Commissioner Fisher was due to hear her initial application filed on 1 December 2017.  Ms Kelsey submitted that her probation was due to end on Tuesday, 30 January 2018. At that time, the respondents were the Council and Mayor Smith. On 25 January 2018, Ms Kelsey sought interim orders, pursuant to s 51 of the PID Act and s 314 of the IR Act, until the final hearing and determination of her application, namely:
  • that the Council not consider or vote upon any resolution in respect of her employment, whether pursuant to a probationary process or otherwise, except in relation to a positive vote confirming her employment; and
  • that Mayor Smith take no part in any resolution by the Council in respect of her employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the Council.[379] 
  1. [339]
    Ms Kelsey, in her principal submissions to this Court, stated:[380]
  1. 86.The WhatsApp messages disclose the following additional text messages sent shortly before the Thursday, 25 January hearing:

'Im declaring tomorrow BREAKTRHOUGH THURSDAY! Where we see the walls of opposition crumble under the weight of truth. And the traps trying to be set to bring Luke and the City down will snap shut on those who are lying and trying to set them. So if you're partial to say a prayer, let's all pray that God will help bring BREAKTRHOUGH tomorrow so we can all do a victory dance on Australia day'Kelsey v Logan City Council (No. 5) [2024] ICQ 15

  1. 87.That was followed by another set of texts:

'Amen let the Karma rain down

Praying for Luke and our great city, may this nightmare be over so we can make this wonderful city shine'.

  1. 88.The following critical text was then sent on in the 'Team Awesome 2018' WhatsApp chat on 24 January 2018 by the Mayor:

'Hi all - pending a positive outcome tomorrow we need to have a very clear understanding on what will happen on Tuesday. Since I will not be able to participate in any discussion regarding the probation – I would suggest an urgent strategic meeting be held so you can support the Deputy Mayor and everyone knows what is planned and needs to happen. I would like to suggest a meeting at 2:00pm on Sunday – Cr Breene has suggested the meeting room beside her office in Beenleigh, however, I am also happy to host you all at my home if we don't want to have a record of entry into a Council building. I am aware that you may not be able to make this at such short notice, but if we could get even half of us there that would be helpful – Thoughts?'

  1. 89.The implication of that message is obvious: the Mayor was contemplating the participants strategising together about how the mechanics of Mr [sic] Kelsey's probation vote (then scheduled for Tuesday, 30 January 2018) was to occur. That this particular meeting ultimately did not go ahead is beside the point.
  2. 90.The commonality of interest and references to strategising as part of a team are all telling and the messages referred to above were simply not dealt with by the Vice President. More concerningly, however, the Vice President made no reference to the fundamental inconsistency in the individual respondents' evidence that they did not discuss their intentions as to how they would vote, and only discussed Ms Kelsey's employment in formal meetings attended by all councillors. The most direct and inconsistent evidence in that regard is:
  1. (a)
    Cr Sweson's [sic] affidavit statement:

'I deny that I met privately with any other Councillor to discuss Ms Kelsey's appointment. Rather, the only time I participated in any discussions about Ms Kelsey's appointment were during the meetings of all Councillors, which often included the Council's legal advisers.'

  1. (b)
    Cr Smith's affidavit statement:

'At no time during Ms Kelsey's employment did I attend any meeting to discuss Ms Kelsey's employment, other than those meetings which were scheduled and attended by all Councillors.

In particular, I deny any allegation that I met privately with the Councillors named in this proceeding for the purposes of discussing Ms Kelsey's employment.'

  1. (c)
    Cr Dalley's affidavit statement:

'I deny that I have met privately with any other Councillor for the purpose of discussing the upcoming vote about Ms Kelsey's appointment and further deny that I discussed my reasons for voting on this motion with the Mayor, or that the Mayor attempted to speak to or influence how I vote'.

  1. 91.That evidence cannot be reconciled with the contents of the above WhatsApp messages, and no reconciliation was attempted in the Vice President's reasons.
  1. [340]
    In her oral submissions to this Court, Ms Kelsey submitted:
  • the messages referring to '… karma' and 'Praying' are not explained by '… run of the mill performance issues or concerns' or by Ms Kelsey being too close to the minority non-respondent councillors; and
  • those messages have links to earlier messages about delivering Mayor Smith's vision and those messages could not be about the minority non-respondent councillors, who could not be removed, and the only person who could be removed was her (Ms Kelsey) such that the '… karma' and 'Praying' messages are not consistent with '… an innocent hypothesis.'[381]
  1. [341]
    In further oral submissions, Ms Kelsey submitted that in respect of the extracts of the affidavit evidence of Crs Swenson, Smith and Dalley referred to above, while there is no inconsistency between their affidavit evidence and the WhatsApp messages, '… those extracts tell only part of the story' and the Vice President did not feel the need to reconcile those extracts with '… what the WhatsApp messages clearly said for themselves.'[382] 
  1. [342]
    The Councillors submitted, in respect of the above paragraphs of Ms Kelsey's submissions to the Court:
  • in respect of paragraphs 86 and 87, it is not surprising they (the Councillors) wanted the Council to succeed in that hearing and that the most likely inference is they wanted the Council to succeed because they did not agree Ms Kelsey should have the relief she sought, namely, the prohibition on the democratically elected Council voting in respect of her employment, and further, nothing suggests that the Councillors were motivated to take adverse action against her for a proscribed reason;
  • in respect of paragraph 88, insofar as Ms Kelsey relies upon the message by Mayor Smith proposing that there be a discussion, in his absence, about what should happen if the Council was unsuccessful before Industrial Commissioner Fisher, that reliance is misplaced because:
  1. –the message was not put to all of the Councillors (that is, the Third to Ninth Respondents), only to Cr Dalley and Cr Breene;
  2. –there was evidence that the meeting was proposed in the event the Council was unsuccessful before Industrial Commissioner Fisher and an order was made preventing the Council voting on Ms Kelsey's employment; and the fact that the sitting councillors would wish to discuss what to do in those circumstances is entirely unsurprising;
  3. –there was evidence from Cr Breene that the meeting did not go ahead because the Councillors received legal advice they should not hold such a meeting;
  4. –the message involved a proposal from Mayor Smith and the fact that the Councillors did not come into that proposal is telling; and
  5. –the fact that Mayor Smith thought such a meeting was required indicates that there was no consensus as to what was to occur and, if they had been such a consensus on what was to happen to Ms Kelsey, there would have been no need for such a meeting; and
  • in respect of paragraph 90, the submission is wrong because those WhatsApp communications do not reveal any discussions as to how they would vote in respect of Ms Kelsey's employment and none of the affidavit evidence, identified in paragraph 90, sub-paragraphs (a), (b) or (c) of Ms Kelsey's principal submissions, are inconsistent with any of the messages and, for that reason, no reconciliation was required by the Vice President.[383]
  1. [343]
    I did not understand Ms Kelsey to dispute the Councillors' submission that the message from Mayor Smith, referred to above, was only sent to Cr Dalley and Cr Breene. In oral submissions, Ms Kelsey submitted that the references to '… karma' and to '…BREAKTHROUGH THURSDAY' certainly showed how '… two people were planning on voting, eventually.'[384]
  1. [344]
    There was evidence from Cr Dalley, in cross-examination, that the members of the WhatsApp group (Team Awesome 2018) and the rest of '… the council' needed a way forward, in the event the Council was unsuccessful before Industrial Commissioner Fisher and the Council was prevented from voting on Ms Kelsey's employment.[385]  When giving that evidence, Cr Dalley accepted that, in terms of the meeting being proposed, it would just be for the members of that WhatsApp group and not the minority councillors because there '… was no trust at this point'.[386] Such a meeting did not occur.
  1. [345]
    I understand the inference sought to be drawn by Ms Kelsey from those particular WhatsApp communications. However, it then requires conjecture to conclude that the only probable or plausible inference to be drawn is that the meeting was to take place to discuss the strategy of terminating Ms Kelsey's employment because she had made the public interest disclosure or because she had, in fact, commenced those proceedings in the Commission. Such an inference, as sought by Ms Kelsey to be drawn from those particular communications, is not reasonable and definite. The other equally available inference that is reasonable and plausible is that suggested by the Councillors, namely, that there needed to be some discussion, at least between some of the Councillors, about what the Council should do if it was injuncted from voting about Ms Kelsey's employment. As stated, that meeting did not occur. For all these reasons, there is nothing in the affidavit evidence of Cr Swenson, Cr Smith or Cr Dalley, as pointed to by Ms Kelsey, that is inconsistent with those WhatsApp communications.
  1. [346]
    In these circumstances, it is unsurprising that the Vice President did not expressly refer to those particular communications. As referred to earlier, the Vice President identified the main factual findings upon which his Honour relied, in dealing with the submissions made by Ms Kelsey at trial, about what may be taken from the WhatsApp communications. The Vice President explained his reasons for rejecting Ms Kelsey's submissions about the WhatsApp messages.
  1. [347]
    For the reasons I have given, no inference can be drawn, as sought by Ms Kelsey, such that there is a Fox v Percy or Earthline error. There is no relevant incontrovertible evidence and no relevant contrary compelling inference.

The Councillors' alleged 'disingenuous' evidence about the WhatsApp communications

  1. [348]
    In her principal written submissions, Ms Kelsey contended that, by reference to selected parts of their affidavit evidence, Cr Pidgeon, Cr Swenson, Cr Smith, Cr Schwarz and Cr Breene '… gave very general evidence as to innocuous contents' of the WhatsApp messages at the time before Cr Dalley voluntarily provided to her (Ms Kelsey) the WhatsApp messages that had been deleted and recovered by the CCC.[387] Ms Kelsey then submitted that the fundamental inconsistency between the Councillors' disingenuous evidence as to '… the nature and tenor of the contents of the WhatsApp messages [that were in evidence][388] was not dealt with' in the Primary Decision.[389]
  1. [349]
    In oral submissions, Ms Kelsey submitted that the Vice President did not deal with how his Honour could reconcile '…the inconsistency between what the evidence in the WhatsApp says, black and white, versus what they said in their evidence, at a time when the WhatsApp materials were not before Ms Kelsey or the court.'[390]
  1. [350]
    Leaving aside the issue about whether the evidence of the Councillors about the content of the WhatsApp messages was disingenuous, I was not directed to any submission made before the Vice President about this precise issue as is now made on appeal. If no such submission was made before the Vice President, it is not surprising that his Honour did not deal with that matter. In any event, as stated, the major issue pressed by Ms Kelsey before the Vice President, about the WhatsApp communications, was the adverse inferences to be drawn from them having regard to the Councillors' sworn evidence about their reasons to vote to dismiss Ms Kelsey. The major issue pressed was not what adverse inferences may be drawn from some of the Councillors' general descriptions about the nature of the communications. No error of inadequacy of reasons arises.
  1. [351]
    Further still, I have read all of the affidavit evidence of Cr Pidgeon, Cr Swenson, Cr Smith, Cr Schwarz and Cr Breene, by which they describe the contents of the WhatsApp messages, as referred to by Ms Kelsey. When regard is had to the entirety of that affidavit material, not to just the particular parts referred to by Ms Kelsey, it is a mischaracterisation of the evidence of each of those Councillors, when they discuss their recollection of what was discussed on WhatsApp, to describe the evidence to be '… disingenuous.'
  1. [352]
    Councillor Pidgeon, in addition to stating what was referred to by Ms Kelsey, also swore that most of the conversations were in the nature of light hearted jokes about Council business or personalities and occasionally a substantive matter would come up, but that '…my best recollection is that the messages were mainly Councillors venting or joking about things that had happened at work.'[391]
  1. [353]
    Councillor Swenson, in addition to stating what was referred to by Ms Kelsey, also stated that to the best of his recollection, the discussions on WhatsApp '… could best be described as a mixture between banter between work colleagues and occasional chat about work issues.'[392]
  1. [354]
    Councillor Smith, in addition to stating what was referred to by Ms Kelsey, also stated that to '… my mind, the WhatsApp group was a chat group between colleagues about day to day work grievances.'[393]
  1. [355]
    Councillor Schwarz, in addition to stating what was referred to by Ms Kelsey, also stated that she recalled one occasion where she used the WhatsApp group to vent her frustrations '… regarding Ms Kelsey's "CEO updates" and my difficulties with accessing the mowing schedule.'[394]
  1. [356]
    Councillor Breene did state what was referred to by Ms Kelsey, namely, that to the best of her recollection, '… most of the discussion on the group chat was about benign day to day things such as what people were doing outside of Council, or issues of interest which may have been occurring around Council.'[395]
  1. [357]
    The Councillors submitted that none of the messages identified by Ms Kelsey in her submissions are inconsistent with the way in which the various Councillors described their participation '…in the Whats App meeting.[396]
  1. [358]
    I have read the WhatsApp messages. There were some direct communications about Ms Kelsey's probation and the proceedings she commenced in the Commission in late 2017; and, as the Vice President found at [780], there were communications that reflected a depth of feeling about the deep-seated divisions between the factions on the Council. However, having regard to all of what those Councillors said in their relevant affidavits as I have set out above – namely, the references to participants occasionally discussing a substantive matter, to one participant venting her frustrations about a Council issue, to one participant referring to '… occasional chat about work issues', to one participant stating they discussed '… day to day work grievances', and to one participant stating they discussed '… issues of interest which may have been occurring around Council' – and having regard to all of the WhatsApp communications in evidence, I cannot accept that their descriptions of the WhatsApp messages, made from their memory, are fairly and properly described as '… disingenuous.'
  1. [359]
    Further, as the Vice President found at [783], the WhatsApp messages did not reveal any degree of co-ordination of approach or any direction as alleged by Ms Kelsey; and they did not reveal that the Councillors made their decision to terminate Ms Kelsey's employment for a proscribed reason. Further still, as his Honour found at [784], there were no WhatsApp messages suggesting how Councillors should vote or enquiring how they proposed to vote, and the messages did not reveal an assignment of task or a co-ordination of effort or approach. There was one unattributed message (discussed in detail later) which stated, by offensive terms, that the author did not want Ms Kelsey to remain employed.  However, the content of that communication is not inconsistent with these findings by the Vice President.
  1. [360]
    No error of fact arises in respect of this particular complaint that can be said to vitiate the Primary Decision.

Psalms 7:14-16

  1. [361]
    Ms Kelsey then pointed[397] to a message which referred to the New Living Translation of Psalms 7:14-16.[398] The Biblical reference was from Cr Swenson[399] and was made on the same day as the messages that were critical of Ms Kelsey's affidavit. At paragraphs [577]-[581], the Vice President referred to the Biblical reference and to the cross-examination of Cr Swenson about it. While the Vice President did refer to the '… bizarre nature of the posts', his Honour accepted that by some of his messages, Cr Swenson questioned the accuracy of Ms Kelsey's affidavit, but rejected any claim that he was minded to take action against Ms Kelsey for a proscribed reason.
  1. [362]
    Ms Kelsey then submitted[400] that (at paragraph [580]) the Vice President erred because his Honour found this particular communication of Cr Swenson (about                                Psalms 7:14-16) related to Cr Power and Councillor Lisa Bradley ('Cr Bradley'). I cannot accept that submission for three reasons.
  1. [363]
    First, at paragraph [580] the Vice President stated that Cr Swenson's messages '…are expressed in the plural and relate mainly[401] [not solely][402] to the conduct of Councillors Power and Bradley.' Secondly, in paragraph [575] the Vice President referred to an earlier message by Cr Swenson where he referred to '… their wicked schemes come back to trap them.' In paragraph [578], the Vice President referred to the evidence given in cross-examination by Cr Swenson about the Biblical reference where Cr Swenson gave evidence about the '… fact that the environment we found ourself in was toxic' and, when giving that evidence, expressly referred to Cr Power and Cr Bradley and their attempts to '… get rid of the mayor.'  Thirdly, in paragraph [580] the Vice President also found that some of Cr Swenson's posts '… were critical of Ms Kelsey.' Having regard to these paragraphs in the Primary Decision, no error of any kind is made out. The reference to '… mainly the conduct of Councillors Power and Bradley' in paragraph [580] is clearly derived from all the messages and evidence to which the Vice President referred in paragraphs [575]-[580]. The Vice President clearly accepted the veracity of Cr Swenson's evidence in cross-examination about the messages. No error of fact arises.
  1. [364]
    At paragraph 104 of her principal submissions, Ms Kelsey submitted that Cr Swenson's messages (referred to in paragraphs [575] and [577] of the Primary Decision)  could not be sidelined by reference to them as bizarre and they '… are evidence of an extraordinary level of animus that is not rationally explicable by reference to the lawful reasons that Cr Swenson said motivated his decision on the termination vote.' I cannot accept that submission.
  1. [365]
    For the reasons given above, the equally plausible inference that can be drawn from those messages is that Cr Swenson was mainly referring to the conduct of Cr Power and Cr Bradley to try to remove Mayor Smith.  Conjecture is required to make the sole choice of inference pressed by Ms Kelsey. As the Councillors submitted,[403] the alternative inference to that pressed by Ms Kelsey is supported by the conclusions reached by the Vice President in paragraphs [781] and [782]. These were that Cr Swenson believed that Ms Kelsey had unknowingly started to be a pawn in the attempt by Cr Power and Cr Bradley to get rid of Mayor Smith and that, overall, the Councillors formed the view Ms Kelsey had become partisan and that her position was untenable, which explains the level of animus expressed by Cr Swenson. The alternative inference pressed by the Councillors is equally, if not more, probable.
  1. [366]
    At paragraph [582], the Vice President found that the evidence did not provide a basis to conclude that Cr Swenson was actuated by a prohibited reason. Councillor Swenson was extensively cross-examined.[404] Having regard to paragraphs [567]-[581] (headed 'Assessment of Cr Swenson's evidence') of the Primary Decision and, in those paragraphs, the reference to the evidence Cr Swenson gave in cross-examination, the finding in paragraph [582] was likely to be affected by the Vice President's impressions about the credibility and reliability of Cr Swenson formed by the Vice President hearing and seeing Cr Swenson give evidence. In these circumstances, I must show restraint in interfering with the Vice President's findings about the credit of Cr Swenson. Further still, for the reasons given above about Cr Swenson's WhatsApp communications, none of them support the conclusion that the only probable inference was that Cr Swenson was motivated to vote to dismiss Ms Kelsey because she made the public interest disclosure or commenced the proceedings in the Commission. The WhatsApp communications by Cr Swenson, pointed to by Ms Kelsey, are not incontrovertible facts contrary to the findings made by the Vice President. Further, those WhatsApp communications do not give rise to any probable inferences to conclude that the Vice President's findings were glaringly improbable or contrary to compelling inferences.

The communication about Ms Kelsey being hit by the door on the way out

  1. [367]
    Ms Kelsey submitted[405]  that it was the case that the WhatsApp messages did not disclose any lobbying by the participants '… as to how and why they should vote to dismiss Ms Kelsey.' This was said to be because, by early January 2018, the participants '… had no doubt about how or why they would be voting', which was a conclusion  to be inferred from WhatsApp communications in 'Fab 7' which discussed Mayor Smith's and the Councillors' response to the interim orders Ms Kelsey was seeking before Industrial Commissioner Fisher. In this regard, Ms Kelsey referred to WhatsApp messages from Cr Dalley about advice she had received from the Council's solicitor, in early January 2018, about Ms Kelsey's application at that time, before Industrial Commissioner Fisher, to extend her probation '…until hearings are over in April' (2018).[406]
  1. [368]
    Ms Kelsey then submitted:[407]
  1. 93.There then followed two sets of responses (although where one begins and the other ends is difficult to say from the text of the messages themselves):

'I am available up to the 8th Please be advised that I am taking my wife on a cruise from 9th January through to the 13th January so I will not be contactable.

In order to avoid any confusion on this matter my position is to not extend the probationary period and to make sure the door is two way and does hit Ms Suess hard ... twice ... once in the face and then on the arse on the way out come the 30th January. No hold on ……. make that twice in the face.

I will not support being sucked into power play games and be manipulated.

Enough is enough. I'm just down at the coast from the 30th So can easily cruise up for a meeting Would prefer to be face to face rather than on the end of a telephone line'

  1. 94.The Vice President declined to attribute the Ms Seuss comment to any of the individual respondents, although he must be taken to have accepted that one of them made it. The reasons are inadequate because they do not disclose any consideration of Ms Kelsey's submission that the post was not one that was easily forgettable and the fact that none of the councillors admitted to who made the post (plainly because of how damaging it was), which must have necessarily affected the credibility of their evidence. No reference to that matter was made in the reasons.
  2. 95.In any event, further WhatsApp exchanges confirm that Cr Dalley was not troubled by the Mayor's exclusion from any vote on Ms Kelsey [sic] future. In that context, she wrote:

'Having said all of that, I still believe that we have numbers to tell CEO NO! No? No!!'

  1. 96.That was also in the context of an admission by Cr Dalley[408] that she 'had the Mayor's back'
  1. [369]
    The Councillors submitted that:
  • while the Vice President did not refer to the precise submission about the Councillors not being able to remember who sent the message (about the door hitting Ms Kelsey on her way out),  the Vice President, at [533], found that while the message was offensive, it had no probative value in respect of whether the Councillors voted to terminate Ms Kelsey's employment for a proscribed reason, such that the question of whether anyone could remember sending the message became irrelevant; and
  • in respect of Cr Dalley's communication – that she was not troubled by Mayor Smith's exclusion from any vote about Ms Kelsey's future – her evidence in respect of that message was that it concerned the request, by Ms Kelsey, that her employment continue until after the final hearing of her proceeding and was not connected with what would occur at a meeting in respect of Ms Kelsey's employment; and Cr Dalley's further evidence was that she did not know how the vote would proceed.[409]
  1. [370]
    Councillor Pidgeon was the first Councillor cross-examined about the '…door' message. At paragraphs [532] to [534] of the Primary Decision, the Vice President stated:[410]
  1. [532]
    The maker of the statement is unknown.  Cr Pidgeon denied making it.  It was submitted by the Applicant that the contribution was, "... a visceral expression of animosity towards her which could only be explained as a reaction to her making of the PID, which, as revealed by this and several other posts, was seen by members of the WhatsApp group as an unjustifiable attack on the Mayor".  The submission went further by suggesting that it also shows an intention that Ms Kelsey would be gone at the time anticipating the date of the first probation extension to 30 January 2018.
  2. [533]
    It goes without saying that the post is unacceptable and offensive.  It does show animosity towards Ms Kelsey.  But it does not necessarily follow that the post can only be explained by reference to the lodging of the PID.  It demonstrates that the person making the statement had, as far as they were concerned, formed a view to terminate Ms Kelsey's employment.  There is no admission that the view of the person who posted the message formed that view because of the making of the PID or the commencement of these proceedings.
  3. [534]
    There is some force in the submission of the Third to Ninth Respondents that the existence of this message counts against the Applicant's underlying contention that the Second to Ninth Respondents colluded and knew how each other was going to vote in respect of Ms Kelsey’s employment.  If this were truly the case, there would be no need for a message of this type to have been sent.  The fact that such a message was sent is suggestive of the fact that the parties did not know each other's attitude towards Ms Kelsey’s employment.
  1. [371]
    No error is revealed in the way the Vice President dealt with that particular message. While the Vice President did not draw any conclusion about the failure of an individual to admit to authorship of the message, the Vice President, as the Councillors submitted, looked at the probative value of the message in respect of the central critical issue in the case, namely, whether it was evidence from which a conclusion could be reached that the author's decision not to maintain Ms Kelsey's employment was for a proscribed reason.
  1. [372]
    In oral submissions, Ms Kelsey submitted that the message about Ms Kelsey being hit by the door was made by Cr Swenson[411] and further submitted:

What his Honour missed was that that was evidence, as clear as any evidence in the WhatsApp discussions, of how a person was intending to vote, which then went again to this question of what was - what did everyone know?

Everyone denied that they knew how other people were voting. But Councillor Swenson made it pretty clear. He wanted “Ms Seuss” - and remembering, in the evidence, the “Ms Seuss” thing is explained by the fact that Ms Kelsey had some pictures of Dr Seuss in her office. So there’s no doubt about who that’s been referred to. Is that explained by some performance concerns? Is that explained by some general vague concerns that she was too close to the minority councillors?[412]

…

[W]hat his Honour seems to do there is, when faced with clear evidence of at least one person’s intent about how they were going to be voting, his Honour sweeps that away and it says - and his Honour says that that wouldn’t need to be said if, as a matter of evidence, everyone knew how people were voting. So he puts that to one side. But in other contexts, he again and again sees the absence of express will about how people were going to be voting as evidence that there was no coordination. So there’s an inconsistency in the reasoning there.[413]

  1. [373]
    The equally plausible and reasonable inference is that the author of that message did not want to extend Ms Kelsey's probation and did not want her to remain employed, but for reasons that were not proscribed. Further, the inference drawn by the Vice President in paragraph [534] of the Primary Decision is equally plausible, namely, that because such a message was posted by someone in Fab 7, that points to the members of that group not knowing each other's attitude towards Ms Kelsey's employment at that time. In any event, it is not the case that from the words used, the only reasonable and definite inference is that the author was going to vote to dismiss Ms Kelsey for a proscribed reason. 
  1. [374]
    Further, there is no inconsistency or inadequacy in the Vice President's reasoning as alleged. First, the inference that the message pointed to the members of Fab 7 not knowing each other's attitude towards Ms Kelsey's employment, at that time, is reasonable and definite having regards to the words used by the author, namely: 'In order to avoid any confusion on this matter my position is …'[414] Secondly, it was a fact that there were no other WhatsApp messages that revealed how any of the Councillors were going to vote so that, as the Vice President found at paragraph [784],  the WhatsApp messages did '… not reveal an assignment of task, a co-ordination of effort or approach.' There is no inconsistency or inadequacy of reasoning as alleged by Ms Kelsey.
  1. [375]
    In oral submissions, Ms Kelsey submitted, having regard to paragraph [533] of the Primary Decision, that:

[I]t is part of a broader problem with the judgment, that it just doesn’t grapple with evidence in a way that his Honour was required to as a matter of law. He looks at it in isolation, without having regard to how does it fit in with the rest of the WhatsApps? How does it fit in with their denials that they were all innocent, independent, acting on their own - for their own council people’s interest only.[415]             

  1. [376]
    For the reasons I have given earlier at paragraphs [291]-[308], about the adequacy of the Vice President's reasons, this submission cannot be accepted. The reasons given by the Vice President do not suggest that his Honour looked at the WhatsApp messages in isolation in considering what inferences may be drawn from them. As stated earlier, by paragraph [769] of the Primary Decision, the Vice President accurately summarised the inferences Ms Kelsey submitted should be drawn from the WhatsApp communications. Then, by his Honour's reasons at paragraphs [778] and [783]-[784] of the Primary Decision, it is clear that the Vice President had regard to the WhatsApp messages, as a whole, in dealing with Ms Kelsey's submissions about her alignment claim as part of her case that she was dismissed for a proscribed reason. The Vice President, in giving adequate reasons, was not required to deal with every argument and issue that arose. Ms Kelsey did raise a substantial argument about the WhatsApp messages which the Vice President did reject and, in doing so, the Vice President referred to that argument and assigned reasons for its rejection.
  1. [377]
    I have also had regard to the evidence given by Cr Dalley as referred to by Ms Kelsey in paragraph 95 of her principal submissions (referred to above in paragraph [368]).  Councillor Dalley was cross-examined about that communication she made. Councillor Dalley's evidence was that her assumption was that it referred to the seven Councillors and that they had the numbers not to extend Ms Kelsey's probation until April 2018 when the (final) hearing of her Commission application would take place.[416] Councillor Dalley's further evidence was that on the day of the vote, she '…didn't know they were going to vote to terminate.'[417]
  1. [378]
    It is equally plausible that the message was about having the numbers, in Mayor Smith's absence, not to agree to Ms Kelsey's request, at that time, to extend her probation until April 2018.
  1. [379]
    At paragraphs 105 and 106 of her principal submissions, Ms Kelsey referred to the '…very favourable inference' drawn by the Vice President, again about the message of Ms Kelsey being hit twice by the door on her face and then on '…the arse' on the way out. Ms Kelsey submitted that very favourable inference was unavailable on the whole of the evidence and further submitted:

Even if the various lawful performance and conduct issues that each of the councillors sought to rely upon were genuinely held, even in part, the above referenced message, as with many other expressions of animosity shown in the evidence, was out of all proportion with the feelings that such concerns would motivate in a rational person. The message is a further example of the misunderstanding (relevant to ground 1) of the task before his Honour. It also shows very clearly that the individual respondents knew at least how one of their group were going to vote in respect of Ms Kelsey's employment.[418]

  1. [380]
    In respect of these submissions, the Councillors submitted:[419]
  1. 88.A similar submission is made at [105] and [106] of the appellant’s submission.  For the same reasons they should not be accepted.  Each of the councillors gave different reasons for why they voted not to continue the appellant’s employment.  Whilst those reasons differed, there was some overlap.  A common theme in the complaints advanced by the third to ninth respondents was that the appellant had been disrespectful of their role as councillors and their authority.  Further, as the Vice President found, they considered that she had failed to remain impartial and became involved in a partisan sense with those councillors who they thought were not acting in the best interests of the council.  Such concerns are plainly capable of giving rise to high levels of animosity.
  1. [381]
    I accept this submission by the Councillors.
  1. [382]
    Each of the Councillors gave sworn reasons why they voted to dismiss Ms Kelsey.[420] While there was some overlap, they were not identical. It is unremarkable that, as individuals, the seven Councillors each gave differing reasons for their vote to dismiss Ms Kelsey. Each of the Councillors were extensively cross-examined by Ms Kelsey about their sworn reasons.[421] The Vice President, after summarising the evidence given by each Councillor, including by referring to some of their evidence given in cross‑examination,[422] and by having regard to aspects of the Councillors' submissions and, or alternatively, Ms Kelsey's arguments, then assessed the evidence of each of the Councillors and made findings of fact, favourable to the Councillors, about what motivated each of them to vote to dismiss Ms Kelsey.[423] Therefore it is very likely that the Vice President's factual conclusions about the Councillors' reasons for voting to terminate Ms Kelsey's employment were affected by his Honour's impressions about their credibility and reliability formed by his Honour seeing and hearing them give their evidence. The Councillors' submissions, about their commonly held theme of Ms Kelsey showing disrespect and partisanship, were findings of fact made by the Vice President at paragraphs [779]-[782]. Restraint therefore needs to be exercised with respect to the Vice President's factual conclusions about the Councillors' reasons. The issues of disrespect and partisanship, referred to by the Councillors, equally, if not more probably, explain the high levels of animosity clearly apparent in some of the WhatsApp communications.
  1. [383]
    Again, in respect of the particular unattributed communication referred to above, while it shows that one participant of that particular group would vote against Ms Kelsey remaining employed, it requires conjecture to conclude that the reason for that person's view was that Ms Kelsey had made the public interest disclosure or commenced the proceedings in the Commission. An equal, if not more probable inference to draw, is that those issues of disrespect and partisanship explain that person's views.

Other WhatsApp communications referred to by Ms Kelsey

  1. [384]
    In oral submissions Ms Kelsey referred to a number of other messages. Unless otherwise stated, I generally deal with the submissions made about alleged inadequacy of reasons about these messages at the end of my reasons about this sub-heading, that is sub-heading D.3 as identified by Ms Kelsey.
  1. [385]
    The first reference was to the following messages:

So it's 11:59pm. Family have gone home, my  family have hit the sack and I'm sitting here after cleaning up the kitchen contemplating what a blessed life I have. In the midst of the CRAP that has gone down of late, I have allowed it to steal my joy, let unrighteous anger grow, and shift my focus from the positive blessings I enjoy everyday. So this Christmas night, as I sit on the lounge I'm taking my joy back, purging my heart of unrighteous anger (don't worry, I'm still mad as a cut snake, but I'm putting hate away), and I'm refocusing on the positive blessings.

With that in mind, I'm thankful for the incredible, underserved blessing of the friendship & encouragement of this group. I thank God for sending you to bless & inspire me. To challenge and stretch me. To help make me in to a better version of me.

So Luke, Andrea, Cherie, Trevina, Jennie, Phil, & Laurie S, I want each of you to know you are loved, valued, appreciated, esteemed, admired, respected, celebrated and all round freakin' awesome.

Thanks mate. God bless and make good memories.

Nothing you ever gain will be undeserved Steve you deserve each & every blessing you get

Merry Christmas Cherie.[424]

  1. [386]
    The submission made was:

What did his Honour make of that exchange? How did it impact his findings if there was no alignment? That there was no motive on behalf of the individual respondents to terminate Ms Kelsey, notwithstanding that they’d got legal advice to be careful about how they did that or to be very cautious about how they approached that task.[425]

  1. [387]
    In terms of an alleged error of fact, these submissions cannot be accepted. At paragraph [767], the Vice President found that the evidence did not support a conclusion of political alignment and affiliation as alleged by Ms Kelsey. However, the Vice President at [768]:
  • accepted that the Councillors never contended that they were not friends and never contended that they did not have contact with each other outside of the confines of the Council; and
  • accepted that there was evidence before the Commission that, amongst the Councillors, there was a view that the five non-respondent councillors did not engage in any of the heavy lifting of the Council, that they did not have the best interests of Logan City in mind, and that they had a common dislike of Mayor Smith and sought to undermine him.
  1. [388]
    The equally available inference that can be drawn from the above WhatsApp communications, is that the '…CRAP' to which the first participant refers, relates to the evidence referred to by the Vice President about the Councillors' views of the non‑respondent councillors.
  1. [389]
    Ms Kelsey then referred[426] to the following message:

Hi all the CCC have ordered that I hand my phones over to Kirby to take back with her, so I will not be contactable. However, you are welcome to call me on Andrea's number when [sic] some of you have and I will use her WhatsApp so if you don't mind I will include her into this group.

When is this going to stop! Hope you're ok? Have you finished the delegation?[427]

  1. [390]
    Ms Kelsey submitted the first paragraph was posted by Mayor Smith and the second by one of the Councillors. Again, the submission was made that it is not known what the Vice President made of this[428] and that '…it's difficult to reconcile that other than with the desire to stop the process that was commenced by the PID.'[429]
  1. [391]
    I accept that the first sentence of the second half of the message probably refers to the CCC investigation of Mayor Smith. However, conjecture is required to draw the reasonable and definite inference that the author's desire for the process to stop involved the author being part of an aligned group planning to unlawfully retaliate against Ms Kelsey because she made the PID. The probable inference is that what the author desired to be stopped was the CCC investigation of Mayor Smith.
  1. [392]
    Next, Ms Kelsey referred[430] to the following Fab 7 messages sent between 4 and 9 January 2018, namely:

It's all very overwhelming Cherie and is certainly pulling us all down

I feel for everyone and staff are caught up in this mess also most unfavourably

No Christmas spirit this year

I have never felt so deflated in a workplace and so here I go using the word bullied

I cannot begin to imagine how luke and his family are feeling and also Jane

Good innocent people are being stripped

And I greatly feel for them

Just a complete mess!

I'm afraid so Jen

The sad part is it is people that are being destroyed

And all because of a couple of people who don't like to lose.[431]

  1. [393]
    Ms Kelsey submitted that '… we needed to understand what his Honour made of that, other than through a general impressionistic review of what he took of the WhatsApp accounts… We don't know what his Honour made of that exchange.'[432]
  1. [394]
    For the reasons I have given earlier, the Vice President, in giving reasons, was not required to undertake a minute explanation of every step in the reasoning process that led to his Honour's decision about the WhatsApp communications.  In any event, it would require conjecture to conclude that the only reasonable and definite inference that could be drawn from these messages is that they were about Ms Kelsey or that they point to the Councillors being aligned in respect of her unlawful termination. The obvious inference, from the words used, is that they are about the views held of Mayor Smith by some of the non-respondent councillors. It is unremarkable that the Vice President did not specifically refer to these messages.
  1. [395]
    Next Ms Kelsey referred to this message:

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 liars trying to undermine our Mayor, and that their wicked schemes come back to trap them.[433]

  1. [396]
    Ms Kelsey submitted that at paragraph [576] of the Primary Decision, the Vice President seemed to accept the denial from Cr Swenson that this message '… was a reference to Ms Kelsey and the lodgement of the PID and the commencement of her litigation' by his Honour reconciling that message by effectively stating that what Cr Swenson was referring to was the toxic environment in the Council. Ms Kelsey went on to submit that '… highlights the error that his Honour focused on that text without having regard to all of the other' messages referred to by Ms Kelsey.[434] I cannot accept this submission.
  1. [397]
    At paragraph [580] of the Primary Decision, the Vice President does refer to other messages made by Cr Swenson. Further, for the reasons I have given earlier, the Vice President's concluding reasons at paragraphs [769], [777]-[778] and [783]-[784], about the WhatsApp communications, clearly demonstrate that the Vice President understood the case Ms Kelsey was making about the content of the WhatsApp messages. Further, by referring to the main factual findings about the content of the WhatsApp communications, his Honour explained why he rejected the case made by Ms Kelsey about those communications; namely, the alignment claim and that the Councillors' sworn evidence, about why they voted to terminate Ms Kelsey's employment, should not be accepted. The fact that the Vice President did not refer to the specific messages, referred to by Ms Kelsey in this Court, does not mean his Honour's reasons are inadequate. Furthermore, as Ms Kelsey submitted to the Vice President in final oral submissions,[435] and as the Vice President stated in paragraph [769], the WhatsApp messages were not the sole matter upon which she relied to demonstrate her alignment claim.
  1. [398]
    Having regard to those communications, it cannot be said they give rise to a reasonable and definite inference that Mayor Smith and the Councillors were politically aligned such that they voted en masse to terminate Ms Kelsey's employment because she made the public interest disclosure and commenced the QIRC proceeding.
  1. [399]
    The Vice President found that there were two competing forces on the Council and that Ms Kelsey had been caught between the two of them. The communications referred to above (including the communication referred to in paragraph [395]) give rise to the probable inference that the matters to which reference is made are about the competing forces within the councillors on the Council. It is not the case that the only reasonable and definite inference to be drawn from the WhatsApp messages referred to by Ms Kelsey, as referred to in her written and oral submissions, is that Mayor Smith and the Councillors were politically aligned in relation to Ms Kelsey's performance, probation processes and employment matters, such that they would react adversely to a public interest disclosure made against other team members and, for those reasons, they voted to dismiss Ms Kelsey because she had made the public interest disclosure and had commenced the proceedings in the Commission. Conjecture is required to accept the choice of inference sought to be drawn by Ms Kelsey.
  1. [400]
    Finally, Ms Kelsey referred[436] to the Primary Decision where reference was made to the evidence of Cr Dalley, Cr Smith, Cr Schwarz and Cr Breene,[437] and to other evidence before the Vice President given by the Councillors,  that they were not part of a faction, political alignment or voting bloc and that the non-respondent councillors were aligned to the extent they disliked Mayor Smith.[438] The submission made by Ms Kelsey was that that evidence was '… incongruous with what appears in the WhatsApps.'[439]
  1. [401]
    I have had regard to those paragraphs of the Primary Decision and to the other evidence referred to by Ms Kelsey. I cannot accept these submissions by Ms Kelsey.
  1. [402]
    What is important is the finding that was made by the Vice President, about that evidence, to the extent it was relevant to her claim that she was dismissed for proscribed reasons. At paragraph [782], the Vice President did find that Ms Kelsey was '… caught in a tussle between two competing forces' and that she was seen (by the Councillors) as favouring the opposition such that she had demonstrated partisanship; and as far as the Councillors were concerned '… her position was untenable.' Therefore the Vice President accepted there were two competing factions on the Council. That finding is not at odds with the WhatsApp messages, at least in respect of the Councillors who used WhatsApp. The finding is not at odds with the other evidence of the Councillors referred to by Ms Kelsey. As further found by the Vice President at paragraph [780], the WhatsApp transcripts '… clearly reflect the depth of feeling' as to the deep seated division between the two factions on the Council. However, as the Vice President went on to find in paragraphs [783]-[784], the WhatsApp messages did not reveal co-ordination, assignment or direction as between the Councillors. In other words, the WhatsApp messages did not reveal that the Councillors voted together, as directed, as a political bloc or as a political faction, to dismiss Ms Kelsey for a proscribed reason.

Conclusion about the contents of the WhatsApp messages

  1. [403]
    The Councillors submitted that:
  • Ms Kelsey's submissions suffered from a fundamental vice, namely that she did not identify what flowed from any of the WhatsApp messages;
  • Ms Kelsey's contention appeared to be that various inferences should be drawn from those messages and that those inferences are averse to the credit of various Councillors in respect of their evidence; and
  • this does not bear on the critical issue and the evidence which was accepted by the Vice President about the critical issue, and the submission proceeds on the fallacy that if some earlier evidence was not accepted, then all later evidence given by the witness would similarly be rejected.[440]
  1. [404]
    There is force in this submission. The central critical issue in the matter was whether or not the Councillors voted to dismiss Ms Kelsey because she made '…the PID' and commenced the Commission proceedings; that is, the Vice President had to assess whether the reasons the Councillors voted to terminate Ms Kelsey's employment was for prohibited reasons.
  1. [405]
    The Vice President gave an overview of the evidence of each of the Councillors and then made a detailed assessment of their evidence as part of his Honour's conclusions that in respect of each Councillor, their conduct in voting to dismiss Ms Kelsey was not for a prohibited reason.
  1. [406]
    Ms Kelsey does not clearly submit why his Honour's conclusion about the WhatsApp communications has resulted in the Vice President erring in respect of his separate assessment, of the separate reasons given by the Councillors, as to why they voted to dismiss her.
  1. [407]
    The Vice President gave detailed reasons, when assessing the evidence given by each of the Councillors, about why they voted to dismiss Ms Kelsey. For the reasons already given and for other reasons given later, those findings were likely to be affected by the Vice President's impressions about the credibility and reliability of the Councillors formed by the Vice President hearing and seeing them give evidence.
  1. [408]
    None of the WhatsApp communications in evidence, including the ones not specifically referred to by Ms Kelsey in this Court, looked at separately or as a whole, support a conclusion that the inferences Ms Kelsey seeks to draw are the only reasonable and definite inferences.
  1. [409]
    The WhatsApp messages and other evidence referred to by Ms Kelsey:
  • support the Vice President's conclusion about the two factions on Council about who supported Mayor Smith;
  • is not incontrovertible evidence of her alignment claim;
  • does not demonstrate that the Vice President's decisions, about what actuated each of the Councillors, are glaringly improbable; and
  • do not give rise to compelling inferences contrary to the Vice President's decisions about what actuated each of the Councillors.
  1. [410]
    In coming to his Honour's conclusions about the WhatsApp messages, for the reasons I have given earlier, his Honour's reasons conformed with the principles in DL. The                     Vice President's reasons about the WhatsApp messages were adequate. The Vice President, in giving reasons about Ms Kelsey's submissions about the WhatsApp messages, was not required to undertake a minute explanation of every step in the reasoning process that led to his Honour's decision about them. 
  1. [411]
    Further, for the reasons given, having regard to the WhatsApp communications that were in evidence, no Fox v Percy errors or Earthline errors are disclosed.

'D.3C Alignment: What the WhatsApp messages did not say expressly, they showed implicitly'

  1. [412]
    In her principal submissions, Ms Kelsey submitted:[441]
  1. 107.Potentially relevant evidence, in the form of records of WhatsApp and Telegram discussions, were deleted by various of the individual respondents. They were therefore beyond the scope of the discovery orders that were initially issued by the Commission. The incomplete records of WhatsApp groups were only provided to Ms Kelsey after they were recovered as a consequence of forensic retrieval techniques used by the CCC. Messages exchanged on the Telegram app were not disclosed. No respondent gave any adequate explanation for the deletion of WhatsApp or Telegram records. Despite being invited to do so, the Vice President failed to even consider making any adverse factual findings or to draw available adverse inferences in respect of the individual respondents' conduct in that regard. Nor, in the context of the alignment case, did the Vice President have regard to the fact that various individual respondents conceded that they joined WhatsApp and Telegram at the Mayor's instigation.
  1. [413]
    In oral submissions,  Ms Kelsey referred to evidence that established:
  • WhatsApp messages for a Group called 'Four' and that Mayor Smith, Cr Dalley, Cr Swenson, Cr Breene and Cr Schwarz were members of that group which started on 12 June 2017 and ended on either 11 December 2017 or in February 2018;
  • WhatsApp messages for a Group called 'Fab 5' and that Mayor Smith, Cr Smith, Cr Schwarz, Cr Swenson, Cr Breene and Cr Dalley were members of that group;
  • Fab 5 being succeeded by 'Fab 7', 'Luke's 7', 'Team Awesome 2018' and 'Fab 7 2.0.';
  • that there were no WhatsApp messages from 'Four' or 'Fab 5' prior to December 2017; and
  • the WhatsApp messages in evidence before the Vice President were not the full extent of the WhatsApp communications between the Councillors, and between them and Mayor Smith.[442]
  1. [414]
    According to Ms Kelsey's written submissions to the Vice President, the relevant Councillors and Mayor Smith deleted their WhatsApp accounts after Ms Kelsey's dismissal and, after the CCC retrieved the WhatsApp material, Cr Smith and Cr Dalley made that material available to Ms Kelsey.[443]
  1. [415]
    Ms Kelsey submitted:

Now, the point is, what did his Honour make of that gap in the evidence? And the answer to that is, we don’t know. How did this gap - how did it - what did it say about the probative value of the WhatsApp messages that were in evidence? What did it say about the credibility of the individual respondents,  remembering of course, that they were - except for Councillor Luton, who wasn’t in the WhatsApps, but they all deleted WhatsApp and the records weren’t available, other than the ones that your Honour has before you today.[444]

  1. [416]
    In the introduction and summary of Ms Kelsey's written submissions to the Vice President, there was a submission made that, in respect of social media messages, there was no hypothesis consistent '…with innocence' which could be accepted by the Commission for the '… premeditated destruction of evidence' by the Councillors who used the WhatsApp program.[445] The Vice President did not expressly consider that (or a similar submission) in the reasons, although his Honour referred to the written submission as made.[446] 
  1. [417]
    The Councillors submitted that each of the Councillors, who used WhatsApp, were cross-examined about their reasons for deleting the WhatsApp messages, those answers were not contradicted by other evidence, and therefore the Vice President must have accepted the evidence given by those Councillors because his Honour drew no adverse inferences against them when his Honour had the benefit of seeing them give their evidence about that issue.[447]  In reply, Ms Kelsey submitted the latter submission of the Councillors '… amounts to the sort of ritual incantation about witness credibility' described '…in Fox v Percy', and further, the fact that the Vice President had the benefit of seeing the Councillors did not excuse his Honour from providing '… at least some reasoning as to how he discounted the fact that various potentially probative records were not before him because they were destroyed by parties to the litigation.'[448] Ms Kelsey did not dispute the Councillors' submission that the relevant Councillors were cross-examined about their reasons for deleting the WhatsApp messages. 
  1. [418]
    I cannot conclude that the absence of express consideration in the Primary Decision, about one of Ms Kelsey's many submissions to the Vice President, namely, what inference, if any, may be drawn about the relevant Councillors' credit from their deletion of the WhatsApp programs, vitiates the Primary Decision.
  1. [419]
    As referred to in paragraph [382] of these reasons, the Vice President gave detailed reasons why he accepted the sworn evidence of each of the Councillors for their reasons in voting to terminate Ms Kelsey's employment. This included reference to their evidence in cross‑examination. In doing so, his Honour's factual findings are likely to have been affected by the Vice President seeing and hearing the Councillors give their evidence. Therefore, restraint should be exercised with respect to interference with the Vice President's findings of fact about the credit of the Councillors; relevantly, those who used WhatsApp. Far from being '… a ritual incantation', the principles about when and why respect must be shown by an appellate court for the relevant advantage of a trial judge is the law. For these reasons, I cannot conclude that the absence of consideration about this one issue in respect of the credit of the Councillors –  particularly when Ms Kelsey's principal argument in her alignment claim was what should be inferred about the Councillors' credit from the content of the WhatsApp messages in evidence – vitiates the Primary Decision.
  1. [420]
    At paragraph 107 of her principal submissions, Ms Kelsey also submitted that Telegram app messages were not disclosed and that the Vice President failed to have regard to the fact the various Councillors joined the two social media platforms at Mayor Smith's invitation. The Councillors submitted that this submission overlooks the fact that no messages were exchanged on the Telegram app prior to the termination of Ms Kelsey's employment and therefore were not relevant, and while they were referred to in their evidence, Ms Kelsey did not seek an order for their production.[449] In her submissions in reply, Ms Kelsey pointed to certain evidence given by Crs Swenson and Pidgeon about joining the Telegram app.[450] However, that evidence does not demonstrate that they probably joined that app prior to Ms Kelsey's dismissal. Ms Kelsey further submitted that even if the Telegram app messages post-dated her dismissal, they could have been probative.[451] That submission does not address the Councillors' uncontradicted submission that Ms Kelsey did not seek an order for their production. No error of fact is disclosed in respect of these issues.
  1. [421]
    At paragraph 108 of her principal submissions, Ms Kelsey again submitted that there was fault in the Vice President's reasoning when his Honour used the absence of Cr Lutton from the WhatsApp groups as evidence he was not affiliated with Mayor Smith. Again, I reject that submission for the reasons I have given earlier.   Ms Kelsey then submits that the Vice President made no reference to Cr Lutton's  membership of the Telegram group,  which he admitted to joining at Mayor Smith's invitation.  I have read the evidence given by Cr Lutton in cross-examination to which Ms Kelsey refers in respect of this latter submission.[452]  Councillor Lutton's evidence was that he joined that group after Ms Kelsey's dismissal and that Mayor Smith subsequently communicated with him, in that group, in respect of a community issue not associated with Ms Kelsey's proceeding. I accept the Councillors' submission[453] that to the extent Cr Lutton may have joined that message group after the termination of Ms Kelsey's employment, it does not reveal anything about his reasons for acting prior to that time.  No error of fact is disclosed in respect of these issues.
  1. [422]
    At paragraph 109 of her principal submissions, Ms Kelsey submitted that the Vice President did not take into account four '…concessions' made by Cr Smith that '… plainly impugned the evidence of various other individual respondents, particularly in respect of the matter of alignment and coordination.' I have read the evidence given by Cr Smith about these four matters. The descriptions given by Ms Kelsey of Cr Smith's evidence mostly mischaracterise the evidence actually given and Ms Kelsey does not explain why this evidence impugns the evidence of other Councillors.
  1. [423]
    At T 10-11, ll 22-28, ARB, page 5846, while Cr Smith stated that there were missing WhatsApp communications between 4 June 2017 and 21 December 2017, he did not concede they were in any way relevant to Ms Kelsey's proceeding.
  1. [424]
    At T 10-18, ll 41-45, ARB, page 5853, Cr Smith did not concede that it was common for Mayor Smith and other Councillors to make direct and specific requests of him (and other Councillors) in respect of how to vote on particular issues. Cr Smith's evidence was that he had been asked to support motions from '…probably every councillor' and agreed he had received requests from Mayor Smith in respect of a vote.
  1. [425]
    In respect of Cr Smith's evidence '… of non-alignment', at 10-62, ll 6-8, ARB, page 5897, after he stated that he shared Mayor Smith's vision for the City of Logan, Cr Smith did agree he had the '…mayor's back.' However, for all the detailed reasons given by the Vice President, including his assessment of the credit of all the Councillors, his Honour rejected Ms Kelsey's alignment claim. It therefore cannot reasonably be concluded that one piece of evidence impugns Cr Smith's sworn evidence or the sworn evidence of the other Councillors.
  1. [426]
    At T 10-89, ll 4-6 and ll 32-33, ARB, page 5924, while Cr Smith agreed Cr Dalley asked him, before the vote, to move the termination motion, his evidence also was that he had no discussions with other councillors about what his vote was going to be. If Cr Dalley asked Cr Smith to move the motion (discussed further below) that, of itself, cannot logically impugn the sworn evidence of the Councillors. As the Councillors submitted,[454] Ms Kelsey does not explain how these matters materially undermine the evidence given by other witnesses in a critical respect and none of these matters go to the critical question of the Councillors' reasons for their vote. For the reasons I have given, I accept this submission.
  1. [427]
    No errors of fact are disclosed.

'D3.D Alignment: The 'debate rules''

  1. [428]
    Councillor Dalley's evidence was that the 'debate rules' were that:
  • if a person spoke in favour of a motion, another person could speak against the motion;
  • if a person spoke against a motion, another person could speak in favour of the motion;
  • if no one spoke in favour of a motion, there could be no debate; and
  • if someone spoke in favour of the motion and no one spoke against it, there could be no debate.[455]
  1. [429]
    In her final written submissions to the Vice President, Ms Kelsey submitted that:
  • the invocation of the rules of debate '… was a very unusual choice which was not regularly utilised by Council;[456] and
  • specifically in respect of Cr Dalley:
  1. –the designation of an aligned Councillor who would move the motion was not a matter which Cr Dalley was likely to leave to chance; she was also responsible for the rules of debate '… which ensured tight control over the procedure at the termination meeting' and that the strategy was handled by Cr Dalley '… in typical efficient and carefully pre-planned style';
  2. –her other evidence to the effect that she did not know how other Councillors would vote was similarly false evidence that should not be accepted;
  3. –Cr Dalley was a highly unsatisfactory witness and she was the central moving force behind '… the unlawful strategy to terminate Ms Kelsey's employment' in that she '… marshalled the numbers, calmed the 'horses', stage managed the ultimate meeting at which the termination decision was made and, in many different ways, was the one who more than anyone ensured the strategy succeeded'; and
  4. –she behaved '…disgracefully, cynically and unlawfully'.[457]
  1. [430]
    In the Primary Decision, the Vice President stated:[458]
  1. [257]
    In the absence of the Mayor, Cr Dalley was the acting Chair of Council. Cr Dalley adopted what was described as the 'rules of debate'.  In short, the 'rules of debate' had the effect that if no one Councillor spoke against a resolution, no one, apart from the mover, would be permitted to speak in favour of it.
  2. [258]
    No Councillor gave an example when such a rule had been previously imposed.  Although the use of straw polls or informal votes was frequent within Counci1, no such process was followed in relation to these resolutions.
  3. [259]
    A motion confirming the Applicant's employment was moved by Cr Raven.  He spoke in support of the motion to confirm the Applicant's employment with the First Respondent.  As no Councillors spoke against the motion and in accordance with the rules of debate, debate ceased.  The motion supporting the Applicant's employment was formally put to the meeting and defeated with five for (Councillors Power, Koranski, McIntosh, Bradley and Raven) and seven against (the Third to Ninth Respondents).
  1. [431]
    The motion to dismiss Ms Kelsey was then moved by Cr Smith and seconded by Cr Swenson. No councillor spoke in favour of the motion and therefore there was no debate.[459]
  1. [432]
    Ms Kelsey submitted to this Court that:
  • she relied on the debate rules imposed by Cr Dalley in respect of the two resolutions relating to her employment, to draw an inference of premeditation on the part of Cr Dalley, which was motivated by unlawful considerations;
  • when the vote to confirm her employment occurred, Cr Raven spoke in support of the motion and despite intending to vote for termination, none of the Councillors spoke against it, the consequence of which was that as a result of the debate rules, there was no further debate and the resolution was defeated with each of the Councillors voting against it;
  • Cr Smith then moved a resolution calling for the termination of her employment, no one spoke in favour of it the consequence of which was that, pursuant to the debate rules, no one was permitted to speak against it, there was no debate and the Councillors voted to dismiss her; and
  • many of the Councillors gave evidence that it was common for councillors to try to lobby others to vote in a particular way more broadly, but no such steps were taken in relation to these particular votes.[460]
  1. [433]
    Ms Kelsey then submitted:[461]
  1. 114.The obvious inference to be drawn from the mechanism by which the vote occurred was that the outcome of the vote would be a fait accompli, and that Cr Dalley knew that this would be the case. That plainly raises a further inference of coordination among the individual respondents, and impugns their credit. The reasons disclose no analysis of this important point. Nor did his Honour have regard to the evidence of Cr Dalley of her having coordinated 'numbers' on the matter of whether Ms Kelsey's interlocutory challenge to the probation process would go to a vote. Her statement in respect of those matters: 'we're politicians. We get numbers ' was an admission; it is not realistic to infer that, having regard to all of the evidence, Cr Dalley instituted the debate rules in doubt of what the outcome would be.
  2. 115.The Vice President accepted that no Councillor gave an example of such rules ever previously being imposed. However, his Honour otherwise did not deal with the rules further, and he failed to show that he had understood Ms Kelsey's submission that the rules demonstrated aforethought among the councillors. Nor did the Vice President explain why the rules could did not have a bearing on the credibility of the individual respondents, whose evidence throughout was that they could not be sure of the outcome of the vote until it took place.
  1. [434]
    The Councillors submitted[462] that Ms Kelsey's submission that the introduction of the debate rules meant that the outcome was a fait accompli, should not be accepted for two reasons. First, Cr Dalley gave evidence that she introduced the rules of debate to maintain order during a controversial decision. In this respect, Cr Dalley's evidence in cross-examination was that: 'Rules of debate are not unusual in a council meeting during a controversial meeting' and that she '…put in place the rules of debate to maintain order in the chamber.'[463] The Councillors' submission was that Cr Dalley's actions were perfectly logical and understandable.
  1. [435]
    Secondly, the Councillors submitted that it was uncontested that all of the councillors received legal advice that they should not discuss their reasons for voting and that they should not talk to any of the other councillors about how they proposed to vote because they were at risk of having their reasoning contaminated by the person. In oral submissions, Ms Kelsey submitted that while the issue of the legal advice may be accepted in respect of hallway discussions between one another,  it was a completely different matter to have a debate in an open session of the Council.[464]
  1. [436]
    In further oral submissions, Ms Kelsey referred to the evidence in cross-examination of Cr Smith that Cr Dalley asked him to move the motion in respect of the termination of her employment which was after '… a meeting with the legal team but certainly before the vote'. Ms Kelsey further submitted that was evidence of coordination by Cr Dalley, that '… she's very cagey about that point', and that while Cr Dalley's evidence gives the impression that it was an organic process, Cr Smith's evidence is contradictory. Ms Kelsey submitted that the Vice President did not resolve that conflict and that: 'We're left to guess how his Honour dealt with that.' [465]
  1. [437]
    Having regard to Ms Kelsey's submissions to this Court about the debate rules, Ms Kelsey is really attacking the Vice President's acceptance of, in particular, the sworn evidence of Cr Dalley, and the sworn evidence of the other six Councillors.
  1. [438]
    The issue of Cr Dalley's credit was clearly an important issue pressed by Ms Kelsey before the Vice President. In paragraphs [423]-[461] of the Primary Decision, the Vice President gave very detailed reasons as to why his Honour accepted Cr Dalley's sworn evidence, not only about her own reasons for voting to terminate Ms Kelsey's employment, but also in respect of some of the events leading to the vote.[466] Again, for the reasons given above about the principles regarding adequacy of reasons, the Vice President, in dealing with the question of Cr Dalley's credit, did not have to resolve every argument or issue raised. Ms Kelsey raised a substantial argument about Cr Dalley's credit and the Vice President assigned reasons for its rejection.
  1. [439]
    The issue of the credit of the other six Councillors were equally important issues pressed by Ms Kelsey before the Vice President. As referred to earlier in these reasons, the Vice President gave detailed reasons why his Honour accepted the sworn evidence of each of the six other Councillors.  For the same reasons given in respect of Cr Dalley immediately above, those reasons are adequate in that the Vice President assigned reasons for the acceptance of their sworn evidence, and in doing so, his Honour did not need to resolve every argument or issue raised attacking their veracity.
  1. [440]
    In terms of alleged errors of fact, I cannot accept that the inferences contended by Ms Kelsey are the sole reasonable and definite inferences open. In respect of the two resolutions before the Council on 7 February 2018 about Ms Kelsey's employment, given the events leading up to that meeting (the most significant of which are summarised in the Primary Decision in paragraphs [3] to [10], [417] and [419] to [420]),[467] it was clear that the Council meeting to consider the two resolutions was going to be controversial. Councillor Dalley was the acting chair of the Council at that time and her evidence was that it was because of that controversy she put the debate rules in place; namely, to maintain order. The debate rules applied to the first resolution (to confirm Ms Kelsey's employment) as much as they did to the second, which was to dismiss her.
  1. [441]
    Even leaving aside Cr Dalley's direct evidence about why she introduced the debate rules, given the undisputed facts which clearly establish that the meeting was going to involve very controversial issues, a reasonable and definite inference is that the debate rules were introduced to maintain order about the vote in respect of those two very controversial matters. It requires conjecture to accept the inferences contended for by Ms Kelsey, namely, that the debate rules were introduced so '… the outcome of the vote would be a fait accompli, and that Cr Dalley knew that this would be the case' and the further inference '… of coordination among the individual respondents.' For these reasons, having regard to the issues raised by Ms Kelsey about the debate rules, she has not pointed to incontrovertible evidence that suggests the decisions of the Vice President, about the credit of Cr Dalley and the other six Councillors, are wrong. For the same reasons, the Vice President's reasons about their credit are not glaringly improbable or contrary to compelling inferences.
  1. [442]
    As to the issue raised about the contradiction between the evidence of Cr Dalley and Cr Smith about moving the termination vote, the Vice President squarely dealt with that issue and, from the reasons given, it is likely his Honour resolved that matter on the basis of him hearing and seeing Cr Dalley give her evidence in cross-examination. In the Primary Decision, the Vice President relevantly found:
  1. [456]
    It was submitted by the Applicant that Cr Dalley denied that she had asked Cr Smith to move the vote to terminate Ms Kelsey's employment.  It is not correct to categorise Cr Dalley's evidence as false.  In cross-examination, Cr Dalley was asked:

MR MURDOCH:

Now, did you ask Councillor Smith to move the vote to terminate Ms Kelsey's employment?

CR DALLEY:

I didn't ask anybody to move that vote.  I asked for a mover from the floor.  I was sitting in the chair at the time.

MR MURDOCH:

So no discussion with Councillor Smith prior to the meeting?

CR DALLEY:

There may have been discussion with Councillor Smith prior to the meeting.  I don't recall asking anybody to move it.  I recall making the statement that somebody would move it, and somebody would need to second, and that related to both motions.  At that point, we were possibly going to have - at the very early stage of the 7th of February, there were possibly going to be three motions on the floor.[468]

  1. [443]
    Again Ms Kelsey has not pointed to incontrovertible evidence that suggests this decision about Cr Dalley's credit is wrong. There is nothing to suggest this decision of the Vice President about Cr Dalley's credit is glaringly improbable or contrary to compelling inferences.
  1. [444]
    For these reasons, I do not accept Ms Kelsey's complaints about the debate rules. No errors of law or fact are disclosed.

'D3.E Alignment: The Hallam email exchange'

  1. [445]
    The CCC wrote to all the councillors on 5 February 2018, two days prior to the vote about Ms Kelsey's continued employment. The correspondence from the CCC was also sent to Mr Greg Hallam, who was the Chief Executive Officer of the Local Government Association of Queensland ('LGAQ'), at the same time it was sent to the councillors.[469]
  1. [446]
    Councillor Dalley then forwarded the CCC correspondence to the Council's lawyers for advice.[470]
  1. [447]
    On that same day, Cr Schwarz emailed Cr Dalley asking her to enquire why the CCC's correspondence was sent to Mr Hallam. Then, on the same day, (5 February 2018) Cr Dalley, by email sent at 7.08 pm, forwarded the CCC correspondence to Mr Hallam.  In that email, Cr Dalley stated:

Hi Greg

Would appreciate your opinion on this so that I can calm down my colleagues

Have spoken to Russell Lutton who said he spoke to you and you have spoken to CCC

Just need a little help to calm the "Horses'.[471]

  1. [448]
    Mr Hallam responded to Cr Dalley's email by return email at 7.53 pm. Mr Hallam's advice included '… to stick with' the wording as advised that day by the Council's counsel '…and you are home free with no comeback from the CCC', '…you can make the decision the majority of councillors want and for the right reasons without legal recrimination', and that '…Mark Jamieson, I and the LGAQ will back you all the way to the gates of hell if need be, No turning back from us.'[472]
  1. [449]
    Councillor Dalley, at 8.25 pm, responded to Mr Hallam stating:

Thanks Greg I feel like I am in the poker game of my life but compared to stuff that has happened to me in my previous life in construction this is a small challenge

And I am a damn good poker player

Thanks for the support[473]

  1. [450]
    Councillor Dalley, at 8.26 pm, then forwarded Mr Hallam's response to only five of the six other Councillors (Cr Swenson, Cr Smith, Cr Pidgeon, Cr Schwarz and Cr Breene, not Cr Lutton).[474]
  1. [451]
    Ms Kelsey makes the following submissions about these emails:
  • the reference to the '…Horses' can only have been to the other Councillors, who were the respondents at first instance, and who were to vote on Ms Kelsey's employment;[475]
  • the emails bore critically on Cr Dalley's evidence, and the other Councillors, at least in relation to her (Ms Kelsey's) alignment claim;[476]
  • the inference open on the emails was that, by Cr Dalley referring to '…calm the "Horses,"' she was '… co ordinating the horses, her knowing how the horses were planning to vote, etcetera';[477] and
  • the Vice President made no reference to these emails in the Primary Decision.[478]
  1. [452]
    In her submissions in reply, Ms Kelsey submitted:
  • the Hallam exchange was an important piece of evidence that should have had a bearing on the Vice President’s assessment, at least, of Cr Dalley’s credibility;
  • it was telling that the ‘…Horses’ that Cr Dalley sought to calm were those same persons who ended up voting against Ms Kelsey and who Cr Dalley repeatedly denied knowing how they would vote; and
  • in other words, the Hallam exchange is, at the very least, probative evidence that, contrary to Cr Dalley’s denials, she knew precisely that the other individual respondents were predisposed to voting against Ms Kelsey.[479]
  1. [453]
    In oral submissions,[480] Ms Kelsey also referred to Cr Dalley's evidence given in cross‑examination about her reference to playing poker, namely:

What’s the poker game you were playing?---I refer often to the game of politics as a game of poker. It is not an unusual phrase for me. I was being a bit colloquial and I was trying to be very brave. There’s a lot of bravado in that statement.

What was the poker game that you were playing?---It was the legal game that was going on. We were playing what appeared to be a legal game, one way or another. And that’s what I was referring to, and I frequently refer – refer to, as I’ve just stated, politics and the decisions we have to make as a game.

But this wasn’t a game?---No, it’s not a game.

Was it?---I was being – as I say, I was being very brave. I was putting up a lot of bravado in this. I didn’t feel like that at all.

You referred to “poker”, I suggest, because you were trying, at this point, to not show your cards. Correct?---Something one does generally as a politician is not show your cards.

What did you have to hide?---I have nothing to hide.

Who were you hiding it from?---I wasn’t hiding it from anybody.

I suggest that at that point in time you knew that you had the numbers to terminate Ms Kelsey?---I did not know I had the numbers, as previously stated. I had been listening to my colleagues around the room, and a number of them were considering abstaining from voting.[481]

  1. [454]
    Ms Kelsey submitted about that evidence:

But more importantly, and again going to error, is, even though it’s not an express admission of a proscribed reason, what does that reference to playing poker and being good, but - good at poker, what does it say about coordination? What does it say about whether there were any clandestine discussions between the individual respondents? What does it say about whether Ms Dalley was bluffing, again to torture the metaphor. What did it say about her denial about knowing how others were going to vote and planning to vote? And what does it say about whether she was behaving in a transparent and honest manner?[482]

  1. [455]
    In further oral submissions in reply, Ms Kelsey referred to Mr Hallam's advice to Cr Dalley about backing her '…all the way to the gates of hell' and other evidence indicating that the Councillors would be indemnified for legal representation by the Council's insurance if they were named as respondents by Ms Kelsey. The submission was that it could be inferred that the Councillors would not admit to wrongdoing because they would lose the support of the LGAQ. It was also submitted that while counsel's advice to the councillors included keeping contemporaneous notes of their reasoning (about the vote), that advice was not followed by the majority of the Councillors, such that the inference may be drawn that if the Councillors did not follow advice in one regard, '… it might be that they wouldn't follow it in others,'[483] namely, to act for lawful reasons.
  1. [456]
    The Councillors submitted that:
  • the most likely inference from the emails was that Cr Dalley was concerned that the effect of the correspondence from Ms Kelsey's (then) lawyers and the CCC would be that the elected councillors would not exercise their statutory duty to vote on the matter;
  • Cr Dalley gave evidence that she did not forward the email to the non-respondent councillors because she did not trust them; and
  • even if the adverse inference can be drawn that Cr Dalley forwarded the email from Mr Hallam (to five of the other Councillors) for the purposes of encouraging them to vote to terminate Ms Kelsey's employment, there is no evidential basis to conclude that was done for a proscribed reason and that such conduct would be entirely consistent with Cr Dalley's evidence that she did not think Ms Kelsey was appropriate, and her own vote to terminate her employment.[484]
  1. [457]
    In oral submissions, the Councillors submitted that:
  • Cr Dalley, who was the acting Mayor at the time, did a very sensible thing by going to the LGAQ and asking for help to explain to people the position;
  • it was '…a long stretch' to say that what Cr Dalley was really doing was saying to Mr Hallam, '…help me so that I can stop these people deciding to vote for Ms Kelsey or against Ms Kelsey or to not do what we’ve secretly planned'; and
  • the Vice President found Cr Dalley to be a witness of truth in relation to her reasons, there is no reason why he did not accept her evidence on this point, there is no reason why he had to deal with it specifically, and it is a subsidiary matter from which a speculative inference was sought to be drawn.[485]
  1. [458]
    I cannot accept Ms Kelsey's submissions.
  1. [459]
    It is relevant to consider the letter from the CCC that prompted Cr Dalley's first email to Mr Hallam. That letter was sent two days before the vote about Ms Kelsey's continued employment, it was signed by Mr A J MacSporran QC, Chairperson of the CCC, and relevantly stated:

I understand the Council plans to hold a Special Council Meeting at 1pm on Wednesday 7 February 2018 to consider whether the Council should make a decision to take action under clause 2.3(b) of the employment agreement, as entered into between the Council and Ms Kelsey and which commenced on 27 June 2017.

I have determined in these circumstances that it is appropriate to write to you all so as to inform the Council and individual Councillor's decision-making on this matter.

You may be aware section 343 of the CC Act provides protection to those, such as the Chief Executive Officer, who disclose information to the CCC for the performance of its functions.

The victimisation of a person because they have helped the CCC in the performance of its functions is an offence against section 212 of the CC Act which relevantly provides that a person must not prejudice or threaten to prejudice the career of any person because that person has helped the CCC in the performance of its functions.

The CCC has a duty to protect people who have helped it to carry out its functions and treats allegations of victimisation against such people as a serious matter.

Pursuant to section 344 of the CC Act, the CCC may make application to the Supreme Court for an injunction on the ground that a person (including the Council or a member of the Council) has engaged, or is proposing to engage, in conduct that constitutes or would constitute an offence, or an attempt to commit an offence, against section 212 of the CC Act.

You would also be aware that protections are available to public interest disclosers, noting a complaint Kelsey v Logan City Council (No. 5) [2024] ICQ 15of corrupt conduct may amount to a public interest disclosure under section 13 of the Public Interest Disclosure Act 2010 (Qld) (PID Act) and that it is an offence pursuant to sections 40 and 41 of the PID Act for reprisal action to be taken against a discloser.

I would strongly recommend any resolutions voted on by Council in relation to this, or any other motion, be carefully considered in light of the above matters and that you each seek independent advice as appropriate.[486]

  1. [460]
    I accept that the reference to '…the Horses' is probably to the other Councillors. However, given the specific observations made by Mr MacSporran QC, about legal action that may be taken by the CCC and about the potential offences that may be committed, the probable inference is that Cr Dalley was seeking Mr Hallam's advice or support given the obvious pressure that the Councillors would have felt, upon receipt of the CCC correspondence, given the forthcoming vote. Mr Hallam's response certainly supports that inference. It requires conjecture to conclude that the only reasonable and definite inferences to draw are that, by Cr Dalley sending the email to Mr Hallam, she was seeking his reassurance when she knew precisely that the other Councillors were going to vote against Ms Kelsey or because Cr Dalley was                          co-ordinating the Councillors to all vote against Ms Kelsey.
  1. [461]
    I accept that Cr Dalley only forwarded Mr Hallam's response to five of the Councillors and did not forward it to the non-respondent councillors. Cr Dalley's reasons for that, given in her evidence in cross-examination, was that she did not trust the non‑respondent councillors because the information would finish up either in Ms Kelsey's hands or the media. When it was put to Cr Dalley that she only sent the email to the select group of Councillors because she wanted to ensure that those councillors knew that if they stuck with counsel's advised wording, they were '… home free with no comeback from the CCC', her response was that until the actual vote, she did not know what the result would be.[487]
  1. [462]
    Given all the related events that had occurred from 10 October 2017 leading up to the scheduled vote on 7 February 2017 (some of which I have summarised above when dealing with the debate rules) and given the evidence that led to the Vice President's finding (at paragraph [780] of the Primary Decision) about deep seated divisions between the factions, Cr Dalley's reasons for the limited distribution of Mr Hallam's advice are explicable.
  1. [463]
    For the above reasons, to only draw the inferences pressed by Ms Kelsey, that the emails bore critically on Cr Dalley's evidence and the evidence of the other Councillors about her alignment claim, is to engage in conjecture. Again, for the reasons I have given earlier in respect of Ms Kelsey's submissions about her alignment claim, there is a significant difference between there being different factions on the Council and the specific alignment, or case theory, Ms Kelsey says was behind her dismissal.
  1. [464]
    Further, as the Councillors submitted, even if it was accepted that Cr Dalley's reason for seeking advice from Mr Hallam was to ensure a majority vote to dismiss Ms Kelsey, it then requires further conjecture to settle on that being for the purpose of retaliating against Ms Kelsey because she made the PID or commenced the QIRC proceedings.
  1. [465]
    In addition, the inferences Ms Kelsey submits should have been drawn about losing the backing of the LGAQ and not following counsel's advice, about making contemporaneous notes of their reasoning, are speculative. It requires conjecture to conclude that the reasonable and definite inference to be drawn is that the Councillors kept hidden, from the LGAQ, their alleged unlawful design for fear of losing that organisation's support or for fear of losing their insurance cover. The equally plausible inference is that they were seeking the support of the LGAQ for their own protection if they were personally sued, arising out of them performing their duty as elected councillors, in making a decision about Ms Kelsey. It also requires speculation to accept that a reasonable and definite inference to be drawn, from the fact that the majority of the Councillors did not take contemporaneous notes as advised, is that they similarly ignored other legal advice about acting lawfully in making their decision about Ms Kelsey. The equally plausible inferences are that they simply forgot to take notes or just ignored the advice about the notes.
  1. [466]
    For the reasons given earlier, the Vice President, in giving adequate reasons, did not need to resolve every argument and issue that arose in the trial about Cr Dalley's credit. The issues about these emails, in the scheme of all of the issues raised before the Vice President as set out in the Primary Decision about Cr Dalley's credit, were minor. The same can be said in respect of the issues raised about Cr Dalley's poker comments. The fact these minor issues were not mentioned does not mean the Vice President's reasons were inadequate.
  1. [467]
    It requires conjecture to conclude that unlawful coordination (between the Councillors) and a lack of transparency and a lack of honesty (between the Councillors) are the reasonable and definite inferences to be drawn from Cr Dalley's comments to the Chief Executive Officer of the LGAQ. A more plausible inference to draw is that Cr Dalley sought advice from Mr Hallam, and that she made the comments she made, due to the extraordinary and significant legal circumstances in which she (and the other Councillors) were involved at that time.

Conclusion about sub-heading D.3 of Ms Kelsey's principal submissions

  1. [468]
    None of the complaints made under this sub-heading, about alleged errors of law or alleged errors of fact, are made out. No errors of law or errors of fact are disclosed.
  1. [469]
    To the extent Ms Kelsey seeks to rely on proposed grounds of appeal that are tied to these complaints, Ms Kelsey should not be allowed to amend her application to appeal on such grounds.

The fourth sub-heading of Part D: 'D.4 Other evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'

'D.4A Assessment of the fairness, reasonableness and rationality of the individual respondents' motivations'

  1. [470]
    There are seven categories of complaint covered under this sub-heading.
  1. [471]
    Again it was not always clear if what was being alleged were errors of law, because of alleged inadequate reasons, or alleged errors of fact. To the extent the complaints were referable to alleged inadequate reasons, they seem to be about alleged factual errors. Ms Kelsey's submission at paragraph 121 of her principal submissions goes some way to confirming this.  Ms Kelsey submitted that in paragraphs 30 to 35 of her principal submissions, she had already dealt with '…two aspects of the Vice President's failure to test whether there were proper bases for the various concerns that the individual respondents said motivated their decision to terminate' her employment and that what followed (namely, the matters which I deal with immediately below), were '…additional examples.' I deal with Ms Kelsey's submissions about paragraphs 30 to 35 later under the heading of 'The allegations that the Vice President committed the same error in approach as the trial judge in TechnologyOne'.
  1. [472]
    Under this fourth sub-heading, Ms Kelsey directly attacks the findings of fact by the Vice President about five of the seven Councillors (Crs Dalley, Breene, Lutton, Swenson and Pidgeon, not Crs Smith and Schwarz). As previously stated, in the Primary Decision, the Vice President summarised the evidence of each Councillor and, in doing so, referred to their sworn reasons for voting to dismiss Ms Kelsey. The Vice President then conducted a separate assessment of the evidence of each of the Councillors in coming to a determination about what motivated them to vote to dismiss Ms Kelsey.
  1. [473]
    At paragraph [382] I gave my reasons why I concluded that Vice President's assessment of the Councillors' evidence was likely to have been affected by his Honour's impressions about the credibility and reliability of them formed by him hearing and seeing them given evidence. However, in support of the specific reasons I give below about these seven categories of complaint, there are two other matters that are relevant to my assessment and determination of them. 
  1. [474]
    First, the Vice President, in determining what motivated each of the Councillors to vote the way each of them did, was expected to weigh his impressions as to their demeanour against the probabilities and to examine whether the disputed evidence was consistent with incontrovertible facts, facts not in dispute and other relevant evidence, including contemporaneous materials and objectively established facts.[488] In fact, in addition to the reasons given below, to the extent Ms Kelsey alleges the Vice President's favourable conclusions about the motivating reasons of Crs Dalley, Breene, Lutton, Swenson and Pidgeon are wrong, when regard is had to the Primary Decision where the Vice President gave reasons about his overall assessment of the evidence of each of the Councillors, his Honour, where relevant, weighed their disputed evidence with established facts.[489]
  1. [475]
    Secondly, in Earthline,[490] Kirby J relevantly stated:[491]
  1. [90]
    The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
  1. [476]
    In the present case, the trial before the Vice President was relatively long with numerous exhibits, multiple issues and detailed oral and written submissions. In addition, the decision of the Full Court of the Federal Court in Wong v National Australia Bank Ltd[492] is apposite in these circumstances. In that case, the Full Court stated:
  1. 109.There is a particular need for caution here where the finding which is challenged concerns the state of mind of a witness. That is because it has long been accepted that an appellate court should only interfere with a finding of this nature in “exceptional circumstances”. See Nocton v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932 Viscount Haldane LC (at 957, also 945 and 949); Clark Boyce v Mouat [1994] 1 AC 428 at 436-7 (PC); Barclay, Heydon J (at [141]).
  2. 110.Ms  Wong’s arguments proceeded on an assumption that Fox v Percy and the preceding cases erected three alternative bases upon which factual findings based on the demeanour of a witness may be set aside. It was contended that it would be sufficient to show that the primary judge “palpably misused his advantage”, irrespective of whether the impugned findings were glaringly improbable or contrary to compelling inferences. If it were necessary to resolve that contention we would be minded to reject it for the same reasons expressed by the New South Wales Court of Appeal in Sica v Brophy [2020] NSWCA 181 (at [23] to [25]). In that case, based on the analysis of the authorities by McHugh J in Fox v Percy, McCallum JA, with whom Basten and Payne JJA agreed, explained at [24]:

... the expression ‘palpably misused his or her advantage’ means no more than that the ‘misuse’ of the advantage enjoyed by the trial judge may be demonstrated (is ‘palpable’) by reason of the existence of incontrovertible facts or uncontested testimony demonstrating error in the judge’s conclusion or where the decision was glaringly improbable or contrary to compelling inferences. ...

  1. [477]
    For the reasons I give below:
  • Ms Kelsey does not point to any matter by which it can be concluded that the Vice President misused the advantage his Honour enjoyed; and
  • Ms Kelsey has not pointed to any exceptional circumstances which justify appellate intervention given that her challenges are to the findings of the states of mind of Crs Dalley, Breene, Lutton, Swenson and Pidgeon.

'D.4B Cr Dalley's purported reasons for dismissing Ms Kelsey'

The Vice President's reasons

  1. [478]
    Councillor Dalley was cross-examined by Ms Kelsey for nearly two full days over 11 and 12 February 2019.
  1. [479]
    The Vice President dealt with Cr Dalley's evidence in paragraphs [350]-[461].
  1. [480]
    At paragraph [352], the Vice President set out Cr Dalley's sworn reasons for voting to dismiss Ms Kelsey (taken from Cr Dalley's affidavit sworn on 18 April 2018, para. 307, ARB, pages 3468-3469), namely:
  1. a.Ms Kelsey attempted to change standard, longstanding practices of Council in an effort to exert excessive control over Council and its operations;
  2. b.Ms Kelsey demonstrated disregard for the development of functional working relationships with Councillors;
  3. c.Circumstances indicated to me that Ms Kelsey was lying, or not being fully truthful, to Councillors on more than one occasion;
  4. d.Ms Kelsey made decisions demonstrating that she lacked comprehension of the way Queensland local governments function;
  5. e.Ms Kelsey failed to discharge her duties appropriately and in doing so, restricted Councillors' ability to perform our roles adequately;
  6. f.Ms Kelsey continuously made important decisions without first consulting Council;
  7. g.Ms Kelsey publicly undermined my professional ability; and
  8. h.Ms Kelsey had a miscomprehension of the limits and requirements of her role.
  1. [481]
    In paragraphs [350]-[422], the Vice President summarised the evidence of Cr Dalley.
  1. [482]
    In paragraphs [423]-[461], the Vice President, under the heading of 'Assessment of the evidence of Cr Dalley' gave specific reasons for his favourable assessment of Cr Dalley's evidence. In doing so, the Vice President highlighted certain key features of Cr Dalley's evidence, by reference to particular claims made by Ms Kelsey,  which supported his Honour's reasoning for his conclusion that Cr Dalley did not make her decision to terminate Ms Kelsey's employment for a prohibited reason.
  1. [483]
    The first key feature of Cr Dalley's evidence concerned Ms Kelsey's submission that Cr Dalley's real reasons for her vote were disclosed in her comments in a councillors' meeting on 13 October 2017 immediately after Ms Kelsey lodged the PID. In paragraphs [425]-[449], the Vice President gave reasons, by reference to the transcript of the meeting on 13 October 2017, Cr Dalley's evidence in chief and her evidence in cross-examination about that meeting, and to the relevant WhatsApp communications, for his Honour's rejection of Ms Kelsey's submission that Cr Dalley was outraged that the PID was lodged against Mayor Smith and, as a result, decided that Ms Kelsey's relationship with the Council was over.
  1. [484]
    The second key feature of Cr Dalley's evidence was about Ms Kelsey's direction to her (on 18 December 2017, when she was Acting Mayor) that she (Cr Dalley) not contact Ms Kirby Orr (Mayor Smith's Chief of Staff and, therefore, Cr Dalley's Chief of Staff as Acting Mayor) after Ms Orr returned to Australia a few days earlier. In paragraphs [450]-[451], the Vice President accepted that the way the direction was communicated gave Cr Dalley the impression that Ms Kelsey did not respect Cr Dalley's role as Acting Mayor. Further, the Vice President found that despite Cr Dalley's cross‑examination about this issue, the contemporaneous text messages demonstrate that Cr Dalley was incensed by the disrespect implicit in that direction.
  1. [485]
    The third key feature of Cr Dalley's evidence concerned the Hunter Report. In paragraphs [453]-[454], the Vice President rejected Ms Kelsey's submission that Cr Dalley failed to provide feedback to Ms Kelsey upon its receipt. This was for reasons that included the agreement between the Council and Ms Kelsey that the report not be provided to Ms Kelsey, and that as soon as she was authorised to do so, Cr Dalley provided the report to Ms Kelsey.
  1. [486]
    Next, in paragraphs [455]-[458], the Vice President gave reasons for rejecting Ms Kelsey's submission that Cr Dalley gave plainly false evidence that she had not discussed how other Councillors might vote. The evidence relied upon by the Vice President included Cr Dalley's evidence in cross-examination on this point, including the observation that it was never put to Cr Dalley that her evidence about that issue was false.
  1. [487]
    Finally, in paragraph [459], despite Cr Dalley's recognition of the roles two other employees played in the issue about the ARGs, the Vice President rejected the contention that Ms Kelsey's role in that issue was not a contributing factor to the opinions Cr Dalley expressed about Ms Kelsey (discussed further below).
  1. [488]
    The Vice President concluded:
  1. [460]
    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.
  1. [461]
    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.

Ms Kelsey's general complaint about the Vice President's decision concerning Cr Dalley's reasons

  1. [489]
    From her principal submissions, Ms Kelsey's general submission about the Vice President's conclusion about the evidence of Cr Dalley is:
  1. 122.The Vice President's acceptance that Cr Dalley's vote was not motivated by unlawful reasons ought also be overturned in circumstances where, having put forward reasons as part of her affidavit evidence, she subsequently abandoned some of those matters. Apart from reflecting adversely on her credibility, her evidence is incongruous with the Vice President's apparent acceptance that those abandoned reasons nevertheless actuated Cr Dalley's vote.
  1. [490]
    Ms Kelsey then referred to six aspects of Cr Dalley's evidence, and the Vice President's conclusions about them, in support of her general submission that Cr Dalley abandoned some of her reasons for her vote. I will deal with each one in turn. For the reasons that follow, none of the six aspects of Cr Dalley's evidence disclose any error of fact in the Vice President's finding that Cr Dalley's reasons to vote to dismiss Ms Kelsey were genuine.

The Relay for Life

  1. [491]
    Cr Dalley expressly referred to the Relay for Life in paragraphs 88-97 of her affidavit sworn on 18 April 2018 (ARB, pages 3443-3444). The Vice President dealt with Cr Dalley's evidence about the Relay for Life in paragraphs [372]-[378] of the Primary Decision:

Relay for Life

  1. [372]
    Shortly after the event, Cr Dalley was informed that Ms Kelsey had attended the Relay for Life as part of a team including Councillors Power, Koranski and Mcintosh, and further that Cr Power and Ms Kelsey had attended in matching costume.
  1. [373]
    This was of concern to Cr Dalley because Cr Darren Power and Mayor Smith have had an acrimonious relationship for a number of years.  The degree of acrimony is well known by Councillors, staff and the broader Logan community, due to Cr Power's constant political grandstanding.
  1. [374]
    Of particular concern for Cr Dalley was the fact that in the weeks leading up to this event, Cr Power had been continuing his public demands that the Mayor stand down.
  1. [375]
    In Cr Dalley's view, Ms Kelsey's role requires that she conduct herself in an apolitical fashion at all times.  Any perception to the contrary will only cause distrust and division within the Council, due to it being a political environment.
  1. [376]
    Cr Dalley considered Ms Kelsey's decision to publicly partner with Cr Power at this event created a perception that she was siding or otherwise aligning herself with Cr Power, given:
  1. i.the event was not being held in Cr Power's Division (nor was it held in Cr Koranski's or Mcintosh's Division);
  2. ii.it was unusual for Cr Power to be seen anywhere west of the City, as his electorate is located in the east;
  3. iii.Ms Kelsey turned up in joint costume with Cr Power; and
  4. iv.the Mayor was also in attendance at this event, making this differentiation in alignment even starker.
  1. [377]
    As Ms Kelsey and Mayor Smith are required to work closely together for the Council as a whole to succeed, Cr Dalley was concerned that this public display with Cr Power would likely cause tension or difficulties in that relationship, given Cr Power is a long term protagonist of the Mayor.
  1. [378]
    Cr Dalley considered that Ms Kelsey's actions were the result of either severe ignorance, political naivety; or a deliberate and intentional act of favouritism.  In either case, she considered Ms Kelsey's conduct to be completely unacceptable, because to properly discharge her duties, Ms Kelsey needs not only to be apolitical, but also be seen to be apolitical.[493]
  1. [492]
    In her principal and reply written submissions,[494] Ms Kelsey referred to Cr Dalley's evidence in cross-examination about this issue:

Yes. And noting, as you’ve said several times, that you weren’t across all of the details of Ms Kelsey’s attendance at the Relay For Life, can the  Commission assume that because you weren’t across all the details of her attendance, that whilst you held a view that that could have caused an issue with community perception, that you didn’t take her attendance at that event of itself into account in deciding to terminate her employment?[495]---It was a series of occurrences, not one reason.

You didn’t take the Relay For Life into account in your decision to terminate the employment. Is that the case?---As I said, it’s a series of events, not one.

You didn’t take the Relay For Life into account in deciding to terminate the employment. Is that the case?---That’s the case, if you want me to say that. Yep, that’s the case.

Thank you?---There were a series of other events that concerned me a lot more.

And the Relay For Life was not a consideration. That’s your evidence?---I have to say yes. I’ve just said so to you.[496]

  1. [493]
    The Councillors submitted[497] that when regard was had to Cr Dalley's sworn reasons for her vote in paragraph 307 of her affidavit sworn on 18 April 2018 (set out above), the Relay for Life was not one of her reasons, such that she did not abandon, and made no concession, about any reason she gave.
  1. [494]
    In her oral submissions,[498] Ms Kelsey referred to paragraphs [392] and [461] of the Primary Decision:

The Hunter Report

  1. [392]
    As part of the Hunter review Cr Dalley told Ms Hunter that she did not believe that Ms Kelsey understood the difference in the operation of local government in Queensland as compared to Victoria and South Australia, and that this was causing difficulties with how Ms Kelsey was interacting with Councillors; that Ms Kelsey needed to focus on remaining apolitical, given the damage to the Council Chamber already caused by her decision to go in joint costume with Cr Power to the Relay for Life event in October (which decision she considered to have resulted from political naivety, stupidity or arrogance); that Ms Kelsey needed to focus on working closely with the Mayor, and other Councillors, in particular to repair the damage in confidence caused by the events surrounding the Relay for Life events; and Ms Kelsey needed to demonstrate greater performance in the areas of finance management and strategy, as to date, Ms Kelsey had not yet displayed any skills in these areas.

…

  1. [461]
    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.
  1. [495]
    Ms Kelsey submitted[499] by reference to paragraphs [392] and [461] of the Primary Decision, the finding there and the way it is framed, it was relatively clear that the Vice-President was taking it for granted that the Relay for Life matter actuated Cr Dalley’s reasons for voting against Ms Kelsey. 
  1. [496]
    Ms Kelsey then referred[500] to paragraphs 91, 92 and 96 of Cr Dalley's affidavit sworn on 18 April 2018, respectively, her evidence:
  • criticising Ms Kelsey’s attendance at the event because her position required her to ‘… conduct herself in an apolitical fashion at all times, as any perception to the contrary will only cause distrust and division within the Council, due to it being a political environment’;
  • that as Ms Kelsey and Mayor Smith were required to work closely together for the Council as a whole to succeed, she was concerned '…that this public display with Cr Power would likely cause tension or difficulties in that relationship, given Cr Power is a long term protagonist of the Mayor'; and
  • that if Ms Kelsey could not maintain a reasonable awareness of the political landscape as between the Councillors and not allow herself to be perceived as aligning with any one person or group, '…then she could not remain in the position as CEO, as the CEO is the lynchpin that keeps the Council together during times when the political landscape is rocky or divided.’
  1. [497]
    Ms Kelsey then submitted:[501]
  • Cr Dalley's reasons in para. 307 of her affidavit, for the most part, were framed vaguely and could only sensibly be understood by reference to what came earlier in her affidavit;
  • in particular, her stated reasons that Ms Kelsey demonstrated disregard for the development of functional working relationships with Councillors is plainly referrable to the concerns that Cr Dalley referred to in respect to the Relay for Life event as is her related statement that '…Ms Kelsey had a misconception[502] of the limits and requirements of her role’;
  • in cross-examination, Cr Dalley conceded the Relay for Life event was not a consideration in terminating Ms Kelsey's employment;
  • the effect of that evidence is obvious and is inconsistent with the position now put in respect of Cr Dalley, namely, that she first defended the fact that the Relay for Life matter had a bearing on her decision making '…before grudgingly walking away from that'; and
  • if it was submitted that the Relay for Life event was not a matter that Cr Dalley considered, that begs the question of why it was referred to in her affidavit.
  1. [498]
    I cannot accept Ms Kelsey's submissions.
  1. [499]
    First, on a proper consideration of  paragraph [392], the Vice President was merely reciting Cr Dalley's evidence about what she said to Ms Hunter. The Vice President was not finding that, as a fact, that '…the Relay for Life matter actuated Councillor Dalley’s reasons for voting against Ms Kelsey.'
  1. [500]
    Secondly, while I accept Ms Kelsey's submission that Cr Dalley's views of Ms Kelsey not being apolitical, because of the way she participated in the Relay for Life event, are directly referable to her sworn reason that '…Ms Kelsey had a miscomprehension of the limits and requirements of her role’, I am unable to form the view that Cr Dalley, in cross-examination, abandoned any sworn reason she gave for voting to dismiss Ms Kelsey. This is for two reasons.
  1. [501]
    One, the extract of the cross-examination of Cr Dalley referred to by Ms Kelsey was not the only evidence she gave in cross-examination about the Relay for Life event. The cross-examination started on T 11-49, l 21 (ARB, page 5982). Councillor Dalley admitted that she did not attend the event. Then in the lead up to the extract of the transcript cited by Ms Kelsey, Cr Dalley's evidence was:

Yes?---At a council – at a Cancer – a Cancer Council fundraiser - - -

Yes?--- - - - in Councillor Schwarz’s division.

Yes?---Also attended, I believe, by another – a few other councillors - - -

Yes?--- - - - and the mayor. Now, the issue I have with that is quite clear in my affidavit. It is very clear to anybody that has been in Logan for more than 10 minutes – and I’m exaggerating, I apologise – for more than three months, that there is a very, very well known, extreme animosity between Councillor Power and the mayor. Councillor Power has declared himself as the leader of the opposition on at least one occasion in my presence.

And just pausing there, you don’t cavil with that description, do you?---Sorry?

You don’t disagree with that description, that he’s the opposition?---I do disagree – I do disagree with that description. I’m saying he described himself as the leader of the opposition. And I - - -

Right. So you wouldn’t use that term. Is that the case?---I would not use the term to describe Councillor Power. No, I don’t – don’t think he is the leader of the opposition.

Keep going. Yes?---It creates a perception that Ms Kelsey was leaning towards Councillor Power - - -

Right?--- - - - as in more favourite – more favourable – sorry, my mouth’s getting a bit tongue-tied. More favourable towards Councillor Power than any other councillor. That’s what it appeared to me. I – I wasn’t there, as you say. I don’t know what actually went on. I can’t give you any eye witness testimony.

Yes?---I know what I read.

Yes?---And I know what is possibly perceived in public.

Yes?---It is quite – and that sort of perception can be quite damaging. A CEO must be seen to be totally apolitical. Must not just be apolitical, but must be seen to be apolitical.

And you – and you accept, though, that a similar perception in respect of being not apolitical could have arisen from Ms Kelsey’s - - -?---Yes.

- - - attendance at the pie night?---Yes. I – I wasn’t aware Ms Kelsey was at the pie night. Had I been, I may have had that in my affidavit. I was not even sure she was – did not know she was there. So I have no - - -

And - - -?---Nowhere to go with that.[503]

  1. [502]
    On my reading of the entire cross-examination, it is clear that Cr Dalley did not abandon her evidence about Ms Kelsey not remaining apolitical.
  1. [503]
    Two, when regard is had to the first paragraph of the transcript cited by Ms Kelsey, referred to above (at paragraph [492] of these reasons) and which I have emphasised, it is clear that the subsequent concession made by Cr Dalley was directly in response to a precise part of the question about Ms Kelsey's physical attendance at the Relay for Life event, not Cr Dalley's formed opinion about community perception of Ms Kelsey not being apolitical.

The USA Delegation

  1. [504]
    In her sworn evidence, Cr Dalley's evidence concerning the USA delegation was in paragraphs 217-224 of her affidavit sworn on 18 April 2018 (ARB, pages 3458-2459). In summary, Cr Dalley's evidence was that:
  • a number of Councillors proposed that Ms Jane Frawley attend;
  • Ms Kelsey's response was that Directors do not go on business trips;
  • she (Cr Dalley) responded by citing a Director who went on a trip the previous year; and
  • Ms Kelsey's further response was that she did not have a record of that and Ms Kelsey refused to accept her comment as valid.
  1. [505]
    Councillor Dalley's evidence (at paragraph 224 of her affidavit) was that she considered the whole incident to be concerning as it '… further demonstrated to me Ms Kelsey's overall unwillingness to reasonably respect or listen to the views of Councillors, where those views differed from her own.'
  1. [506]
    In the Primary Decision, the Vice President stated:

USA Delegation

  1. [405]
    Cr Dalley considered the debate surrounding which Director would be a part of the USA delegation was a further demonstration of Ms Kelsey's unwillingness to reasonably respect or listen to the views of the Councillors, where those views differed from her own.[504]
  1. [507]
    Ms Kelsey referred[505] to the following evidence given by Cr Dalley in cross‑examination:

So we’ve had quite a bit of to and fro on that with the delegation. My view is Ricardo is best placed.

?---Yes.

Then she makes a comment that:

On balance, it’s best if the director of innovation and city transformation didn’t go. The mayor has indicated his preference is for a director. I understand there has been some preliminary discussions with Dave Hanson. There is a little bit of a challenge in that Dave doesn’t have a current passport. I understand that’ll make – he will make that happen. Short of that, I’m happy not to delegate and, in fact, be the delegate on behalf of the organisation.

So where do we find Ms Kelsey saying that directors don’t go on trips? He’s  discussing the possibility of Mr Hanson going?---I can only tell you what I was recalling. I didn’t have the benefit of a transcript. I remember what I recalled.

So you withdraw the criticism of Ms Kelsey you make in those paragraphs, do you?---Well, given that we have a transcript that says she doesn’t say it, I have to do – I have to withdraw it. I have no option.[506]

  1. [508]
    The Councillors submitted[507] that this issue was not part of Cr Dalley's evidence for acting and that they were events she recalled in her affidavit, but were not the reasons that motivated her to act.
  1. [509]
    One of Cr Dalley's reasons for her vote was that '…Ms Kelsey demonstrated disregard for the development of functional working relationships with Councillors.'[508] The above transcript cited by Ms Kelsey is not evidence of Cr Dalley withdrawing that issue as being a reason she voted to dismiss Ms Kelsey. In fact, the opposite is the case. The evidence in cross-examination cited by Ms Kelsey was in respect of Cr Dalley being questioned about a transcript taken from a recording of the meeting in which the USA delegation discussion took place. The subsequent part of the                 cross-examination of Cr Dalley, not referred to by Ms Kelsey, was:

I suggest that you didn’t take into account any comment that Ms Kelsey had made in this meeting in deciding to terminate her employment, did you?---I can only go by what I said in the affidavit, what I remembered at the time. And if it is not in the transcript, then obviously it didn’t happen, and maybe my memory is playing tricks on me, but that’s how I remembered it at the time.

You didn’t take into account Ms Kelsey’s comments in this meeting against her in deciding to terminate her employment, did you?---It was part of my decision-making because it’s what I remembered at the time.

Well, I suggest that based upon this transcript, any criticism of Ms Kelsey in respect of her behaviour in that meeting on your part would have been irrational?---It was what I remembered at the time. I can only keep repeating that. This is what I remembered at the time. I can’t say I had notes about this, because I didn’t, but this is what I remembered at the time.

Now, I suggest that what you’ve said in paragraph 224 is simply a manufactured reason on your part to criticise Ms Kelsey?---It’s not a manufactured reason. It’s what I remembered at the time. I was basing on what I remembered at the time.  Again, I did not have the benefit of a transcript of the meeting. I was unaware the meeting was being recorded illegally.[509]

The meeting on 5 December 2017

  1. [510]
    Ms Kelsey submitted:
  1. 125.Similarly, despite the weight she gave to this issue in her affidavit, Cr Dalley could not recall salient facts about the meeting where Ms Kelsey allegedly undermined her professional ability. She had misrepresented the discussion Ms Kelsey had with her about the conduct of the meeting, but in any event Cr Dalley ultimately conceded that this was a very small issue.
  1. [511]
    The Councillors submitted[510] that a fair reading of the relevant passage in the cross‑examination revealed that Cr Dalley could not recall Ms Kelsey's version of events for the meeting, which does not mean that Cr Dalley could not recall the meeting, and it was apparent from the conclusion of the questioning that Cr Dalley maintained that it was a matter which offended her.    
  1. [512]
    I have read the transcript of this cross-examination.[511] It does not reveal a concession by Cr Dalley that her evidence about what Ms Kelsey said was a  misrepresentation. Councillor Dalley maintained that, while it was '… a very small issue', from what Cr Dalley recalled about the meeting, she found the way Ms Kelsey spoke to her to be offensive.[512] 

Acceptable Request Guidelines

  1. [513]
    Councillor Dalley's sworn evidence was that at a Treasury Committee meeting on or around 14 September 2017, changes to the ARGs were further discussed, Ms Kelsey again assured councillors that only one change was to be made so as to comply with legislative changes, and when asked if legal advice had been received, Ms Kelsey answered 'No' and she assured all councillors that the changes were necessary and appropriate and that she had undertaken '…this legislative review herself.'[513] Councillor Dalley's further evidence was that Mayor Smith subsequently informed her that staff had discovered that legal advice in regards to the ARGs had been received on 8 September 2017 and, when later asked about this in a Portfolio Cabinet meeting, Ms Kelsey stated that her staff (Mr Strachan and Mr van Wyk) had requested the legal advice and did not tell her they were doing so.[514]
  1. [514]
    When being cross-examined about this, Cr Dalley, after expressing a concern that staff may have been uncomfortable speaking up and embarrassing '…their CEO' in a committee meeting, she described the '…whole thing' with the ARGs to be '… a complete shemozzle.'[515]
  1. [515]
    The Vice President found:[516]

Acceptable Request Guidelines - August to November 2018

  1. [398]
    Ms Kelsey informed Councillors that the Mayoral Directions Register be removed.  This Register exists to ensure the Mayor is acting appropriately and not making unacceptable requests to staff and Councillors.  When Ms Kelsey was asked if legal advice had been obtained, she responded with a firm "no".
  2. [399]
    During the meeting of 14 September 2017, Ms Kelsey again assured Councillors that the only change to the ARGs was to remove the Mayoral Directions Register, and that this was necessary to comply with changes to the legislation.
  3. [400]
    Ms Kelsey assured Councillors that the changes were necessary and appropriate, and that she had undertaken this legislative review herself.  Based on Ms Kelsey's assurances, Cr Dalley proposed that the changes be accepted by the Committee, and they were later passed on to Council for formal ratification.
  4. [401]
    Cr Dalley believed that Ms Kelsey had presided over a "shemozzle".  It is entirely reasonable and understandable that Cr Dalley would have those concerns.

Discovery of legal advice

  1. [402]
    Mayor Smith informed Cr Dalley that staff had received legal advice on 8 September 2017 from Holding Redlich regarding the ARGs.
  2. [403]
    Ms Kelsey is said to have advised the Councillors, "My staff requested the legal advice and did not advise me that they were doing so".
  3. [404]
    Concern was expressed that the legal advice was sought without Ms Kelsey's knowledge and then hidden from both her and the Councillors' views.  In doing so, it was suggested that a divide was being created between Councillors and staff.

…

  1. [459]
    Cr Dalley's evidence was that she could not recall whether she was aware of Mr Strachan and Mr van Wyk's role at the time in which she made the termination decision.  Whilst she recognised that Mr Strachan and Mr van Wyk bore responsibility for the changes in name it does not necessarily follow that at 7 February 2018 her concerns about the ARGs were not a contributing factor to the opinions she expressed.
  1. [516]
    Ms Kelsey submitted that:[517]
  • no reasoning is disclosed for the Vice President's conclusion in paragraph [401]; and
  • the reasons do not have any regard to the careful summary of the facts relating to the ARGs extracted in Ms Kelsey's closing submission that explain her limited involvement in those matters and '… which expose reliance on concerns about the matter by individual councillors as a contrivance.'
  1. [517]
    I cannot accept these submissions by Ms Kelsey.
  1. [518]
    First, in paragraphs [181]-[197] of the Primary Decision, the Vice President summarised the evidence about the ARGs. Relevantly, the Vice President stated:[518]
  1. [190]
    Upon his return to work on 19 September 2017, Mayor Smith requested legal advice from Gadens Solicitors in respect of the ARGs.  The Mayor also sought advice from the Applicant as to whether legal advice had been received.  At first, the Applicant advised that she was awaiting "final advice".  However, after a further enquiry from Mayor Smith, the Applicant advised that there was no existing legal advice.
  2. [191]
    On 28 September 2017, Gadens provided written advice about the ARGs.  Importantly, the advice from Gadens was to the effect that s 12(4) of the LG Act, which provides that mayoral directions contrary to Council policy do not need to be followed, should be understood as being contrary to a resolution of Council.  In this case, the ARGs which had been adopted, extended the scope of directions which did not need to be complied with to those which were inconsistent with the broad policy position.  This was a diminution of the Mayor's authority and contrary to the LG Act.
  3. [192]
    At a subsequent meeting with the Applicant, the Second Respondent, Mr Strachan, Ms Cowan and Cr Schwarz, the Applicant repeatedly told Cr Schwarz that the changes to the ARGs had been formed through the Applicant's interpretation of the relevant legislation.
  4. [193]
    In late November 2017, the Mayor requested that his staff start preparing a rescission motion for ARGs because of the Gadens' advice.  During that process, Ms Cowan found the Holding Redlich advice.
  5. [194]
    On 27 November 2017, a "Councillor only" meeting was convened where Mayor Smith informed the meeting of the fact that Council had previously received legal advice which expressed the opinion that the ARGs which had been adopted were inconsistent with the LG Act.  The existence of this advice created some significant disquiet amongst the Councillors.
  6. [195]
    This was specifically because a direct question about whether legal advice had been obtained was asked of the CEO for which she had indicated that it had not.  It was determined at the meeting of Councillors that the Mayor should write to the Applicant seeking an explanation for what had transpired.
  7. [196]
    Shortly after the meeting of all Councillors concluded, but before the Second Respondent had issued the correspondence to the Applicant seeking an explanation, the Applicant sent an email to Mr Strachan from her mobile phone requesting that he please provide advice about the ARGs because she thought it might come up in her probation review.
  8. [197]
    On 28 November 2017, the Mayor issued correspondence to the Applicant seeking certain answers in respect of what had transpired with the ARGs.  The Applicant's answer to that request was to forward a memorandum prepared by Mr Strachan addressing those issues to the Mayor.  Ms Kelsey did not draft her own response or explain her own actions but rather chose only to forward Mr Strachan's response.
  1. [519]
    These reasons, when taken with Cr Dalley's evidence as recounted by the Vice President, clearly explain the Vice President's conclusions in paragraphs [401] and [459]. The ARGs were an issue in the proceedings and the Vice President dealt with the issue and assigned reasons for his conclusion about them. The Vice President was not required to resolve every dispute raised about them.
  1. [520]
    Secondly, I have read Ms Kelsey's closing trial submissions about the ARGs. The principal point made by Ms Kelsey was that she was entirely blameless because Mr Strachan and Mr van Wyk made no mention, either to her or in the Treasury Committee meeting at which they were present, that they had earlier received the September 2017 legal advice. The other point was that subsequent to those events, but before the termination vote, the councillors were informed of those facts (by a briefing note from Mr Strachan) the consequence of which was, it was submitted, that the Councillors' reasons for relying on the ARG issue for their vote was  '…contrived.'[519]
  1. [521]
    However, the plain facts were that Ms Kelsey was the chief executive officer of the Council, who was responsible for her staff and was responsible for the information provided to Councillors. The subsequent clarification about the two employees' silence did not change those plain facts. The Vice President obviously recognised those issues by his reference to Cr Dalley's evidence about those two employees in paragraph [459] of the Primary Decision.
  1. [522]
    Thirdly, and directly related to the second reason above, Cr Dalley's evidence about the ARGs goes directly to one of her sworn reasons for voting, namely, 'Ms Kelsey failed to discharge her duties appropriately and in doing so, restricted Councillors' ability to perform our roles adequately.' Again, the Vice President obviously recognised that opinion by Cr Dalley of Ms Kelsey in paragraph [459] of the Primary Decision.

The rejection of Ms Kelsey's submission that Cr Dalley had been outraged by the lodgement of the PID

  1. [523]
    The Vice President relevantly stated:
  1. [439]
    Immediately after the Applicant lodged the PID on 13 October 2017 an informal meeting was held.  With the exception of Cr Smith who was on leave, all Councillors attended.  The meeting was secretly recorded.  The discussion at that meeting centred on the correspondence that had been received from MinterEllison.
  1. [440]
    The Applicant makes reference to a number of references in the transcript which it is submitted reveals that Cr Dalley had lost trust in Ms Kelsey.  Cr Dalley's evidence needs to be read in context.  By the meeting on 13 October, Cr Dalley had lost confidence in what was happening at the time - "I've lost trust completely".  It was accepted by Cr Dalley that she said, "I tell you now, I will not speak about those things with the CEO from this point on, ever."
  1. [441]
    Cr Dalley's evidence was that she had not lost complete confidence in Ms Kelsey at that stage, but she was concerned that anything she might say in confidence could end up in the media.
  1. [442]
    For Cr Dalley, the whole probation conversation had ended up in something of a "nightmare".  It was suggested to Cr Dalley that the "nightmare" was the lodging of the PID by Ms Kelsey.  In reply, Cr Dalley said:

No.  Because the - we couldn't - we seemed to be heading down a path - we'd had a number of CEOs.  We seemed to have been heading down a path where we might have another problem with another CEO.  That was a concern for me.  A concern for me in relation to the community and the whole of council.  That was the nightmare.  And I was really concerned that anything I might have said to Ms Kelsey at the time - because, yes, I'd lost a bit of trust - that might come back to me in - in some form or other and maybe on the front page of the local paper.  I was concerned.

  1. [443]
    I do not accept the submission of the Applicant that Cr Dalley was outraged that a PID was lodged against Mayor Smith and, as a result, decided that Ms Kelsey's relationship with the First Respondent was over.
  1. [444]
    The Applicant challenged Cr Dalley in relation to the following exchange between Cr Schwarz and Cr Dalley at the meeting on 13 October:

CR SCHWARZ:

'You know - you may not want to even answer this question - it is probably inappropriate for me to ask - how can we possibly move forward, under the circumstances that have just occurred, in a safe and secure environment?  How can we do that in our position?'

MR SPIRO:

'That's not a legal question.  That's for you to decide''.

CR DALLEY:

'That's for individuals.  I've made my decision'.

  1. [445]
    The Applicant's submission is that Cr Dalley's explanation of her evidence "was incoherent and not credible".  The Applicant contended that the statement, "I've made my decision" reflected a decision Cr Dalley had made that Ms Kelsey would need to be removed from the organisation because she had "dared to make a PID concerning the Mayor".  I disagree.
  1. [446]
    The evidence of Cr Dalley was that she made the remark, "I've made my decision" was a decision that she "... would be protecting herself".  Her decision was influenced by Ms Kelsey's apparent relationship with other Councillors.  Cr Dalley was of the view that she should be able to talk to a CEO about anything, including other Councillors.[520] 
  1. [524]
    Ms Kelsey submitted:[521]
  • at paragraph [443], the Vice President rejected her submission that Cr Dalley had been outraged by the lodgement of the PID and effectively decided that her relationship with Ms Kelsey was over, however, the basis for the rejection of that submission is not disclosed in the reasons;
  • at paragraph [440], the Vice President referred to a statement by Cr Dalley that she had lost trust completely in Ms Kelsey and, at paragraphs [441]-[442], referred to her subsequent oral evidence that this loss of trust only extended to a concern that Ms Kelsey would pass on confidential information received from Cr Dalley to the media, however, no attempt was made by the Vice President '…to reconcile that competing evidence';
  • an inference might be drawn that the Vice President accepted Cr Dalley' s later oral evidence because the trust comment followed concerns expressed by Cr Schwarz about the dissemination of confidential matters but '…the reasons are silent on that point';
  • it is not clear how the acceptance of Cr Dalley's evidence on this issue could more broadly advance her credibility; and
  • any limited inference open to be drawn in Cr Dalley's favour would be unsafe in circumstances where, in a later meeting between Councillors, Cr Dalley said 'I don't trust her' in a context that was plainly unqualified.[522]
  1. [525]
    The Councillors submitted[523] that Ms Kelsey's submissions misunderstand the evidence.
  1. [526]
    Ms Kelsey's submissions do misconstrue the Vice President's reasoning. This is for three reasons.
  1. [527]
    First, paragraphs [439]-[446] deal with certain comments made by Cr Dalley in the councillor meeting held on 13 October 2017. This meeting was held after the Council received correspondence from Ms Kelsey's former lawyers. By virtue of comments made by Cr Dalley in that meeting, Ms Kelsey submitted to the Vice President:
  1. 4.258Despite Councillor Dalley's attempts to deflect questions in relation to her real reasons for termination of Ms Kelsey's employment, they are plainly and unequivocally established by comments, in particular by comments she made at the surreptitiously recorded meeting on 13 October 2017, immediately after Ms Kelsey lodged her PID.[524]
  1. [528]
    Secondly, paragraphs [439]-[442] need to be read together because they deal with one discrete argument made by Ms Kelsey about one of Cr Dalley's comments in that meeting, namely, Cr Dalley's specific comment about her losing trust completely. Ms Kelsey's written submission to the Vice President was that part of Cr Dalley's explanation in cross-examination about her complete loss of trust (T 11-81, ll 20-30, ARB, page 6014) was '…plainly false'.[525]  However, it is abundantly clear that, by the Vice President's reference to Cr Dalley's subsequent evidence in cross-examination in paragraph [442] (which was a reference to T 11-82, l 41 to T 11-83, l 3, ARB, pages 6015-6016), it was that further evidence of Cr Dalley in cross-examination upon which his Honour rejected Ms Kelsey's claim that Cr Dalley's evidence about completely losing trust was plainly false.    
  1. [529]
    Thirdly, paragraphs [443]-[446] need to be read together because they deal with a separate discrete argument made by Ms Kelsey, about another comment made by Cr Dalley in the 13 October 2017 meeting, namely: 'I've made my decision'.
  1. [530]
    Councillor Dalley was asked about this comment in cross-examination (at T 11-86, l 32 to T 11-87, l 27, ARB, pages 6019-6020):

Can we go over to page 96?---I see that. Yes.

I’m sorry?---I see that.

Yes. You see page 96?---Yes.

And if we then go to the end of the page, three from the bottom, Councillor Schwarz makes a statement, again, after a comment from Mr Spiro:

You know – and you may not want to even answer this question – it is probably inappropriate for me to ask – how can we possibly move forward, under the circumstances that have just occurred, in a safe and secure environment? How can we do that in our positions?

Mr Spiro:

That’s not a legal question. That’s for you to decide.

You say:

That’s for individuals. I’ve made my decision.[526]

Correct?---Yes.

Yes. You’d made your decision that you couldn’t move forward with Ms Kelsey, hadn’t you?---In a safe, secure environment.

Yes. And you’d made that - - -?---I would be protecting myself.

You’d made that decision because she’d lodged the PID?---No. As I explained, at least three times before, this is more about Ms Kelsey’s apparent relationship with other councillors. And to be in a safe, secure environment, one needs to be able to talk to the CEO about anything, including other councillors.

Well, you see, you obviously felt that you could talk to Ms Kelsey in a safe and secure environment on the 10th of October, because you had the probation conversation report meeting with her, didn’t you?---That was an obligatory meeting that I had to attend.

Yes. Yes. But you – by the time we get to the 13th, three days later, somehow you don’t feel safe to talk to her; correct?---I wasn’t feeling particularly comfortable in the probation conv – I wasn’t feeling particularly comfortable, period, around about that time. The whole environment was toxic.

  1. [531]
    Ms Kelsey's relevant written submission to the Vice President (ARB, page 4663, about the statement 'I've made my decision') was:
  1. 4.282Councillor Dalley attempted to explain this in her evidence at Transcript PN 11-87 at line 5, however her explanation was incoherent and not credible. The statement plainly reflected a decision she had made that Ms Kelsey would need to be removed from the organisation because she had dared to make a PID concerning the Mayor.
  1. [532]
    The evidence given by Cr Dalley in cross-examination extracted above is the evidence to which the Vice President refers in paragraph [446]. It is clear that the reason the Vice President rejected Ms Kelsey's written submission about this comment is the evidence of Cr Dalley referred to in paragraph [446].
  1. [533]
    Ms Kelsey's submissions to this Court about these issues conflate the discrete submissions made by Ms Kelsey, about the discrete comments made by Cr Dalley, about which the Vice President, separately and methodically addressed and adequately answered.
  1. [534]
    No error of adequacy of reasoning or error of fact is disclosed.

The 'I'm breathing fire' comment

  1. [535]
    Ms Kelsey's submissions about this matter misconstrue the Vice President's reasons in the same way as the topic immediately addressed above.
  2. [536]
    Ms Kelsey submitted:[527]
  • at [428]-[431] the Vice President accepts that '…other incriminating statements made by Cr Dalley' at the councillors' meeting on 13 October 2017 were explicable by a concern held by Cr Dalley as to the way in which the PID was made, rather than the PID itself;
  • the parts of the transcripts where Cr Dalley referred to '… breathing fire', follows an exchange where Crs Lutton and Swenson were discussing limits ostensibly placed by Ms Kelsey on communications as between staff and councillors;
  • however, the 'I'm breathing fire' reference follows immediately after a more general question by Cr Pidgeon of '… what do you think we are supposed to do' and that '… can only have been a reference to what actions the Council ought take in respect of Ms Kelsey in a much more general sense (as the issue relating to communications was referenced fleetingly in the course of much more broader discussions relating to Ms Kelsey's PID complaint)';
  • Cr Dalley's evidence was that she was 'breathing fire because of the way it [being the PID] had been done';
  • the conclusion that the statement was contextually explicable by reference to the Vice President's conclusion that it reflected '…the concerns the various Councillors held in relation to Ms Kelsey's conduct in restricting Council officers from making direct contact with the Councillors' (which conflicted with Cr Dalley's own evidence as outlined above) is flawed'; and
  • the Vice President had not at that time made any finding as to whether those concerns were genuine and there is no reasoning that explains how a factual finding relating to the context in which the breathing fire statement was made, which is directly inconsistent with the evidence given by Cr Dalley, can reflect positively on her credibility.
  1. [537]
    Ms Kelsey's submissions are wrong for the reasons given by the Councillors.
  1. [538]
    The Councillors submitted:[528]
  • at paragraph [428], the Vice President identified a submission made by Ms Kelsey about Cr Dalley’s evidence (namely, that Cr Dalley's statement that 'I'm breathing fire' was an attempt by her to falsely explain that she was breathing fire because of the way the PID had been made as opposed to the fact of it being made);
  • at paragraph [429], his Honour answered that submission by identifying her evidence regarding why she had used those words, namely, it was the way the PID had been delivered; and
  • then at paragraph [430], the Vice President identified that Cr Dalley’s breathing fire comments were made in the context of other councillors complaining about Ms Kelsey’s conduct in an unrelated way, and:
  • fairly understood, the Vice President was not suggesting that the 'I’m breathing fire' comments were made in respect of the restriction of staff passing information directly to the councillors;
  • rather, his Honour was identifying that some councillors were complaining about concerns about the way in which Ms Kelsey had acted in various different ways rather than the mere making of the PID; and
  • his Honour was not making any findings that the breathing fire comment was related to restrictions on information being given to councillors.
  1. [539]
    On the plain reading of paragraphs [428]-[431] of the Primary Decision, the Councillors' submissions are compelling. As I understand Ms Kelsey's submission, she submits that the Vice President concluded that Cr Dalley's statement ('I'm breathing fire') was contextually explicable by reference to the concern the various Councillors held in relation to Ms Kelsey's conduct in restricting Council officers from making direct contact with the Councillors. On the words used, the Vice President was not making that finding of fact. Ms Kelsey's submissions misconstrue the Vice President's reasons. It is obvious that the Vice President, by the reasons given in paragraph [429], accepted Cr Dalley's evidence that the 'I'm breathing fire' comment was about the way the PID had been delivered. Contrary to paragraph 129 of Ms Kelsey's principal submissions, the Vice President did not then pivot, without adequate explanation, to accept that the 'I'm breathing fire' comment related to a discussion about restrictions being placed on staff passing information directly to councillors.

Conclusion

  1. [540]
    The complaints made about the Vice President's conclusions about Cr Dalley's evidence were made generally.  The complaints do not allege how the Vice President's acceptance, of all of the eight reasons sworn by Cr Dalley for her vote, were wrong in fact. No relevant incontrovertible evidence was identified and the complaints do not disclose that the precise conclusions by the Vice President about Cr Dalley were glaringly improbable.
  1. [541]
    In respect of the particular complaints made by Ms Kelsey about his Honour's findings about Cr Dalley, the Vice President's reasons adequately explain his conclusions.

'D.4C Cr Breene's purported reasons for dismissing Ms Kelsey'

  1. [542]
    In paragraphs [693]-[722], the Vice President summarised the evidence of Cr Breene.
  1. [543]
    In paragraphs [723]-[736], the Vice President then undertook an assessment of Cr Breene's evidence and in that regard his Honour:
  • at paragraph [723], referred to the fact that from the time of Ms Kelsey's interview for the position of chief executive officer of the Council, she (Cr Breene) considered Ms Kelsey to be unsuitable for the role;
  • at paragraph [724], set out the seven reasons sworn by Cr Breene about why she voted against Ms Kelsey's continued employment, namely:
  • she was not genuinely interested in the issues facing her Division;
  • her inability to remain apolitical, and her decision to align herself with five Councillors who oppose Mayor Smith, creating division and dysfunction within the Council;
  • concerns regarding her attempts to control what information Councillors received;
  • her 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;
  • her underwhelming 100 Day Report, which failed to articulate any significant achievements or strategy for advancing the Council's key objectives;
  • her performance during budgetary meetings; and
  • her management of the changes to the Acceptable Request Guidelines;
  • at paragraph [725], found that, by express footnoted reference to paragraphs 4.338‑4.368 of Ms Kelsey's closing written submissions, the attempt by Ms Kelsey to impugn Cr Breene's credit on the basis that she was '…seeking to ingratiate herself' with Mayor Smith and the other Councillors, was not established on the evidence;
  • at paragraphs [726]-[729]:
  1. –referred to Cr Breene's evidence that Ms Kelsey appeared to operate under a fine line '… between CEO and politician' and referred to Cr Breene's evidence about the Relay for Life as an example of such conduct;
  2. –then, by obvious reference to Ms Kelsey's closing written submission (at paragraph 4.353, ARB, page 4675)  referred to Cr Breene's  concession in cross‑examination that she did not take into account Ms Kelsey's attendance at the Relay for Life event in deciding to terminate her employment; and
  3. –referred to Cr Breene's evidence that her fundamental concern was Ms Kelsey's inability to remain apolitical and Ms Kelsey's decision to align herself with the five councillors who openly opposed Mayor Smith, creating division and dysfunction within the Council, and that her concern was not the mere fact of Ms Kelsey getting dressed up and participating in a charity event; and
  • at paragraphs [730]-[736]:
  1. –referred to Cr Breene's evidence that she never voted for or against a motion based on an instruction or request from another of the Councillors or Mayor Smith, and in the straw poll about whether Ms Kelsey should be employed, she did not support Ms Kelsey's appointment;
  2. –referred to Ms Kelsey's closing written submissions (at paragraph 4.354, ARB, pages 4675-4676)[529] that Cr Breene had abandoned her evidence that the seating arrangements were a reason for her vote, but correctly noted that her affidavit evidence did not specifically include seating arrangements as a reason;
  3. –stated that the evidence was that Cr Breene did not deny being part of the social media group or that Mayor Smith had asked her to join the group, and referred to her evidence that those in that group were working in the best interests of the City of Logan;
  4. –referred to Cr Breene's evidence that Ms Kelsey had been divisive and destructive of the former cohesive relationship enjoyed between councillors and Council staff; and
  5. –referred to Cr Breene's clear evidence that in respect of the 100 day report, many of the things identified in the report '…we were already doing' and that she was '…expecting to find out more of what she'd (Ms Kelsey) been doing.'  
  1. [544]
    Ms Kelsey complained about the Vice President's reasons for accepting Cr Breene's evidence on a number of grounds.
  1. [545]
    First, Ms Kelsey submitted[530] that the Vice President's approach to Cr Breene's evidence disclosed a paucity of reasoning in respect of an acceptance of her evidence and reasons for her vote in favour of Ms Kelsey's termination. I have, in the paragraphs above,  by reference to certain claims made by Ms Kelsey about Cr Breene's evidence and by reference to Cr Breene's evidence, summarised the Vice President's assessment of Cr Breene's evidence in rejecting those claims. Those reasons adequately disclose why the Vice President accepted Cr Breene's reasons, for voting to dismiss Ms Kelsey, as genuine.
  1. [546]
    In fact, of the seven issues given by Cr Breene that resulted in her voting to dismiss Ms Kelsey (set out in paragraph [724] of the Primary Decision):
  • the Vice President, in his Honour's summary of Cr Breene's evidence, expressly referred to four of those issues (namely, Disregard for Committee Structure Proposal at paragraphs [709]-[711], the 100 Day report at paragraphs [700]-[701], performance in budget meeting at paragraph [713] and ARGs at paragraphs [707]-[708]);  and
  • the Vice President then dealt with two of them in his Honour's assessment of Cr Breene's evidence, in the context of assessing her evidence against the closing written submissions made by Ms Kelsey, namely:
  1. –the Relay for Life (Ms Kelsey's closing written submissions at paragraphs 4.353 and 4.371-4.373, ARB, pages 4675 and 4678-4679, and paragraphs [726]-[728] of the Primary Decision); and
  2. –the 100 day report (Ms Kelsey's closing written submissions at paragraphs 4.377-4.378, ARB, page 4680, and paragraph [735] of the Primary Decision).
  1. [547]
    Having regard to Ms Kelsey's written closing submissions, the most significant argument she made against Cr Breene, in an attempt to impugn her credit, was the allegation, as described by the Vice President, that she sought to ingratiate herself with Mayor Smith and other Councillors.[531] Ms Kelsey raised a substantial argument about that issue, the Vice President referred to it, rejected it and assigned reasons for its rejection at paragraphs [725] and [733]. Further, on this issue, in paragraph [725], the Vice President referred to the undisputed evidence that, in the straw poll taken before Ms Kelsey was appointed, Cr Breene did not support Ms Kelsey's appointment.
  1. [548]
    The Vice President gave adequate reasons with the other significant attacks made on Cr Breene's evidence by Ms Kelsey, namely, Ms Kelsey's inability to remain apolitical (which dealt with the Relay for Life issue as referred to by Ms Kelsey in paragraph 4.353 of her closing written submissions, ARB, page 4675) and Cr Breene's evidence about the 100 day report (as referred to by Ms Kelsey in paragraphs 4.377-4.378 of her closing written submissions, ARB, page 4680). His Honour referred to those arguments made by Ms Kelsey, rejected them and assigned reasons for their rejection.
  1. [549]
    The Vice President, in giving adequate reasons, did not need to deal with every argument and issue raised by Ms Kelsey about Cr Breene's evidence. The parties can understand how the Vice President came to his decision about Cr Breene.
  1. [550]
    Secondly, Ms Kelsey submitted[532] that '…[c]lose to the only aspect of the reasons that deals with the submissions and summaries of evidence put by Ms Kelsey as to Ms Breene' was that in paragraph [725]. However, that submission was not subsequently developed to the point where it was contended that the Vice President erred in fact, in any particular respect, which vitiated the Primary Decision. In any event, it is wrong for the reasons I have given above.
  1. [551]
    Thirdly, Ms Kelsey submitted[533] that although the Vice President (in paragraph [727]) quoted Cr Breene's abandonment of her evidence that Ms Kelsey's attendance at the Relay for Life was one of the matters that actuated her vote, his Honour '….misses the significance of that concession.' I cannot accept that submission. As the Councillors submitted,[534] the transcript of the cross-examination set out in paragraph [727] of the Primary Decision, on the words used, does not involve a concession.  Councillor Breene answered 'No' to the question that she did not seriously take into account Ms Kelsey's attendance at the Relay for Life event in deciding to dismiss her. That involved Cr Breene disagreeing with the negative proposition that was put. Those are the plain words.
  1. [552]
    Further, to the extent it is contended some other meaning is to be given to Cr Breene's answer of 'No', then, as sometimes happens when questions involving negative propositions are asked in cross-examination, deference should be given to the Vice President who saw and heard how Cr Breene answered the question. In addition, when regard is had to the next paragraphs ([728]-[730]) of the Primary Decision, it is very clear that the Vice President understood the precise nature of Cr Breene’s complaints about Ms Kelsey's conduct in attending the Relay for Life event. In her written submissions (paragraph 4.353, ARB, page 4675), Ms Kelsey submitted that Cr Breene's evidence about Ms Kelsey's inability to remain apolitical was false or at least exaggerated. The Vice President clearly rejected that submission.
  1. [553]
    Fourthly, Ms Kelsey submitted[535] that the Vice President did not have regard to Cr Breene's inability, in cross-examination, to recall whether or not Ms Kelsey's 100 day report had formed a relevant consideration. However, as the Councillors submit,[536] in re-examination, Cr Breene confirmed that the 100 day report was one of her concerns.[537] That was the evidence before the Vice President such that Cr Breene's earlier evidence in cross-examination is not incontrovertible evidence about her reliance on that issue. For the same reason, the Vice President's failure to refer to that evidence of Cr Breene in cross-examination does not prove that the Vice President's conclusion, about accepting the veracity of Cr Breene's evidence about the 100 day report, was glaringly improbable.
  1. [554]
    Fifthly, Ms Kelsey submitted[538] that the Vice President did not have regard to '…the concessions made by Cr Breene in respect of the extent to which she originally said that she objected to the extent to which Ms Kelsey sought to control the flow of information as between councillors and their staff.' I have read the transcript to which Ms Kelsey refers at T 13-98, ll 1-10, ARB, page 6278. Cr Breene accepted that it would have been fair and reasonable to have raised, with Ms Kelsey, that she (Cr Breene) felt as though she was not getting all the information because it was being filtered by Ms Kelsey before she sent the information to councillors. However, there was no concession made by Cr Breene that she did not rely on that issue (controlling the flow of information) as a reason in voting to dismiss Ms Kelsey. It is unremarkable that the Vice President did not refer to that evidence.
  1. [555]
    These complaints do not disclose any error of law or of fact in respect of the Vice President's acceptance of Cr Breene's evidence.

'D.4D Cr Lutton's purported reasons for dismissing Ms Kelsey'

  1. [556]
    At paragraph [584], his Honour set out Cr Lutton's sworn reasons for voting to terminate Ms Kelsey's employment:
  1. a.Ms Kelsey's conduct and performance in relation to the Acceptable Request Guidelines;
  2. b.Ms Kelsey's perceived personal alignment with certain Councillors, which I was concerned was driving division amongst the Councillors as a group;
  3. c.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;
  4. d.Ms Kelsey disregarding my request for legal advice; and instead sending me an email about accessing counselling;
  5. e.Ms Kelsey's disregard for the views of Councillors, which was observed by me through:
  1. i.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;
  2. ii.her failure to implement the Committee Structure as reviewed and determined by the Councillors;
  1. f.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;
  2. g.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;
  3. h.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;
  4. i.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
  5. j.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.[539]
  1. [557]
    In paragraphs [586] to [616] of the Primary Decision, the Vice President summarised the evidence of Cr Lutton. Then, in paragraphs [617]-[622], under the  heading of 'Assessment of evidence', the Vice President accepted Cr Lutton's sworn evidence as genuine. In fact, in some of the paragraphs of the Primary Decision dealing with the summary of Cr Lutton's evidence, the Vice President gave reasons, by reference to Cr Lutton's evidence in cross-examination and to other evidence, why his Honour accepted particular reasons given by Cr Lutton for voting to dismiss Ms Kelsey.
  1. [558]
    In the part of the Primary Decision where the Vice President summarised Cr Lutton's evidence:
  • at paragraph [586], the Vice President gave reasons why it could not be accepted that Cr Lutton was affiliated, or politically aligned, with Mayor Smith as alleged, namely by reference to the undisputed evidence that:
  1. –Cr Lutton had no involvement in the WhatsApp communications;
  2. –Cr Lutton actively campaigned against Mayor Smith; and
  3. –Cr Lutton resigned his position as a chair of a committee because of a disagreement with Mayor Smith;
  • at paragraphs [587]-[588], the Vice President referred to Cr Lutton's evidence that he did not believe Ms Kelsey was suitable and why her further engagement would only cause dysfunction and division, and then, to put Cr Lutton's reasoning (about that view) into context, referred to part of Cr Lutton's evidence in cross-examination;
  • at paragraphs [589]-[591], the Vice President referred to Cr Lutton's evidence about why Ms Kelsey's involvement with the ARGs showed poor leadership on the part of Ms Kelsey and eroded his trust of her;
  • at paragraphs [592]-[594], the Vice President referred to (and accepted as being genuine) Cr Lutton's view that Ms Kelsey's direction to staff about how to address councillors was a concern to him, which included reference to the undisputed evidence that he raised the issue directly with Ms Kelsey (as corroborated by her);
  • at paragraphs [595]-[601], by reference to part of Cr Lutton's evidence in cross‑examination, his Honour explained why he found that Cr Lutton's evidence, that Ms Kelsey's participation in the Relay for Life led him to believe that she was not acting in an apolitical manner, was a concern that he (Cr Lutton) genuinely held;
  • at paragraphs [602]-[604], the Vice President referred to Cr Lutton's evidence about asking Ms Kelsey if they (the councillors) were entitled to legal advice under the Council's insurance policy in light of the CCC warrants served on councillors; and by reference to Ms Kelsey's response (which only referred the councillors to the Council's counselling service through its Employee Assistance Provider) and then to Cr Lutton's own written response to Ms Kelsey, clearly accepted the veracity of Cr Lutton's evidence of his disappointment in Ms Kelsey's actions in that matter;
  • at paragraphs [605]-[607], the Vice President referred to Cr Lutton's evidence about Ms Kelsey's proposal about changing seating arrangements at committee meetings and that she was imposing her will on councillors;
  • at paragraphs [608]-[609], the Vice President referred to Cr Lutton's evidence about Ms Kelsey's non-elaborative response to his question to her about her allocating an office to a consultant solicitor;
  • at paragraphs [610]-[611], the Vice President referred to Cr Lutton's evidence that Ms Kelsey's draft report to rename and realign committee structures did not reflect an earlier agreement, but that, nevertheless, the structure in the draft report was rolled out;
  • at paragraph [612], the Vice President referred to Cr Lutton's evidence about his views of Ms Kelsey's performance and delivery in budget meetings in January 2018, namely, that she did not meet his expectations as she failed to demonstrate knowledge or skills about budgetary and financial matters;
  • at paragraphs [613]-[614], the Vice President referred to Cr Lutton's evidence about his belief that Ms Kelsey facilitated the service of CCC warrants, so as to cause maximum personal and political embarrassment on the Councillors being served; and
  • at paragraphs [615]-[616], the Vice President referred to Cr Lutton's evidence about his belief that Ms Kelsey's conduct showed an unwillingness to accept the different nature of the roles of a chief executive officer and of councillors in the Queensland local government system compared to those in Victoria and South Australia.
  1. [559]
    Under the heading of 'Assessment of evidence' the Vice President:
  • at paragraphs [617]-[618]:
  1. –referred to Ms Kelsey's argument that Cr Lutton's reasons could not have been genuinely held by him because, as late as November 2017, he did not have significant concerns about Ms Kelsey's performance, such that his assertions about his reasons had a strong sense of artificiality and invention; and
  2. –then gave reasons for rejecting that submission, namely, that specific proposition was never put to Cr Lutton in cross-examination and Cr Lutton's concerns were clearly articulated by him and maintained by him in cross-examination;
  • at paragraphs [619]-[620]:
  1. –gave reasons (as given earlier in these reasons) in rejecting Ms Kelsey's claims that Cr Lutton was motivated to dismiss her because he was aligned with Mayor Smith; and
  2. –referred to the undisputed evidence that, before he cast his vote, Cr Lutton was provided with:
  • advice in regard to dealing with the PID;
  • the correspondence of MinterEllison (Ms Kelsey's former solicitors) and the CCC; and
  • legal advice from the solicitors and counsel for the Council,

and further stated that he could not accept Cr Lutton would ignore both the correspondence and the legal advice and then vote to terminate Ms Kelsey’s employment for a proscribed reason; and

  • at paragraph [621], rejected the submission that Cr Lutton held animosity towards Ms Kelsey for reason of the evidence that Cr Lutton was open and forthright with her and, if he did not agree with her on an issue, he told her so.
  1. [560]
    Ms Kelsey refers[540] to three aspects of the evidence in respect of which she asserts that the broad acceptance of Cr Lutton's credibility (by the Vice President) cannot stand '… in circumstances where the Vice President did not scrutinise his evidence by reference to the summary of evidence and submissions in Ms Kelsey's outline of closing submissions' because the evidence '… showed Cr Lutton backtracking significantly in respect of the matters that he said actuated his decision to vote against Ms Kelsey.'
  1. [561]
    First, Ms Kelsey referred[541] to Cr Lutton's evidence in cross-examination that Ms Kelsey was not intransigent about her position regarding committee tables, which was contrary to his earlier affidavit evidence. However, as the Councillors submitted,[542] having regard to all the evidence given by Cr Lutton in cross‑examination about that issue (T 7-28, ll 1-22, ARB, page 5581):
  • Cr Lutton was being asked about a budget meeting whereas his evidence in chief was about changes to 'Committee Seating' in committee meetings (paragraphs 176-191, ARB, pages 2861-2862); and
  • the particular question put was that, from what Cr Lutton observed in the budget meeting, he should have formed a view that Ms Kelsey was open to considering the views of others on the basis of what he had observed (to which he agreed), however, it was not then suggested to Cr Lutton that he did not hold the view Ms Kelsey had been intransigent, which was one of the reasons why he voted to terminate her employment.
  1. [562]
    In fact, Cr Lutton's actual concerns in his evidence in chief (paragraph 191, ARB, page 2862) were that, in respect of this issue, Ms Kelsey showed:
  • a disregard for how Council had historically functioned;
  • an ignorance of the operational needs of Council;
  • an unwillingness to consider the opinions of others; and
  • her imposing her will on councillors.
  1. [563]
    The Councillors' submissions correctly reflect Cr Lutton's evidence in cross‑examination. Councillor Lutton's evidence in cross-examination cannot objectively be seen to be a significant backtrack to all of his evidence in chief about the concerns he developed about Ms Kelsey from his observations of her conduct in respect of changes to committee seating.
  1. [564]
    Secondly, Ms Kelsey made reference[543] to Cr Lutton's evidence in chief (ARB, page 2864), namely:

First CLC Meeting for 2018

  1. 209.The first Civic Leadership Committee (CLC) for 2018. was scheduled for 22 January 2018.
  2. 210.However, without consultation with Councillors, Ms Kelsey sought to change this meeting to a meeting with the CCC. Ms Kelsey later advised that a number of Councillors (although not identified) had requested that she arrange for the CCC to meet with the Council to have a general discussion about the CCC, its roles and functions.
  3. 211.I considered Ms Kelsey's attempts, without consultation, to elevate the importance of a general meeting with the CCC above that of a meeting of the CLC, displayed an indifference to the importance of this meeting to the Councillors, as we needed to use this meeting to make plans and consider our budget planning for the coming year.
  4. 212.I raised my concerns with Mayor Smith, and with the support of a number of Councillors, had this meeting with the CCC deferred so that the Council could get on with its ordinary business.
  1. [565]
    Ms Kelsey submitted[544] that Cr Lutton's evidence in chief was untrue by referring to a specific part of Cr Lutton's cross-examination about this matter (T 7-61, ll 1-6, ARB, page 5614), namely:

You knew before you decided to terminate the employment of Ms Kelsey that Councillor Dalley had agreed to the timing of the meeting, didn’t you?---Yeah.

Yes. It couldn’t have been a factor that you took into account in respect of terminating the employment, the timing of that meeting. Ostensibly it couldn’t have been a factor?---No, probably not.

  1. [566]
    However, as the Councillors submitted:[545]
  • Cr Lutton’s evidence in chief was about his concern that Ms Kelsey had sought to change the date for the CLC meeting without consultation with all councillors and his concern that Ms Kelsey did not understand the importance of CLC meetings;
  • Ms Kelsey's cross-examination was directed at the wrong topic because Cr Lutton’s expressed reason for wanting to terminate her employment was her failure to understand the importance of CLC meetings and her failure to consult with all councillors before seeking to alter those meetings; and
  • the cross-examination upon which Ms Kelsey relies was concerned with who made the decision to move the meeting and whether it had been approved by Cr Dalley (as Acting Mayor), and none of those questions touched on the issue of whether Ms Kelsey understood the importance of CLC meetings or whether she should have consulted with all councillors about moving the meeting.
  1. [567]
    I accept the Councillors' submissions. Upon a consideration of Cr Lutton's evidence in chief, and the exact topic of the cross-examination referred to by Ms Kelsey, it was not the case that Cr Lutton's evidence in chief was revealed to be untrue. The topics were not the same and the concession made by Cr Lutton, therefore, cannot be said to be a significant backtracking by Cr Lutton in cross-examination.
  1. [568]
    Thirdly, Ms Kelsey made reference[546] to Cr Lutton's evidence in chief (ARB, page 2864), namely:

Performance in budget meetings

  1. 213.In January 2018, budget meetings were held on 30 and 31 January 2018.
  2. 214.At her request, Ms Kelsey led the introduction to these meetings.
  3. 215.I perceived Ms Kelsey's performance and delivery in these meetings to be singularly unimpressive and did not meet the expectations of what I expected from a CEO; in particular, a CEO on a remuneration package of approximately $500,000.
  4. 216.My expectation was that Ms Kelsey would outline a strategic approach to the future needs of Council, including how Council could increase its borrowings to $ 1.4 billion to fund infrastructure in the City, and how the CEO was going to manage the business in preparation for seeking this Kelsey v Logan City Council (No. 5) [2024] ICQ 15funding.
  5. 217.I did not feel Ms Kelsey made any valuable contribution to these discussions across the two days.
  6. 218.Ms Kelsey's performance in these meetings compounded my initial concerns about her suitability to be the CEO of Council because she failed to demonstrate knowledge or skills about budgetary or financial matters.
  1. [569]
    Ms Kelsey submitted:[547]

Cr Lutton's solemn statements in this regard cannot stand against his acceptance that in fact the discussion was led (as was appropriate) by Mr Trinca and Robert Strachan, and his far more moderate statements to Ms Hunter to the effect that he thought Ms Kelsey had done a good job in 'settling staff' following the departure of Mr Milner, the previous CEO. In addition, he made a comment to Ms Hunter about not having an opportunity to witness Ms Kelsey's abilities in facilitating and leading budget deliberations, but readily agreed in cross-examination that the occasion for observing this capacity had not yet arisen because she had not been through a budget process. Further, he ultimately accepted that Ms Kelsey had been involved in, and paying appropriate attention in, budget meetings immediately prior to her termination. Again, those matters were not dealt with in his Honour's reasons.[548]

  1. [570]
    These submissions cannot be accepted for four reasons.
  1. [571]
    First, Ms Kelsey submits that Cr Lutton's concerns were unfounded because the '…discussion' was led by two other staff members.  However, as the Councillors submit,[549] it is difficult to see how that is relevant to assessing Cr Lutton's evidence, particularly when having regard to his cross-examination about this matter where he was critical of Ms Kelsey. At T 7-67, ll 4-21, ARB, page 5620, Cr Lutton's evidence was:

Yes?---and our staff did a good job of setting the scene, but that didn't appear to me at the first one of 2018.

And when you say your staff did a good job, who are you referring to?---Well, the acting CEO, Silvio Trinca led the day.

Yes?---And Robert Strachan provided facts and figures.

So, again, if there was some difficulty in early 2018, that’s not a matter you cast at Ms Kelsey alone. Others are involved. Correct?---It’s – it’s – I mean, if the CEO is not going to take responsibility for all these things, what are we paying her for? She is the leader – or she was the leader of the council – the bureaucracy, and I would have expected some strategic way forward that, you know, we’re up for a lot of money for – to borrow a lot of money for infrastructure and – but on the same hand we have cash reserves. So I would have liked to see some process going forward to say, well, we’ve got this much in the bank, we’re going to – you know, we can borrow this much to – to – to do that. That’s – that’s where we ended up last year and that’s where we’ve started this year.   

  1. [572]
    The fact that two other staff members did a good job '…setting the scene' about the budget in the meetings in January 2018 cannot logically detract from this evidence given by Cr Lutton. Councillor Lutton's views were derived by him from his observations of Ms Kelsey in the 30 and 31 January 2018 budget meetings. Councillor Lutton's evidence was that Ms Kelsey led the introduction to those meetings. Ms Kelsey was the chief executive officer of the Council and, ultimately, was the Council employee responsible for budget and finance matters.
  1. [573]
    Secondly, as the Councillors correctly submitted,[550] Cr Lutton’s interview with Ms Hunter occurred prior to the delivery of her final report in early December 2017.[551] Councillor Lutton expressly identified that when he spoke with Ms Hunter, and stated that he felt she (Ms Kelsey) had done a good job after Mr Milner's departure, he had not yet seen Ms Kelsey's performance facilitating and leading budget deliberations.[552] Further, Cr Lutton gave the same evidence in cross-examination (T 7-18, l 35 to T 7‑19, l 4, ARB, pages 5571-5572):

And as we go through from paragraph 111, the first thing you say there is that you – Ms Kelsey had done a good job in settling staff following the departure of Mr Milner?---Yep.

Continuing:

But I had not witnessed her abilities in facilitating and leading budget deliberations.

Now, of course, but November of 2017, noting the budget cycle, she really didn’t have much of an opportunity at that point to have been facilitating and leading budget deliberations, did she?---No, that’s right.

Yes. And so that was – the fact that you hadn’t witnessed her abilities in facilitating and leading budget deliberations, that was really a neutral point, wasn’t it, because you hadn’t witnessed something that she hadn’t had the capacity to do to that point?---Yeah, that’s right, yeah.

  1. [574]
    However, Councillor Lutton's evidence in chief concerned his observations of Ms Kelsey in the budget meetings on 30 and 31 January 2018.
  1. [575]
    Thirdly, in terms of Ms Kelsey's submission that Cr Lutton accepted that Ms Kelsey was paying attention and that this disposed of his concerns, the cross-examination does not support that proposition:

Yes.  So it wasn’t the case, in my submission.  I suggest to you that she wasn’t paying appropriate attention to the budgeting process, was it? --- She may have been paying appropriate attention, but ---

Yeah? ---  I didn’t pick up that she had a great grasp of the needs and – and how to budget for those needs.[553]

  1. [576]
    As the Councillors correctly submitted,[554] this evidence from the cross-examination of Cr Lutton, concerning the budgeting process, was entirely consistent with his evidence in chief.
  1. [577]
    Finally, as the Councillors submit, it was not put to Cr Lutton that his concerns about Ms Kelsey's performance in the budget meetings were not (part of) his real reasons for voting to dismiss her, such that, in those circumstances, it is entirely unsurprising that the Vice President accepted his evidence.[555]
  1. [578]
    Again, upon a consideration of Cr Lutton's evidence in chief and his evidence in cross‑examination, it was not the case that Cr Lutton's evidence in chief was revealed to be compromised. The topics were not the same and the concessions made by Cr Lutton, therefore, cannot be said to be a significant backtracking by Cr Lutton in cross‑examination.
  1. [579]
    No error of law is disclosed. No errors of fact are disclosed.

'D.4E Cr Swenson's purported reasons for dismissing Ms Kelsey'

  1. [580]
    In paragraphs [538]-[566], the Vice President summarised Cr Swenson's evidence, namely:
  • in paragraphs [541]-[542], about the Relay for Life;
  • in paragraphs [543]-[545], about the control of information;
  • in paragraphs [546]-[551], about the meeting on 13 October 2017 (when councillors met to discuss the PID);
  • in paragraphs [552]-[554], about the Hunter Report;
  • in paragraphs [555]-[558], about the USA Delegation;
  • in paragraphs [559]-[562], about Committee Seating; and
  • in paragraphs [563]-[565], about ARGs and re-alignment of committee structures.
  1. [581]
    The Vice President[556] also set out Cr Swenson's sworn reasons for voting to dismiss Ms Kelsey:
  1. [540]
    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:
  1. a.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:
  2. b.Ms Kelsey's attendance at the relay for life event with Councillors Power, Koranski and McIntosh;
  3. c.Ms Kelsey's decision to dress up in joint costume with Cr Power at this event;
  4. d.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;
  5. e.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;
  6. f.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;
  7. g.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;
  8. h.Cr Swenson's belief that Ms Kelsey had failed to listen to or respect the views of the Councillors, including:
  1. i.as to the seating arrangements for Committee meetings; and
  2. ii.who an appropriate delegate would be to travel as part of the USA and Canada delegation;
  1. i.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;
  2. j.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
  3. k.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.

…

Decision not to appoint Ms Kelsey

  1. [566]
    During her probationary period, Ms Kelsey had not demonstrated any significant level of strategic or financial management capabilities.  Cr Swenson observed that there were a number of incidents where Ms Kelsey failed to show reasonable judgment and leadership or failed to listen to or respect views of Councillors.
  1. [582]
    In paragraphs [567]-[582], the Vice President undertook an assessment of Cr Swenson's evidence about the reasons he voted to dismiss Ms Kelsey. In doing so, the Vice President gave reasons why his Honour found that Cr Swenson did not vote to dismiss Ms Kelsey for a proscribed reason. 
  1. [583]
    In doing so, the Vice President:
  • at paragraphs [567]-[570], in dealing with Cr Swenson's concern about whether or not Ms Kelsey had the capacity to remain impartial, by reference to her dressing up in a costume with Cr Power for the Relay for Life, referred to:
  1. –Cr Swenson's maintenance of that concern during his cross-examination; and
  2. –the undisputed fact that Ms Kelsey dressed up in costume with Cr Power and attended an event inside Cr Schwarz's division;
  • at paragraphs [571]-[573], in dealing with Cr Swenson's comments made at the councillors' meeting on 13 October 2017 to discuss the receipt of the PID:
  1. –set out the particular comments made by Cr Swenson of which Ms Kelsey took issue; and
  2. –by considering the undisputed facts, namely Cr Swenson's comments as a whole, concluded that his (Cr Swenson's) concern was not that the PID had been made, but that he had been informed of the specifics of it; and
  • at paragraphs [575]-[580], in dealing with Cr Swenson's WhatsApp messages on 10 or 11 January 2018 (the Santa message) and on 18 January 2018 (the Psalms 7:14‑16 message), by reference to his evidence in cross-examination about them, and by reference to his evidence and that of Crs Dalley and Lutton about the toxic environment in which the Council was operating, accepted that the messages were not directed to Ms Kelsey and the lodgement of the PID.
  1. [584]
    The Vice President concluded by stating:
  1. [581]
    It does not necessarily follow that a criticism by Cr Swenson in respect of the accuracy of Ms Kelsey's affidavit material can suggest that he was minded to take action against her on the basis that she had made a PID.
  1. [582]
    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.
  1. [585]
    In paragraphs 138-141 of her principal submissions, Ms Kelsey submits:
  • the finding in paragraph [582] was made in the absence of the Vice President dealing in any way with the summary of evidence and points put forward in the closing submissions of Ms Kelsey;
  • the above circumstance was also inexplicable because the Vice President himself challenged Cr Swenson's evidence on his stated concern about the use of formal titles (which was not referred to in the Vice President's reasons), namely:

HIS HONOUR: But if it's such an issue, why in 12 months have you not done something about it: got on the telephone to Mr Trinca and said, "Look, can you get this thing rescinded?" Simple as that. "People are still calling me by an official title."?--- I just correct them myself.

But if you say people are worried, if workers are worried within the workplace, why don't you just get on the phone and say to Mr Trinca, "This is a concern to me. Can you get it fixed?" Send them a note?--- I hadn't thought to - - -

At a staff meeting, tell them, "Don't worry about it. I'm content to be called by my first name", or whatever?--- Yes. I hadn't thought to do that.; and

  • the Vice President recited the various concerns that Cr Swenson referred to as forming his view as to whether Ms Kelsey should be terminated and it was obvious that his Honour was particularly focused on the stated concern that Ms Kelsey had acted in a politically partisan manner, by attending the Relay For Life event and dressing up in a costume '… [h]owever, this too was expressly challenged in evidence,' referring to Cr Swenson's evidence in cross‑examination about that issue set out in paragraph [568] of the Primary Decision, namely:

MR MURDOCH: At best, she made a mistake in attending in the costume with Power?

CR SWENSON: A terrible mistake, yes.

MR MURDOCH: 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?

CR SWENSON: I–I would expect a better understanding of the political ramifications of such behaviour.

MR MURDOCH: That wasn't an issue that you relied upon in determining to terminate her employment, was it?---Yes, it was.

CR SWENSON: Something as trivial, I suggest to you, as that?---You can suggest it's trivial, but it's my reason.

  1. [586]
    In her submissions in reply, Ms Kelsey submits that the Councillors did not '…grapple with the fact that his Honour did not deal at all' with Ms Kelsey's written trial submissions about why Cr Swenson's evidence ought not be accepted.[557]
  1. [587]
    In written and oral submissions, the Councillors submitted[558] there is no error in respect of the factual findings concerning Cr Swensen’s evidence because:
  • Ms Kelsey does not appear to make any submission as to any particular finding of fact which was in error, as opposed to fastening on what the Vice President said in paragraph [582] of the Primary Decision;
  • in respect of paragraph [582], it is readily apparent that the Vice President was aware that Cr Swensen had been cross-examined and challenged about his various reasons;
  • the Vice President set out in paragraph [568] the cross-examination about the Relay for Life issue and reading paragraph [582] in the context of the reasons as a whole, and in particular having regard to the use of the word 'remained', when the Vice President used the word 'unchallenged', the Vice President meant 'unshaken' or 'undisturbed' and read in that way, the sentence makes both grammatical and contextual sense;
  • the authorities counsel against reading the decisions of trial judges with a fine‑tooth comb, carefully attuned for error; and
  • Ms Kelsey's trial submissions, about why Cr Swenson's evidence should have been rejected, was dealt with by the Vice President and squarely rejected.  
  1. [588]
    I cannot accept Ms Kelsey's submissions.
  1. [589]
    As to Ms Kelsey's first two submissions in her principal submissions, Ms Kelsey referred to paragraph [582] of the Vice President's reasons and submitted that '… finding' was made in the absence of the Vice President dealing in any way with the '… summary of evidence and points put forward' by Ms Kelsey in her (written) closing trial submissions at paragraphs 4.206-4.210, ARB, pages 4651-4652. When close regard is had to what was precisely submitted to the Vice President, and all of the Vice President's reasons, not just paragraph [582], that submission lacks merit and reveals no error of law or fact for the following reasons.
  1. [590]
    At paragraph 4.206, ARB, page 4651, Ms Kelsey submitted to the Vice President that Cr Swenson's concerns that Ms Kelsey was controlling information and micromanaging were baseless because Cr Swenson's real issues were that he was receiving information differently to how he had previously received it and the information was of a decreasing amount. It was further submitted that the councillor updates were never raised by him with Ms Kelsey or Mayor Smith, such that it was '… not a real issue relied upon for termination.' But the Vice President referred to Cr Swenson's evidence about both of those issues in paragraphs [543]-[545].  The Vice President summarised Cr Swenson's evidence that he received the same, if not less information, once it had been filtered through Ms Kelsey's office and he felt misled by Ms Kelsey because he ceased to receive information directly from Council Officers and Directors.
  1. [591]
    At paragraph 4.207, ARB page 4652, Ms Kelsey submitted to the Vice President that the committee seating arrangement was '… hardly an issue that he relied upon for termination' because the Councillors' views were ultimately accepted by Ms Kelsey. The Vice President dealt with Cr Swenson's evidence about this issue at paragraphs [559]-[562] and his evidence that, notwithstanding Mayor Smith advising Ms Kelsey that '… you have heard the views of the Chairs', and notwithstanding the views of the chairs and Mayor Smith's intervention, Ms Kelsey did as she proposed in any event.
  1. [592]
    At paragraph 4.208, it was submitted that the USA delegation '…was not a valid reason for termination' because in cross-examination Cr Swenson withdrew the allegation he made in paragraph [209] of his affidavit (ARB, page 3230). That paragraph was merely about Cr Swenson's evidence that Ms Kelsey kept stating, without elaboration, that Ms Frawley should not attend the USA delegation. In Ms Kelsey's trial submission, that was the extent of the submission about the withdrawal by Cr Swenson of any allegation about this matter. The Vice President dealt with the USA delegation issue in paragraphs [555]-[558] and at [558], referred to Cr Swenson's other evidence, not commented upon by Ms Kelsey in her submissions to the Vice President, that Cr Swenson found it frustrating that Ms Kelsey was refusing to have regard to whom the councillors believed should attend that delegation.  
  1. [593]
    At para. 4.209, Ms Kelsey submitted to the Vice President (by reference to the exchange between the Vice President and Cr Swenson as reproduced above in the second dot point of paragraph [585]) the use of formal titles '… was absolutely not an issue' for Cr Swenson. But the subject matter of that exchange, between the Vice President and Cr Swenson, was not about the precise issue Cr Swenson swore he had with Ms Kelsey.[559] At paragraph [574], the Vice President referred to Cr Swenson's sworn concern that Ms Kelsey had attempted to change the working relationship between councillors and staff by requiring councillors to be acknowledged by their formal titles at all times.
  1. [594]
    Paragraph 4.210 was Ms Kelsey's concluding submission that Cr Swenson's sworn reasons were not his '…true reasons for termination of Ms Kelsey's employment.'
  1. [595]
    Four things can be said about the above analysis.
  1. [596]
    One, the Vice President's reasons referred to each of the matters to which the Court was taken as referred to in Ms Kelsey's trial submissions.
  1. [597]
    Two, on the analysis of each of those (trial) submissions about Cr Swenson's reasons, they attempt to deflect the probative force of Cr Swenson's evidence by sidestepping the substantive or real issue about Ms Kelsey's performance of which Cr Swenson was critical.
  1. [598]
    Three, self-evidently, paragraph [582] of the Primary Decision is a summary of the Vice President's assessment of all the evidence given by Cr Swenson. This obviously was inclusive of the issues emphasised by Ms Kelsey (referred to above) in her submissions to the Vice President because his Honour referred to all of them in his reasons. I accept the Councillors' submissions, regarding the language used by the Vice President in paragraph [582], that Cr Swenson's reasons '…remained effectively unchallenged' when read in the context of the reasons as a whole. This clearly meant that the Vice President, contrary to Ms Kelsey's trial submissions, accepted as genuine the precise reasons given by Cr Swenson that he swore motivated him to vote to dismiss Ms Kelsey.
  1. [599]
    Four, Ms Kelsey's submissions about the Relay for Life issue cannot be accepted. First, the transcript of Cr Swenson's evidence in cross-examination, referred to by Ms Kelsey in her principal submissions, is not the entire extract of the transcript as set out in paragraph [568] of the Primary Decision. Secondly, despite the challenge made in cross-examination to Cr Swenson, the Vice President accepted Cr Swenson's sworn evidence about that issue, at paragraph [570], by accepting the Councillors' submission that the issue was not whether Cr Swenson's perception was reasonable, but whether, as a matter of fact, Cr Swenson held that concern (about Ms Kelsey not remaining                      apolitical). In addition to resolving that fact of Cr Swenson's perception in his favour by having regard to this evidence in cross‑examination (as set out in paragraph [568]), it was also resolved by reference to an undisputed fact, namely (at paragraph [570]):

In light of Ms Kelsey's conduct, such as dressing up in a costume with Cr Power and attending an event inside Cr Schwarz's division, there was a basis for that concern.

  1. [600]
    No error of law is disclosed. No errors of fact are disclosed.

'D.4F Cr Pidgeon's purported reasons for dismissing Ms Kelsey'

  1. [601]
    Councillor Pidgeon's evidence about why he voted to dismiss Ms Kelsey are set out in paragraphs 227-231 of his first affidavit:

MY DELIBERATIONS

  1. 227.Given my concerns about the matters raised both in the correspondence from Mr MacSporran QC and MinterEllison, I recall being quite clear in regards to my deliberations about Ms Kelsey's appointment.
  2. 228.In particular, I recall deliberating on whether I believed Ms Kelsey had the skills and attributes I considered necessary to be successful in the role of CEO.
  3. 229.Those skills and traits being:
  1. a.that Ms Kelsey have appropriate financial management skills and experience to successfully run an organization the size of the Council; and that she be heavily involved in the Council's budget process;
  2. b.that Ms Kelsey be across the key issues in each department and stream and be prepared, and able to speak on matters affecting the Council at meetings, if called upon;
  3. c.that Ms Kelsey be supportive of the Councillors in developing and implementing their ideas and initiatives; and,
  4. d.that Ms Kelsey remain apolitical and not be seen to be favouring any one Councillor or group.
  1. 230.Having regard to these skills and attributes, I did not consider Ms Kelsey suitable for the role of CEO with the Council, as:
  1. a.I 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;
  2. b.I did not believe 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,
  3. 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.
  1. 231.Incidents in Ms Kelsey's employment which led me to forming these views are set out from paragraph 64 to 195 of my affidavit.[560]
  1. [602]
    The Vice President dealt with Cr Pidgeon's evidence in paragraphs [510]-[537] of the Primary Decision. In these paragraphs, the Vice President set out the sworn evidence given by Cr Pidgeon for voting to dismiss Ms Kelsey, namely:[561]
  1. [512]
    Cr Pidgeon's reasons for voting to terminate Ms Kelsey's employment are set out in his affidavit of 11 April 2018 as follows:
  1. (a)
    budgetary process;
  2. (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
  3. (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.
  1. [603]
    In paragraphs [514] and [515] of the Primary Decision, the Vice President stated:[562]

Use of formal title

  1. [514]
    Cr Pidgeon was upset by the direction Ms Kelsey gave to staff to refer to him as Councillor at all times as she had not consulted with him and he preferred to be called by his first name.  He requested that staff revert to calling him by his Christian name, however despite his request staff would continue to refer to him as Councillor.

Relay for Life

  1. [515]
    Cr Pidgeon was informed by a Councillor that Ms Kelsey had attended the Relay for Life in a matching costume with Cr Power.  Cr Pidgeon felt this was inappropriate and a poor decision as the CEO must be seen to be apolitical.
  1. [604]
    In paragraphs [523]-[537], the Vice President undertook an assessment of Cr Pidgeon's evidence about the reasons he voted to dismiss Ms Kelsey, and gave reasons why his Honour found that Cr Pidgeon did not vote to dismiss Ms Kelsey for a proscribed reason.  In doing so, the Vice President:
  • at paragraph [523], summarised Cr Pidgeon's reason for voting to dismiss Ms Kelsey, namely, that he developed an adverse opinion of her and her abilities such that he did not regard her as suitable as the chief executive officer of the Council;
  • at paragraphs [524]-[530]:
  1. –referred to the primary attack made on Cr Pidgeon's evidence, being he held a negative view of Ms Kelsey because he had stated she was litigious in that she had commenced '… the legal process' said to be making the PID or commencing the QIRC proceedings;
  2. –in rejecting that attack, referred to the undisputed facts that immediately following Ms Kelsey making the PID, Ms Kelsey's lawyers sent correspondence to the Council seeking to control the probation process and making demands about her probation process; and
  3. –concluded those matters were the 'legal process' to which Cr Pidgeon referred, rather than '… the lodging of a PID'; and
  • at paragraphs [535]-[536], in rejecting a contention that the Councillors were coerced or persuaded to vote in any particular way, referenced the cross‑examination of Cr Pidgeon[563] about whether he had been previously requested to vote a particular way, his evidence that he would get such requests from time to time because of the (uncontentious) fact that they operated in a 'political environment' and that there was no defined voting pattern on the Council as evidenced by a recent decision about a crematorium where a number of the non-respondent councillors supported his position.
  1. [605]
    Ms Kelsey submitted:[564]
  • in respect of paragraph [514], no reference was made to Cr Pidgeon's concession that once he had made his own request of staff regarding using his given name, he was not concerned with it further 'at that point in time' and no safe explanation was given, or could be accepted, for that issue subsequently forming such an apparently prominent reason for Cr Pidgeon's voting intention;
  • in respect of paragraph [515], the Vice President did not have any reference to Cr Pidgeon's evidence that, at the time he learned about the Relay for Life event, he did not at that point in time really think anything more of it; and
  • much was made by Cr Pidgeon about his apparent concern that Ms Kelsey had breached his privacy by disclosing a complaint that he had made about Cr Koranski, however, no reference was made by the Vice President to the submissions of Ms Kelsey:
  1. –as to the reasons for that disclosure, which were supported by legal advice received from Clayton Utz; and
  2. –that, in the circumstances, the concern claimed by Cr Pidgeon was confected and designed to obscure prohibited reasons.
  1. [606]
    In written submissions, the Councillors submitted:[565]
  • Ms Kelsey's submissions misunderstand the nature of Cr Pidgeon’s evidence and mischaracterise his evidence in cross-examination;
  • Cr Pidgeon’s reasons for wanting to terminate Ms Kelsey's employment were set out in paragraph [230] of his affidavit which was correctly appreciated by the Vice President in paragraphs [512] and [523] of the Primary Decision;
  • Cr Pidgeon did not assert that the use of formal titles, or the breach of his privacy, were reasons for voting to dismiss Ms Kelsey, and while he stated he was dissatisfied by those matters and referred to them in his affidavit, they were not his reasons for his vote; and
  • in respect of Cr Pidgeon's evidence in cross-examination about the Relay for Life, while he accepted that when he was first told of the Relay for Life, he did not think anything more of it,[566] Cr Pidgeon went on to state that he became concerned about the matter from the additional information that he learned over the following days[567] and gave his reasons why, namely:

It was a trivial issue, wasn’t it? --- I don’t think it was.

Trivial issue which you grasp hold of to try and find something to be critical of her for; correct? --- No, that’s untrue.

It certainly wasn’t a matter that was relevant in any way, I suggest, to your decision to terminate her employment? ---  it formed part of the decision ultimately.

A very, very minor aspect of it?

HIS HONOUR: Was that a yes or what? You nodded?---  it was a minor aspect of it.  It was part of the ultimate decision, though.  There was no single conduct or behaviour that formed the decision.  This was one of many.[568]  

  1. [607]
    In her reply,[569] Ms Kelsey submitted that:
  • Cr Pidgeon’s sworn reasons were, for the most part, stated quite generally; and
  • Cr Pidgeon’s ‘upset’ that staff were calling him by his formal title was recorded at paragraphs 69 to 74 of his first affidavit, so the points made by the Councillors, that this matter was merely context and that it was not said by Cr Pidgeon to form part of his reasoning on the dismissal vote, is simply wrong.
  1. [608]
    In my view, no error of fact or law is made out by Ms Kelsey's submissions.
  1. [609]
    First, for the reasons I have given above, the Vice President accepted that Cr Pidgeon genuinely held the reasons he gave for Ms Kelsey's unsuitability. The Vice President's reasons were adequate in that the parties can understand how his Honour came to that conclusion. Reference was made to the main arguments raised by Ms Kelsey for not accepting his evidence and reasons were assigned for rejecting them.
  1. [610]
    Further, the conclusion was not based on Cr Pidgeon's demeanour, but was reached by referring to the main arguments why Ms Kelsey contended his evidence should not be accepted, which were then examined against undisputed facts and other evidence.
  1. [611]
    Secondly, while Cr Pidgeon's evidence was that incidents in Ms Kelsey's employment which led him to form his three main reasons for determining that Ms Kelsey was not suitable were set out from paragraph 64 to 195 of his affidavit, of which the 'title issue' was one, the actual reasons Cr Pidgeon voted to dismiss Ms Kelsey are those in paragraph 230 of his affidavit. The matters referred to in paragraphs 64 to 195 of his affidavit include a mixture of events, and did not just refer to incidents in respect of which Cr Pidgeon directly attributed his negative view of Ms Kelsey's suitability. Relevantly to the three main reasons Cr Pidgeon gave for his view of Ms Kelsey, the matters referred to in his affidavit were:
  • lack of trust and confidence in her financial management (paragraphs 172-176 of Cr Pidgeon's affidavit);
  • not being supportive of Councillors' views and not working cohesively with the Councillors on their vision for Logan City (paragraph 123 in respect of what he said to Ms Hunter and paragraphs 177-187 about Committee seating); and
  • being apolitical (paragraph 123 in respect of what he said to Ms Hunter and paragraphs 83-89 about the Relay for Life).
  1. [612]
    Thirdly, having regard to Cr Pidgeon's sworn reasons for voting, I accept the Councillors' submissions, that while the issues of formal titles or the breach of his privacy dissatisfied him, they were not the reasons for his vote. The three reasons are those set out earlier from his affidavit. Having regard to his affidavit as a whole, those reasons were not generally stated by Cr Pidgeon.
  1. [613]
    Fourthly, the evidence was that Cr Pidgeon did go on to think more about the Relay for Life issue which was connected with one of his reasons for voting, namely, Ms Kelsey not remaining apolitical.
  1. [614]
    For these reasons, no Fox v Percy or Earthline error arises. No error of law about inadequacy of reasons arises.

'D.4G The way the PID complaint was sent'

  1. [615]
    In respect of this complaint, Ms Kelsey referred[570] to paragraph [805] of the Primary Decision, where the Vice President stated:
  1. [805]
    The nature of the allegations made in the PID were described as "salacious" and, in a view of some of the Third to Ninth Respondents, had the capacity to damage the reputation of a member of staff and Mayor Smith.  The subject matter of the complaint did not involve the Third to Ninth Respondents.  They could not understand why the PID had been sent to them.  For some of the Respondents the way in which the PID was disseminated was a matter of concern.  Whilst it was a matter of concern, it does not follow that the Third to Ninth Respondents would react in a prohibited way.[571]
  1. [616]
    Ms Kelsey submitted that the Vice President's conclusion proceeded on an incorrect premise because the bolded words demonstrate a misapprehension as to the subject matter of Ms Kelsey's PID and why it was entirely appropriate for the PID to be provided to all councillors. This was said to be because:
  • Ms Kelsey was concerned that, without the knowledge or approval of most councillors, Mayor Smith and Crs Dalley and Schwarz were conducting a probationary review in respect of her employment which was unfair and potentially unlawful;
  • while Ms Kelsey reported to Mayor Smith, it was the Council which had authority to make a decision with respect to Ms Kelsey's employment;
  • Ms Kelsey sought a response sent with the authority of Council;
  • although she strictly reported to Mayor Smith, she had concerns that were reasonably likely to amount to corrupt conduct or maladministration which adversely affected her interests including:
  1. –concerns with respect to various matters in which Mayor Smith was involved with respect to Ms Frawley, including a reasonable suspicion of an undisclosed and personal relationship; and
  2. –concerns with respect to the probationary process Mayor Smith had purported to commence with respect to Ms Kelsey's employment; and
  • at paragraph [355] of the Primary Decision,[572] the Vice President focused on Cr Dalley's evidence that she was upset, not by the PID itself, but by the manner it was delivered, which '….seemed to be accepted without the Vice President explaining why or how the mode of delivery of the PID was legitimately objectionable.'[573]
  1. [617]
    In written[574] and oral submissions,[575] the Councillors submitted that:
  • the Vice President in [805] was not describing the complaint, but was describing what they (the Councillors) thought about it, in other words, the Vice President was simply stating what happened, and once that is understood, there is no error in the Vice President's reasoning;
  • because it was a recitation of what the Councillors thought about it, his Honour did not have to explain why the Councillors would have been upset and the reason why they would have been upset was clear on the face of paragraph [805]; and
  • the criticism about paragraph [355] is without merit because it is summary of Cr Dalley’s evidence rather than his Honour's acceptance or adoption of it and, in any event, in paragraphs 132 to 135 of her first affidavit, Cr Dalley explained that rather than hand delivering the complaint to Mayor Smith and the Councillors, it was emailed to their official email addresses which meant that it was visible to all of the administrative staff responsible for maintaining and responding to emails sent.
  1. [618]
    In her submissions in reply, Ms Kelsey submitted that:
  • because paragraph [805] was, in the Primary Decision, under the heading of 'Conclusion' it cannot be safely inferred that it was a mere recitation of the parties' submissions or evidence;
  • if it was a mere recitation, then there was nothing before this Court to explain what the Vice President made of the point, namely ' … whether his Honour considered that the individual respondents were correct in thinking that the PID did not concern them or whether that view could rationally and genuinely have been held by them'; and
  • in terms of paragraph [355], she does not allege that the Vice President made a finding, rather, the difficulty was that the Vice President did not deal further with that evidence, and did not scrutinise whether there was any proper basis for Cr Dalley to be upset at the manner in which the PID was delivered.[576]
  1. [619]
    I am unable to conclude that Ms Kelsey's submissions are meritorious.
  1. [620]
    First, having regard to paragraph [805], despite the fact that that paragraph appears under the heading of 'Conclusion' in the Primary Decision, when the paragraph is read as a whole, it is clear that the Vice President was summarising the position of the Councillors about why the PID had been sent to them. The Vice President was not coming to a determinative conclusion that he accepted that the subject matter of the complaint made by Ms Kelsey did not involve them.  As a consequence, there was nothing for  the Vice President to further explain about whether or not that view was genuinely held. The point about that paragraph really comes from the last sentence in that what his Honour was pointing to was that despite the views of the Councillors about the mechanism of the dissemination of Ms Kelsey's PID, as a matter of plausibility, it did not follow, because of those views, the Councillors would unlawfully retaliate against Ms Kelsey. Such a conclusion is inherently plausible. No error of fact arises.
  1. [621]
    Secondly, in terms of paragraph [355], in recognising Ms Kelsey's submission in reply that the Vice President was not making a finding of fact, I fail to see how, by the Vice President not going on to consider whether there was a proper basis for Cr Dalley to be upset about the way Ms Kelsey's PID was delivered, the absence of that assessment logically results in a conclusion that the Vice President failed to consider the essential question that his Honour needed to determine about what motivated Cr Dalley to vote the way she did. It was not a matter the Vice President had to determine in coming to his conclusion about Ms Kelsey's case.
  1. [622]
    No error of law is disclosed. No errors of fact are disclosed.

'D.4H Reliance on legal advice'

  1. [623]
    In paragraph 148 of her principal submissions, Ms Kelsey submitted that the Vice President placed reliance on the fact that the Councillors '… received legal advice warning them of the consequences of allowing' the PID to infect their reasoning, and, in this regard, referred to paragraph [776] of the Primary Decision where the Vice President stated:
  1. [776]
    The Applicant contends that the alignment between the Second to the Ninth Respondents was such that they voted en masse to terminate the employment of the Applicant.  It must be remembered that the Third to Ninth Respondents received legal advice concerning the rights and responsibilities associated with the lodgement of the PID by the Applicant;  correspondence from MinterEllison warning the Third to Ninth Respondents of the potential consequences flowing from any attempt to terminate the employment of the Applicant;  correspondence of the CCC of 5 February 2018 informing them of the penalties involved in taking action against a person because they had made a PID;  and advice from the CCC that they would be investigating any action taken in respect of Ms Kelsey’s employment.  It seems to me inconceivable that the Third to Ninth Respondents would disregard the correspondence, advice and warnings and through some blind loyalty to Mayor Smith vote to terminate the Applicant for a proscribed reason.
  1. [624]
    Ms Kelsey's first submission[577] was that the finding proceeded on a case that was not put; namely, that at no point did she allege that the Councillors had blind loyalty for another. I cannot accept that submission. Earlier in these reasons, I set out Ms Kelsey's pleaded and argued case about her alignment claim (paragraphs [231]‑[236]). When regard is had to that claim and the submissions made, in particular, Ms Kelsey's oral submission that it could be inferred that it was logical that the Councillors would react adversely to the public interest disclosure '… against other team members' (such as Mayor Smith), then, in my view, the 'blind loyalty' phrase reasonably describes a principal aspect of Ms Kelsey's alignment claim, even though Ms Kelsey stated that she never used that phrase. The Vice President correctly assessed the case put by Ms Kelsey about alignment. No error is disclosed by his Honour's use of that phrase.
  1. [625]
    Ms Kelsey's second submission was that:[578]
  • the Vice President's reasons (in paragraph [776]) are otherwise substantially incomplete because they do not record any assessment, by reference to the evidence, as to why such action (about the legal advice) was 'inconceivable' or '…effectively determinative of reasoning of the individual respondents.';
  • the Vice President did not have regard to the fact that, save for Cr Smith and Cr Lutton, the Councillors did not follow at least one aspect of the advice they were given, being to contemporaneously record their reasons for voting against Ms Kelsey; and
  • the Vice President did not deal with the fact that Cr Smith first produced his notes at trial (rather than in his various affidavits filed earlier in the proceedings) or that Cr Lutton did not produce his notes at all (despite a call for them).
  1. [626]
    As to the first point, the Council submitted that it was wrong to contend that the Vice President's reasons are substantially incomplete because his Honour did not record any assessment as to why such action was 'inconceivable' or '… effectively determinative' of the reasoning of the Councillors. This was because:
  • the facts were not merely that the Councillors took legal advice before they voted;
  • the evidence was that, as his Honour noted:
  1. –the Councillors were under threat of certain litigation from Ms Kelsey's then lawyers (MinterEllison);
  2. –they had received the personal letter from Mr MacSporran QC, Chairman of the CCC, warning of potential legal action; and
  3. –they had received legal advice from the lawyers representing the Council; and
  • as a consequence, the correct path to follow, and the likely serious consequences to the Councillors if they behaved improperly, were squarely placed before them immediately before they voted; and
  • as a consequence, no further elaboration was required by his Honour as to why it was considered inconceivable that Councillors would ignore the threats and advice '….and proceed to engage in such potentially self-destructive and arguably criminal behaviour.'[579]
  1. [627]
    The Councillors also submitted that Ms Kelsey fundamentally misapprehends the role paragraph [776] plays in the Primary decision, for reasons that include that, in paragraphs [350]-[736], the Vice President gave his Honour's reasons for finding that each Councillor did not vote to dismiss Ms Kelsey for any proscribed reasons; and that in paragraph [776], by referring to all the legal correspondence and legal advice the Councillors received, the Vice President was pointing out the inherent implausibility of Ms Kelsey's alignment claim.[580]
  1. [628]
    I cannot accept Ms Kelsey's submissions.
  1. [629]
    First, because of the Vice President's earlier comprehensive assessment of the evidence and argument about what motivated each of the Councillors to vote to dismiss Ms Kelsey, and his Honour's subsequent conclusions about the lawful reasons each Councillor voted to dismiss Ms Kelsey, it is wrong to suggest that the reference to the legal correspondence and advice in paragraph [776] was '… effectively determinative of the reasoning' of the Councillors. As the Councillors correctly identify, that submission ignores all the other reasons given by the Vice President in his Honour's assessment and acceptance of the sworn evidence of the Councillors.
  1. [630]
    Secondly, the Vice President did refer to the legal correspondence and legal advice, received by the Councillors immediately before the vote, as being relevant facts. However, those (undisputed) facts were probative to further addressing his Honour's rejection of Ms Kelsey's alignment claim. Viewed in that clear and correct context, the Vice President's reasons are self-evidently complete. As the Council submitted, in light of the legal correspondence and legal advice as described by the Vice President in paragraph [776], it was inconceivable that the Councillors would ignore the threats and advice to engage in such potentially self-destructive behaviour. Further, the implausibility of the Councillors acting unlawfully in those circumstances was a consideration to which the Vice President could legitimately have regard.
  1. [631]
    As to the other two points, as the Councillors submitted[581] (which was not disputed by Ms Kelsey in her reply submissions), Cr Smith was not cross-examined about his notes and Cr Lutton was not cross-examined about his failure to produce his notes, and it was not suggested his evidence about taking notes was false and, therefore, there is no case to draw such an adverse inference about those matters. I accept these submissions.
  1. [632]
    If Cr Smith and Cr Lutton were not relevantly cross-examined about these matters in the trial, it is difficult to now accept that adverse inferences should be drawn from them. Otherwise, I have earlier dealt with the other submissions Ms Kelsey made about the legal advice the Councillors received. To repeat, it requires conjecture to conclude that a reasonable and definite inference to draw is that the Councillors ignored their own counsel's advice and acted unlawfully in voting to dismiss Ms Kelsey because they ignored other legal advice to take contemporaneous notes of their reasons for decision.
  1. [633]
    At paragraph 151 of her principal submissions, Ms Kelsey submitted that the entire scheme of the general protections provisions would be defeated if a trier of fact could rely on the taking of legal advice as determinative of whether or not a person subsequently acted lawfully. This submission cannot be accepted. As the Council submits, it misstates the effect of both the evidence and findings by the Vice President.[582] The Vice President gave reasons, not solely involving the Councillors' receipt of their own legal advice, as to why he accepted the sworn evidence of the Councillors. Secondly, the evidence was not just legal advice, but the contentious legal correspondence from Ms Kelsey's former lawyers and the warnings from the Chairperson of the CCC. Thirdly, the facts of the legal correspondence and legal advice were referred to in the context of the further rejection of Ms Kelsey's alignment claim. The actual facts before the Vice President were not the narrow scenario put by Ms Kelsey in paragraph 151 of her principal submissions.

Conclusion about sub-heading D.4 of Ms Kelsey's principal submissions

  1. [634]
    For the reasons I have given above, in respect of the complaints made by Ms Kelsey about the reasons given by the Vice President for accepting the sworn evidence of Crs Dalley, Breene, Lutton, Swenson and Pidgeon, and the complaints made about the way the PID was sent and the reliance on legal advice:
  • those reasons were adequate in that the parties can understand how the Vice President came to his conclusions about each of them; and
  • no errors of fact in the Fox v Percy or Earthline sense are made out because Ms Kelsey's complaints do not establish that there was any incontrovertible evidence which shows the Primary Decision was wrong, do not establish that the Primary Decision was glaringly improbable or was contrary to any compelling inferences, and do not establish that the Vice President misused his obvious advantage.
  1. [635]
    None of the complaints made under this part, about alleged errors of law or alleged errors of fact, are made out.
  1. [636]
    To the extent Ms Kelsey seeks to rely on proposed grounds of appeal that are tied to these complaints, Ms Kelsey should not be allowed to amend her application to appeal on such grounds.

The allegation that the Vice President committed the same error in approach as the trial judge in TechnologyOne

  1. [637]
    In her principal submissions,[583] Ms Kelsey referred to the decision of Rangiah, White and O'Callaghan JJ in TechnologyOne and submitted that:
  • their Honours held that the primary judge had failed to provide adequate reasons for his Honour's decision and did not answer the essential question by reference to all of the evidence;[584]
  • the above finding was '…based both on the quantity and probative character of evidence that was overlooked by the primary judge'; and
  • of particular relevance to her matter, the primary judge had held that the '… objective reasonableness or otherwise of the reasons of which [the decision maker] gave evidence as having motivated the decision to terminate Mr Roohizadegan is largely irrelevant.'[585]
  1. [638]
    Ms Kelsey then referred to paragraphs [125]-[128] of TechnologyOne, namely:
  1. [125]
    As we have explained above, it was incumbent upon the learned primary judge to have regard to the whole of the evidence, including critically for present purposes the objective, contemporaneous evidence upon which the appellants relied to prove on the balance of probabilities that none of the seven relevant complaints was a substantial and operative reason for the decision taken by Mr Di Marco to terminate Mr Roohizadegan’s employment.
  2. [126]
    Senior counsel for Mr Roohizadegan submitted that the learned primary judge “did take [objective reasonableness] into account … repeatedly, every time he made an adverse finding against Mr Di Marco, he did it by reference to circumstances including what his subordinates had told him, what was in documents before him, and what the state of affairs was concerning the shunting of our client towards an unheralded termination”.
  3. [127]
    We cannot accept that submission.  In our view, that is, with great respect, precisely what the learned primary judge did not do, as we shall explain.
  4. [128]
    It seems to us that his Honour’s observations (at [171]) that “the objective reasonableness or otherwise of the reasons of which Mr Di Marco gave evidence as having motivated the decision to terminate Mr Roohizadegan is largely irrelevant” and (at [172]) that “any conclusions that the Court draws as to what it might or might not consider to be objectively unjustifiable as a reason for termination cannot serve as a foundation for rejecting Mr Di Marco’s evidence as to his own state of mind” may be read as misconceiving the obligation to have regard to the whole of the evidence, including the objective, contemporaneous evidence relied upon by TechnologyOne and Mr Di Marco.  In any event, whether or not the learned primary judge misconceived that obligation, we are satisfied, for reasons explained below, that his Honour erred by failing to have any regard, or any sufficient regard, to a volume of contemporaneous documentation that on its face was consistent with Mr Di Marco’s explanation of the true reasons for the termination of Mr Roohizadegan’s employment.  That is another independent reason necessitating a retrial of the adverse action claim, because the process of fact finding miscarried.
  1. [639]
    Ms Kelsey submitted:
  1. 40.Even if ground 1 is not made out, the extract of the Vice President [sic] reasons set out at paragraph 23[586] above shows, at the very least, that his Honour committed the same error in approach. That error is apparent from his Honour's failure to properly deal with (or reference in any meaningful way) the evidence of Crs Power, Koranski, Bradley, McIntosh and Raven (see paragraphs 30 to 33), as well as the matters dealt with further below.

The five non-respondent councillors

  1. [640]
    In her principal submissions,[587] Ms Kelsey submitted that:
  • of the five councillors who supported her continued employment, Cr Power gave oral and affidavit evidence that squarely impugned the bona fides of the reasons given by the Councillors, and the other four councillors were similarly dismissive of the Councillors' performance concerns;
  • Cr Bradley gave cogent evidence:
  1. –of a fundamental change in the attitudes of the Councillors after 12 October 2017;[588]
  2. –that the debate rules introduced by Cr Dalley and her observations leading to the dismissal vote, led her to believe that the vote against her (Ms Kelsey) was pre-orchestrated;[589] and
  • each of the five councillors gave evidence that, for the most part, they were kept entirely in the dark as to why the Councillors chose to dismiss Ms Kelsey.
  1. [641]
    Ms Kelsey also submitted[590] that Cr Raven gave evidence that prior to the vote on 7 February 2018, the Councillors had not specifically raised any performance concerns with him regarding her (Ms Kelsey) and that once the Councillors became aware that only performance grounds could be used to legally terminate her employment, they started looking for performance reasons.[591] Ms Kelsey submitted that such evidence '… aligned entirely with Ms Kelsey's case theory' (Ms Kelsey's alignment claim) but the Vice President paid no attention to that evidence or to Cr Raven's other evidence, Cr Power's evidence was mentioned peripherally and little or no reference was made of the evidence of Cr Koranski, Cr McIntosh and Cr Bradley.[592]
  1. [642]
    In addition, Ms Kelsey submitted that the Vice President paid no regard to the uncontroverted evidence that the performance issues subsequently relied upon by the Councillors were never brought to Ms Kelsey's attention or to the attention of the other councillors, and that the Vice President's reasons did not '… disclose sufficient consideration of the fact that Ms Kelsey did not receive any explanation for the termination at the time of the vote.'[593]
  1. [643]
    In Ms Kelsey's reply submissions, she submitted that the views of the Councillors as to the reasonableness of particular conduct of Ms Kelsey was '…something that the Vice President ought to have considered' along with the '…broader impressions that the other councillors formed as to':
  • how the Councillors' demeanour toward Ms Kelsey changed after she made  '…her PID'; and
  • how the performance concerns the Councillors raised (about Ms Kelsey) in Council meetings '…appeared, from their observations of all the circumstances,  to have been contrived or non-genuine.'[594] 
  1. [644]
    In oral submissions,[595] Ms Kelsey:
  • submitted that the Vice President did not deal with the evidence of Crs Power, Koranski, Raven, McIntosh and Bradley that dealt with their own views of whether performance concerns, said to have motivated the Councillors, were reasonable;
  • referred to the evidence of Cr Bradley that in terms of the vote on 7 February 2018, she '… felt like it was a bit orchestrated … So, to me, it was actually pre‑orchestrated'[596] and ' … for a – quite a significant decision, there's usually at least – at least some sort of discussion, at least some sort of insight into why people are voting a certain way';[597]
  • referred to the evidence of Cr Raven,[598] which, in summary, was that:
  1. –before the vote on 7 February 2018, none of the Councillors had raised concerns about Ms Kelsey's performance with him; and
  2. –once the public interest disclosure had been made by Ms Kelsey, and they had advice that she could only be removed for performance issues, the Councillors started looking for performance issues, such as ARGs, committee seating arrangements and the Relay for Life event.
  1. [645]
    The submission was that that evidence was not dealt with by the Vice President.
  1. [646]
    The Councillors submitted that Ms Kelsey's reliance on TechnologyOne was misplaced because in that case:
  • the decision-maker gave evidence as to his reasons for acting and that those reasons did not include a proscribed reason;
  • the trial judge did not accept that evidence and the error identified by the Full Court was that the trial judge failed to grapple with contemporaneous evidence which was consistent with and corroborated the decision-maker’s evidence, namely, the trial judge failed to deal with evidence which bore directly on a critical issue in the proceeding; and
  • that is not the case in Ms Kelsey's matter in that there is no contemporaneous evidence, other than Cr Smith's  diary note,[599] of the reasons why the Councillors  voted to terminate Ms Kelsey's employment and the only direct evidence concerning that matter was the evidence given by them.[600]
  1. [647]
    The Councillors further submitted:
  • the opinions of the other councillors as to whether the concerns of the Councillors about Ms Kelsey's performance were justified or genuinely held, '…are inadmissible and irrelevant.';
  • Ms Kelsey's submissions completely ignore the evidence of the other councillors that while they were not particularly concerned by various instances of Ms Kelsey's poor performance, a reasonable person could have been so dissatisfied;
  • the submission concerning the alleged lack of discussion between the councillors as to their reasons for terminating Ms Kelsey and the imposition of the debate rules, completely overlook the unchallenged evidence that all of the councillors, including those who voted to retain Ms Kelsey, were repeatedly given legal advice not to discuss their reasons for voting with each other in order to ensure that their reasons were not polluted by any other person’s potentially proscribed reasons;
  • therefore, in those circumstances, it is unsurprising that they did not discuss their reasons for voting to terminate Ms Kelsey and they imposed the debate rules which had the effect of limiting discussion at the meeting; and
  • in terms of the submissions about the alleged uncontroverted evidence of performance issues not being brought to Ms Kelsey's attention:
  1. –at the time in which many of Ms Kelsey's performance issues became apparent, she was in active litigation against the Council, alleging that the raising of performance issues constituted a form of adverse action; and
  2. –the submissions ignore the fact that her lawyers were in active negotiations with the Council's lawyers as to the nature and extent of any probationary review, the matters raised with Ms Kelsey were carefully negotiated on her behalf by her lawyers, and therefore it is disingenuous to suggest that adherence to that protocol indicates some type of hidden proscribed reason on behalf of the Councillors.[601]
  1. [648]
    The Council made similar submissions, including:
  • the enquiry by the Vice President was into the state of mind of the Councillors, not the non-respondent councillors, and the fact the Councillors may not have shared their views regarding Ms Kelsey's performance with the other councillors was of no probative value in determining the state of mind of the Councillors;
  • the Councillors were under no duty to share their views of Ms Kelsey's performance, and the acrimony between the Councillors and the non-respondent councillors was plain on the evidence; and
  • the subjective evidence of Cr Bradley (referred to above in the second dot point of paragraph [640]) was after the date Ms Kelsey used a solicitor to communicate with the Council about her refusing to participate in the probation process which was done in an attempt '… to manoeuvre the First Respondent into a position where all Councillors could not exercise their rights under the probation clause of' Ms Kelsey's employment contract.[602]
  1. [649]
    The Council also relevantly submitted:
  1. 91.As earlier submitted, the question which the Vice President was required to answer was whether any of the Third to Ninth Respondents were actuated by a proscribed reason when they decided to cast their vote as they did in relation to the employment of the Appellant. This question requires an examination of the evidence that bears upon that issue. The evidence of each of those Respondents gave sworn evidence that their individual reasons did not include such a reason.
  2. 92.The Vice President was required to also take into account any other evidence which was relevant to the state of their minds at the point at which they cast their vote. If there was a volume of documentary or other physical or tangible evidence that tended to prove the actual state of mind on that subject was other than the one to which they had deposed in the proceedings, the Vice President would have been required to consider that evidence and, if it is sufficient to overcome the statements as to motivation made by the Third to Ninth Respondents in the proceedings, to decide accordingly and reject their evidence. 
  3. 93.In answering the central question in these proceedings, the Vice President was not required to act upon the evidence of the oppositional Councillors, for the simple reason that none of those witnesses could contribute any probative evidence on that subject.
  4. 94.The evidence of the oppositional Councillors quoted in the Appellant’s Submissions says nothing whatsoever about the state of mind of any of the Third to Ninth Respondents in relation to the reasons which actuated them when casting their vote. As earlier submitted, that evidence was entirely irrelevant to the question to be decided. Furthermore, the failure to mention that evidence in the significant way claimed by the Appellant could not undermine the integrity of the decision of the Vice President. On a counterfactual analysis, if that evidence had been examined and assessed in detail, it could not have proved anything of any substance about whether the Third to Ninth Respondents had put questions of the PID out of their mind for the purposes of making a decision to vote for the termination of the Appellant.
  1. [650]
    Ms Kelsey's criticism is that the Vice President '…committed the same error in approach'[603] as the trial judge in TechnologyOne by not considering:
  • the evidence of the non-respondent councillors about their own views of the aspects of her work performance impugned by the Councillors;
  • the evidence of Cr Bradley about the change in attitude of the Councillors after 12 October 2017 and about how the vote was taken;
  • the evidence of Cr Raven that once the Councillors became aware that only performance grounds could be used to dismiss her, they started looking for performance issues;
  • the evidence that the Councillors never brought to the attention of the                        non-respondent councillors, prior to the vote, the performance issues they relied upon to dismiss her;
  • the evidence that the non-respondent councillors were not told by the Councillors why they chose to dismiss her; and
  • the evidence that the relevant performance issues were never brought to her attention prior to the vote and that she was not told of the reasons for her dismissal at the time of the vote. 
  1. [651]
    I cannot accept Ms Kelsey's submissions.

The decision in TechnologyOne

  1. [652]
    In TechnologyOne, the summary of the relevant grounds of appeal was that:
  1. (2)
    the learned primary judge did not answer the essential question – whether the appellants had established that the adverse action was not taken for a reason proscribed by the FW Act, or for reasons which included such a reason – by reference to all the evidence, including by reference to what senior counsel for the appellants described as “a very large amount of probative material, which would have been corroborative of what Mr Di Marco said …” (grounds 3, 4 and 5).[604]
  1. [653]
    The Court stated:

Courts must have regard to the whole of the evidence

  1. [104]
    The onus on the appellants of proving that none of the seven complaints alleged was a substantial and operative factor in terminating Mr Roohizadegan’s employment was “to be discharged on the balance of probabilities in the light of all the established evidence”. See Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445 at [62] (French CJ and Crennan J).
  2. [105]
    And as Bromberg J said in the context of an adverse action case in Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 at [116] (Mortimer and Anastassiou JJ agreeing):

True it is that the disbelief of the decision-maker as to the reason given for the taking of adverse action will ordinarily be a weighty consideration and often a determinative consideration as to whether a reason asserted by an applicant is a substantial and operative reason for adverse action. However, neither that observation nor the s 361 statutory presumption itself, relieves a court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence. Whilst the statutory presumption casts an onus on the respondent to satisfy the court on the evidence before it that the asserted reason has been negated, it does not require that finding to be based solely on the evidence of the decision-maker or to be based solely on the evidence called or otherwise put before the court by a respondent.

  1. [106]
    And, as Bromberg J also said at [113], in a case where there is “evidence of a broad range of facts and circumstances, beyond the reliability of [the employer’s] evidence about [their] asserted reason for the dismissal” such facts and circumstances need “to be taken into account in assessing whether the … complaint[s] [were] a substantial and operative reason for the dismissal”.
  1. [654]
    In paragraphs [132]-[166], their Honours dealt with the relevant documentary evidence and then held:
  1. [169]
    In this case, it seems to us, that the evidence set out above at [132]-[166] was capable of corroborating each of Mr Di Marco’s stated reasons for terminating Mr Roohizadegan’s employment because, on its face, the evidence confirms, supports or strengthens Mr Di Marco’s evidence of his reasons for terminating Mr Roohizadegan’s employment, in the sense that it renders, or is capable of rendering, that evidence more probable.
  1. [655]
    The Court concluded that the trial judge did not answer the essential question, namely, whether the appellants had established that the adverse action was not taken for a reason proscribed by the Fair Work Act 2009, or for reasons which included such a reason, by reference to all the evidence.[605] The reason the Court in TechnologyOne, [as set out in [128] of that judgment] allowed the appeal was the fact that the trial judge failed to have any regard or any sufficient regard '… to a volume of contemporaneous documentation that on its face was consistent with Mr Di Marco's explanation of the true reasons for the termination of Mr Roohizadegan's employment.' 

The evidence of the non-respondent councillors about their own views of the aspects of Ms Kelsey's work performance impugned by the Councillors

  1. [656]
    The submissions criticising the Vice President for not dealing with the evidence of Crs Power, Koranski, Raven, McIntosh and Bradley, about their own views of the performance concerns said to have motivated the Councillors, cannot be accepted for a number of reasons.
  1. [657]
    First,  I was not taken to a specific proposed ground of appeal which alleges that the Vice President erred in fact in failing to have regard to this particular evidence. Proposed ground of appeal 1 was about an error of law and not an error of fact. None of the sub-paragraphs (a) to (f) in proposed ground of appeal 14 allege that the Vice President erred in fact by failing to have regard to this evidence.
  1. [658]
    Secondly, in any event, Ms Kelsey's submissions cannot be accepted for three reasons.
  1. [659]
    One, the evidence of the non-respondent councillors, referred to by Ms Kelsey, was, in the main, referred to very generally.
  1. [660]
    Two, it assumes such evidence was of the same high probative nature as in TechnologyOne and in the other case referred to by Ms Kelsey, Cummins South Pacific Pty Ltd v Keenan ('Cummins'),[606] a case relevantly concerning the Fair Work Act 2009. 
  1. [661]
    In her reply submissions,[607] Ms Kelsey referred to the decision of Bromberg J at [116] in Cummins[608] which referred to the facts that neither the disbelief of the decision maker, nor the statutory presumption (the equivalent being s 306 in the IR Act), relieve a court of the need to make all necessary inquiries and consider all the evidence '…probative of whether the reason asserted has been negated by that evidence.'
  1. [662]
    In that case, at first instance, the trial judge found that the statutory presumption had not been rebutted because the trial judge rejected the evidence of the decision maker that performance was the reason for the employee's dismissal.[609] In fact, the trial judge, having come to that conclusion, then stopped further considering why adverse action had been taken against the employee.[610] In paragraphs [113]-[115], Bromberg J referred to the evidence before the trial judge that was said to be probative, beyond the credibility of the decision maker, of the reasons for the adverse action taken, namely:
  • the nature of the employee's first complaint, that he was having issues with a particular work colleague, the timing of that first complaint and the circumstances in which it was made;
  • the subsequent acts of complaining, the content of those complaints and the timing of the successive complaints;
  • a toxic relationship between the employee and the particular work colleague, for which, in the decision maker's mind, the dismissed employee bore responsibility; and
  • that the decision maker personally disliked and was hostile to the dismissed employee.
  1. [663]
    In paragraph [115] Bromberg J relevantly held:

The inquiry that had to be made but which was not made, was whether in those circumstances a complaint made 16 months prior to the dismissal was a substantial and operative reason for it? Each of those circumstances was capable of wholly explaining Mr Keenan’s dismissal and  negating any other reason, including the making of each of the complaints, as a reason for the dismissal. Those circumstances had to be considered and considered not just in relation to the first complaint asserted by Mr Keenan as a reason for the dismissal but in relation to each complaint put forward for that adverse action and for each of the six adverse actions held to have been taken against Mr Keenan.

  1. [664]
    At paragraph [96] of the Primary decision, the Vice President did state that the views of the five-non respondent councillors were that Ms Kelsey's performance was positive. However, it is difficult to see how the views of the other councillors about the reasonableness or otherwise of the reasons given by the Councillors about Ms Kelsey's performance could be determinative of the Vice President's assessment of the genuineness of the evidence given by each Councillor for their vote. As Heydon J stated in Barclay:

Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.[611]

  1. [665]
    The views of the non-respondent councillors about the aspects of Ms Kelsey's performance, as impugned by the Councillors, was not evidence of the same probative value as referred to in TechnologyOne or as referred to by Bromberg J in Cummins. It is unsurprising that the Vice President did not give greater regard to their views. As the Council submitted,[612] on a counterfactual analysis, if that evidence had been examined and assessed in detail, it could not have proved anything of any substance about whether the Councillors had put questions of the PID (and the commencement of the QIRC proceedings) out of their mind for the purposes of making a decision to vote about Ms Kelsey's employment. The Councillors' and the Council's submissions about this issue raised by Ms Kelsey are, in my view, correct.
  1. [666]
    Indeed, for the reasons I have given, the evidence pointed to by Ms Kelsey is not of the same nature as was the evidence in the appeal in Kodak.[613]
  1. [667]
    In that case, the appellants submitted that the trial judge fell into error in not considering the evidence called on their behalf when making the findings about what motivated the decision makers of Kodak. The issue was whether the employee concerned, (Mr Elliott) was unlawfully dismissed because he was a union delegate. Kodak's case was that Mr Elliot was lawfully dismissed by way of a ranking system used to determine retrenchment. The Full Court stated that the error made by the trial judge was similar to the error made in Earthline.[614] In essence, the Full Court found that the trial judge made the same error as in Cummins in that, having accepted the evidence called by Kodak as the reasons for Mr Elliott's retrenchment, the trial judge did not then go on to consider the evidence called by Mr Elliott.[615] oeHowever, that evidence was the evidence of Mr Elliot himself and others that he did not engage in the conduct for which he was assessed as having a low ranking (that resulted in him being selected for retrenchment) and about his activities in representing union members on industrial issues.[616]
  1. [668]
    The evidence broadly pointed to by Ms Kelsey is the opinions of the non-respondent councillors about Ms Kelsey's performance as chief executive officer. It is difficult to see how the failure to consider that evidence could logically bear in the assessment of the state of minds of the Councillors. Even if there was a proposed ground of appeal referrable to this complaint, the evidence of the non-respondent councillors, about their views of the reasonableness of the Councillors' assessment of Ms Kelsey's performance, was not evidence inconsistent with their explanation of the true reasons for the termination of Ms Kelsey.
  1. [669]
    Three, Ms Kelsey does not submit why the failure to deal with that evidence of the non‑respondent councillors, in the way she contends, means the conclusions of the Vice President, about what actuated the Councillors, are glaringly improbable or contrary to compelling inferences. Ms Kelsey does not submit why the failure to deal with that evidence of the non‑respondent councillors, in the way she contends, means that the Vice President failed to answer the essential question in the matter. Due allowance must be given to the significant advantage available to the Vice President. Further, the method of decision making by the Vice President about the Councillors' evidence was conventional. The Vice President comprehensively answered the essential question by reference to the probative evidence.

Councillor Bradley's evidence of a change in attitude of the Councillors after 12 October 2017 and her evidence about the vote

  1. [670]
    It was the case that the Vice President did, albeit in a limited way, refer to the evidence about a change in attitude of the Councillors.[617] His Honour made an assessment of that evidence in respect of his conclusion about the veracity of the Councillors' reasons.
  1. [671]
    Under the heading 'Impact of the Council Complaint and the CCC Referral':
  • at paragraph [158], the Vice President stated that Cr Power and the other four non-respondent councillors observed that the Mayor's conduct toward Ms Kelsey changed;
  • at paragraph [160], the Vice President stated that Mayor Smith and the Councillors were said to have taken a coordinated approach in matters relating to Ms Kelsey, and other Councillors, including Mayor Smith and Crs Dalley and Schwarz, were said to have expressed views that Ms Kelsey not receive delegated responsibility for reports that she would usually hold as a matter of standard practice; and
  • at paragraphs [161] and [162], the Vice President referred to evidence from Cr Schwarz' second affidavit,[618] being transcriptions of audio tapes of certain councillor meetings held to discuss Ms Kelsey's employment and, in doing so, referred to comments made in such meetings by Mayor Smith and by Cr Dalley to the effect that their views of Ms Kelsey had changed since she made the Council Complaint and the CCC Referral.
  1. [672]
    As set out in the last sentence in paragraph [803] and in paragraph [804] of the Primary Decision, the Vice President was well aware of the issues raised by Ms Kelsey about whether the evidence established if the stated reasons of the Councillors were genuine. In respect of the change in attitude of the Councillors after the PID was lodged, in paragraph [806], the Vice President stated:
  1. [806]
    The fact that some of the Third to Ninth Respondents have been critical of Ms Kelsey's performance or demonstrated animosity towards her does not suggest that a conclusion can be reached that it was as a consequence of her lodging a PID or commencing the proceedings in the Commission.  Likewise, to the extent to which some of the Respondents described the Applicant as litigious or were critical of her affidavits, does not mean they were motivated by a proscribed reason in terminating her employment.
  1. [673]
    Clearly, the Vice President's earlier favourable assessment of the Councillors was critical in coming to that conclusion. In any event, the Vice President, in answering the essential question in the case, did take into account that some of the Councillors demonstrated animosity toward her. Further, as the Council submitted, Ms Kelsey's submission about the subjective evidence of Cr Bradley about a change in attitude after 12 October 2017 does not deal with the fact that, on that date, Ms Kelsey's former lawyers (as part of the Council Complaint) wrote to the Councillors about her requirements for how her (on foot) probation process was to be managed and that she would not further participate in the process until her matters were addressed.[619]
  1. [674]
    I have earlier addressed Ms Kelsey's complaint about the debate rules and the vote, and the Vice President's assessment of Cr Dalley's evidence about the vote. The Vice President expressly dealt with the attack on Cr Dalley's evidence about the vote and rejected that attack. In light of the evidence referred to by the Vice President and his Honour's finding, I cannot accept that the failure of the Vice President to refer to Cr Bradley's evidence that she '…felt it was all pre-orchestrated'[620] means his Honour's decision about those matters was glaringly improbable or contrary to compelling inferences. Councillor Bradley's evidence could not be relevantly described as incontrovertible. The failure to refer to Cr Bradley's evidence does not mean the Vice President failed to answer the critical issue about the attack on the credit of Cr Dalley.

The evidence of Cr Raven that once the Councillors became aware that only performance grounds could be used to dismiss Ms Kelsey, they started looking for performance issues

  1. [675]
    Ms Kelsey submitted:

Again, your Honour, the point there is, if there was evidence that Councillor Raven saw them blow matters out of proportion. He thought that things that wouldn’t have been a big deal prior to the PID suddenly became a big deal. All of those matters were capable of informing and being probative to whether they were acting for genuine reasons and whether their reasons were fair, whether their reasons were reasonable and the like. And again that’s something that his Honour excluded from his consideration based on 803. But also it just wasn’t dealt with at all in the evidence, that evidence from Councillor Raven.[621]

  1. [676]
    Ms Kelsey submitted that Cr Raven's evidence went to the issue she raised earlier about the Vice President not having regard to the evidence about a change in attitude by the Councillors toward her.[622] I reject the submission for the same reasons given under the previous sub-heading. Further, I cannot accept that, in light of the comprehensive and conventional assessment by the Vice President of each of the Councillors' reasons for their vote, and his Honour's assessment of Ms Kelsey's alignment claim, that the observation of Cr Raven is evidence of such a probative nature that the Primary Decision is vitiated or that it may be concluded that the Vice President did not answer the essential question by reference to all probative evidence.

The evidence that the Councillors never brought to the attention of the non-respondent councillors, prior to the vote, the performance issues they relied upon to dismiss Ms Kelsey and that Ms Kelsey was not told of the reasons for her dismissal at the time of the vote

  1. [677]
    As the Councillors submit, the evidence was that at the time many of Ms Kelsey's performance issues became apparent, she was in active litigation against the Council and that her former lawyers were in active negotiation with the lawyers for the Council about her probationary review. In light of that evidence, it is unsurprising that the Vice President did not refer to that issue. I accept the Councillors' submissions that it is disingenuous to suggest that the Councillors' adherence to what was negotiated permits the inference to be drawn that the Councillors acted for a proscribed reason. The failure to refer to this evidence, in those circumstances, does not persuade me that the Vice President did not answer the essential question by reference to all probative evidence.
  1. [678]
    The submission that the Vice President's reasons did not '… disclose sufficient consideration of the fact that Ms Kelsey did not receive any explanation for the termination at the time of the vote', is rejected for a similar reason. In addition to the proceedings before the Commission and the legal correspondence leading up to the vote, another relevant circumstance is that the Council's lawyers received correspondence[623] from Ms Kelsey's former lawyers the day before the vote (referred to in paragraph [776] of the Primary Decision), threatening legal action against them as individuals if they voted against Ms Kelsey. In all these circumstances, it is unremarkable that the Councillors did not give her reasons. For that reason it is unsurprising that the Vice President did not refer to that fact. The failure to refer to the fact Ms Kelsey was not given reasons at the time of the vote, in the circumstances that existed at that time, does not persuade me that the Vice President did not answer the essential question by reference to all probative evidence.

The evidence that the non-respondent councillors were not told by the Councillors why they chose to dismiss Ms Kelsey

  1. [679]
    I was not taken to a specific proposed ground of appeal which alleges that the Vice President erred in fact in failing to have regard to this particular evidence. No such proposed ground is apparent from the application to amend.
  1. [680]
    In any event, this submission ignores the evidence that all councillors received legal advice not to discuss the reasons for their vote. In light of those circumstances, it is unsurprising that the Councillors did not have such discussions and that the Vice President did not see that fact as probative.

The evidence that the relevant performance issues were never brought to Ms Kelsey's attention prior to the vote

  1. [681]
    I do not accept the submissions made by Ms Kelsey about the Vice President paying no regard to the evidence that the performance issues, subsequently relied upon by the Councillors, were never brought to Ms Kelsey's attention. The Vice President's reasons disclose that his Honour considered that issue.
  1. [682]
    At paragraph [822] of the Primary Decision, the Vice President answered Ms Kelsey's question, about what changed after the probation interview (on 10 October 2017), by referring to '…the fact' of the commencement of the probation process. The Vice President then stated that the wider review, involving the Hunter process, gave those involved, including the Councillors, the opportunity to reflect on Ms Kelsey's performance and determine whether her employment ought to be extended beyond the probationary period. These reasons concern the time from which the Councillors began to focus on Ms Kelsey's performance in respect of whether she would be retained at the conclusion of her probation. As the Council submitted,[624] this was probably the first time they had to do so. These reasons by the Vice President explain why no such discussions had previously occurred with Ms Kelsey.
  1. [683]
    In all those circumstances, to the extent the Councillors did not discuss their performance concerns with Ms Kelsey, that evidence cannot, in any determinative way, cast doubt on the genuineness of the Councillors' reasons as found by the Vice President. The failure to refer to this evidence does not persuade me that the Vice President did not answer the essential question by reference to all probative evidence.

Conclusion

  1. [684]
    None of the issues about the evidence referred to by Ms Kelsey is of the nature by which I can conclude that the Vice President failed to answer the essential question, namely,  whether the respondents had established that the adverse action was not taken for proscribed reasons, by failing to have any regard, or any sufficient regard, to that evidence.
  1. [685]
    I accept the submission of the Council that the failure to mention this evidence, in the significant way as claimed by Ms Kelsey, cannot undermine the integrity of the decision of the Vice President. For the reasons given earlier, the Vice President's assessment, in accepting the reasons of the Councillors as genuine, considered their sworn evidence, their evidence given in cross-examination and the reasons advanced by Ms Kelsey as to why their evidence should have been rejected.
  1. [686]
    Furthermore, for my reasons given earlier when dealing with Ms Kelsey's complaints under the fourth sub-heading of part D of her principal submissions – that there were alleged errors of fact in the Vice President's assessment of the evidence of Crs Dalley, Breene, Lutton, Swenson and Pidgeon – his Honour assessed those Councillors' evidence in the conventional manner by considering if their disputed evidence was consistent with incontrovertible facts, undisputed facts and other objectively established evidence.
  1. [687]
    For all these reasons, I do not accept Ms Kelsey's submissions.

The Hunter report

  1. [688]
    In oral submissions, Ms Kelsey submitted that the Hunter report was important evidence because:
  • by reference to a letter from the Council's solicitors to her (former) solicitors dated 20 October 2017,[625] the Council proposed that a new probationary process be undertaken by Ms Hunter which the Council understood '… would be factored into the final decision' about whether to extend her probation or dismiss her;[626]
  • by reference to a further letter from the Council's solicitors to her (former) solicitors dated 6 November 2017,[627] the Council proposed to extend the probation period until the completion of the Hunter report;[628] and
  • by reference to the draft of the Hunter report as opposed to the final version, there was a split between councillors who were '…lukewarm toward her' and others who were very supportive and that the relevant employees, the Executive Leadership Team ('ELT'), were overwhelmingly positive and endorsed her.[629]
  1. [689]
    In her principal submissions, Ms Kelsey submitted that the findings of the Hunter report were critical in scrutinising the reasons proffered by the Councillors and that '… the Vice President did not undertake any real assessment of the Hunter Report.'[630] In oral submissions, Ms Kelsey submitted that the Vice President:
  • only noticed that the Hunter report existed, but his Honour did not scrutinize it for reasons why the Councillors had disregarded the favourable views of Ms Kelsey, particularly by members of ELT, expressed in it;[631]  and
  • did not explain how his Honour reconciled the favourable comments about Ms Kelsey, made by other councillors and the ELT in the Hunter report, with the views of the Councillors about Ms Kelsey, in assessing the genuineness of the reasons of the Councillors.[632]
  1. [690]
    The Councillors submitted that Ms Kelsey's submissions fundamentally misunderstand the evidence in that:
  • the Hunter review, which was part of the agreed probationary process, was not an objective assessment of her performance;
  • the Hunter Review was a survey of various groups within the Council;
  • employees who Ms Kelsey managed were surveyed, as well as councillors; and
  • far from reflecting an objective assessment of her performance, the Hunter Review simply collates the opinions of others and therefore, it is unsurprising that the Vice President spent little time analysing the Hunter report because it was a distraction.[633]
  1. [691]
    The Council submitted:
  1. 80.It is submitted that the Hunter Report was a very obvious red herring in these proceedings. It was agreed to as a compromise to the attempts by the Appellant to seize control of her own probation process through legal correspondence. In itself, this document was little more than a survey of the views of a range of interested persons connected with the First Respondent, most of whom had no responsibility of any kind to determine the question of the ongoing employment of the CEO. The only persons or entity with the capacity to make a decision as to whether the Appellant would remain as the CEO of the First Respondent were each of the Councillors voting in a meeting of the First Respondent.  The views of all other persons interviewed in the Hunter Report process are, and were, legally irrelevant. It is little wonder that His Honour paid little attention to that document.
  1. [692]
    Ms Kelsey's submission that the Vice President only '…took notice that [the Hunter report] existed'[634] is a mischaracterisation of his Honour's reasons. Similarly, Ms Kelsey's oral submission that the Vice President did not assess whether the Councillors' decisions to vote to terminate Ms Kelsey's employment was a fair, reasonable or rational step in light of the Hunter report[635] is a mischaracterisation.
  1. [693]
    While not the only references to the Hunter report, the Vice President relevantly referred to it in the following contexts:
  • in paragraph [97] when giving an overview of Ms Kelsey's evidence in terms of the feedback given by Council staff to Ms Hunter about being impressed by Ms Kelsey;
  • in paragraph [133] about Ms Kelsey's submission that the statements made in the probation conversation report were not consistent and were contradicted by the Hunter report;
  • in paragraphs [163]-[171] about how the Hunter report came about, namely, a new probationary process facilitated by Ms Hunter to replace the original probationary process; including, at [165], Ms Kelsey's assertions that Mayor Smith acted in a number of ways that negatively impacted the processes followed in relation to her and her probation including his negative comments about the report; and further including, at [168], Cr Power's view that the draft of the Hunter report supported his view that Ms Kelsey's employment should be confirmed because it '… reflected the positive feedback he had received from Council employees';
  • in paragraphs [392]-[393] regarding Cr Dalley's evidence concerning the negative views she expressed to Ms Hunter about aspects of Ms Kelsey's conduct and performance, including that:
  1. –when reviewing the Hunter report, Cr Dalley did not consider that it accurately reflected her views or concerns;
  2. –Cr Dalley considered it appeared to be a barometer of the overall views of the staff, more so than the councillors; and
  3. –as a result, Cr Dalley did not place significant weight on the Hunter report;
  • in paragraphs [479]-[483], [496], [504] and [507] when dealing with Cr Smith's involvement in the Hunter process, including:
  1. –at [496], his evidence that Ms Hunter had judged that Ms Kelsey was doing a competent job;
  2. –but then at [479], [504] and [507], his negative views of Ms Kelsey's strategic and financial management capabilities that were reflected in his comments to Ms Hunter;
  • in paragraphs [516]-[518] when dealing with Cr Pidgeon's negative comments to Ms Hunter about Ms Kelsey's conduct and performance including that:
  1. –Ms Kelsey had yet to show any strategic vision for the Council;
  2. –councillors felt Ms Kelsey was trying to control or selectively provide the information they received;
  3. –Ms Kelsey needed to appear apolitical; and
  4. –when he received the Hunter report, it did not reflect his views of Ms Kelsey's performance and did not articulate the areas where he wanted to see improvement in Ms Kelsey;
  • in paragraphs [552]-[554] when dealing with Cr Swenson's positive and negative comments to Ms Hunter about Ms Kelsey's conduct and performance, with the latter concerning her controlling information and the perception she had aligned herself with the minority councillors;
  • in paragraph [593] when dealing with Cr Lutton's concerns raised during the Hunter interview about Ms Kelsey's unilateral direction to staff about addressing councillors;
  • in paragraph [668] when dealing with Cr Schwarz's evidence, that when she read the Hunter report she did not think it correctly reflected her views and that she did not consider the Hunter report to be a conclusive document upon which she was obligated to rely; and
  • in paragraphs [702]-[704] when dealing with Cr Breene's evidence:
  1. –that she advised Ms Hunter she was concerned Ms Kelsey was funnelling all information through her office and providing her (Ms Kelsey) with an opportunity to control information received by the councillors;
  2. –that none of her comments were incorporated into the Hunter report; and
  3. –that her (Cr Breene's) view was that the Hunter report was '… somewhat two-toned' in that Council staff and officers believed Ms Kelsey was doing a good job but the councillors raised a number of significant concerns and, for that reason, she found it difficult to give much weight to the Hunter report.
  1. [694]
    At paragraph [822] as part of his Honour's conclusion, the Vice President stated:
  1. [822]
    Throughout these proceedings the question was asked by the Applicant:  What changed after the probation interview?  The answer is in reality a straightforward one.  What changed was the fact that a probationary process was commenced.  Initially, that process involved only the Mayor, Deputy Mayor and City Treasurer.  The wider review involving the Hunter process gave those involved, in particular, the Third to the Ninth Respondents, the opportunity to reflect on Ms Kelsey's performance and to determine whether her employment ought to be extended beyond the probationary period.  Ultimately, the Third to Ninth Respondents chose not to do so. Importantly, as I have determined elsewhere, they did not do so for a proscribed reason.
  1. [695]
    Proposed ground of appeal 14(f) contends that the Vice President failed to have regard to the Hunter report '…in assessing the reasons of each of the third to ninth respondents for the termination of the applicant's employment'  because, read as a whole, it supported the confirmation of Ms Kelsey's employment.
  2. [696]
    I cannot accept the submissions Ms Kelsey makes about the Hunter report for three reasons.
  3. [697]
    First, I have read the final Hunter report that is contained in the ARB. The description by the Councillors and the Council of it collating the opinions of others and surveying their views (namely senior employees and councillors) is an accurate one. Ms Hunter interviewed Mayor Smith, all councillors, the senior officers who made up the ELT and certain nominated managers. The Hunter report, in the main, consists of a collation of summaries of their responses given about Ms Kelsey's leadership, strategy and delivery. 
  1. [698]
    Secondly, as referred to earlier, the inquiry being undertaken by the Vice President was an assessment of the evidence given by the Councillors for their reasons to vote to terminate Ms Kelsey's employment. In respect of six of the Councillors, the Vice President dealt with their views, as they then expressed to Ms Hunter, about Ms Kelsey's conduct and her performance. Further, as set out above, the evidence was that a majority of the Councillors did not believe that the Hunter report reflected the views they gave to Ms Hunter about Ms Kelsey's conduct and performance. For these reasons, I reject Ms Kelsey's submission that the Vice President did not scrutinize the reasons why the Councillors disregarded the favourable views of Ms Kelsey (the majority of which came from employees), expressed in that report. Many of the Councillors felt the report did not reflect their views. The Vice President referred to that evidence when dealing with the individual evidence of the majority of the Councillors.
  1. [699]
    To the extent it was suggested the reasons were inadequate, the Vice President did not need to undertake a detailed comparison of all the favourable views of Ms Kelsey, as expressed to Ms Hunter, as against the views of the Councillors. Indeed, it was obvious that the issues of concern held by the Councillors – about her performance, particularly as being partisan and disrespectful of them in terms of the supply of information[636] – would be expected to be different to the considerations raised by senior staff in such a review. The councillors were the democratically elected members of the Council charged with making a decision about Ms Kelsey's probation. The senior employees did not have that responsibility. The probative value of the Hunter report was raised by Ms Kelsey and the Vice President gave his reasons about it by having regard to the evidence given by most of the Councillors about the role that report had in their reasons to vote to dismiss Ms Kelsey. The Vice President accepted their evidence in concluding that their reasons to dismiss Ms Kelsey were genuine. For these reasons, the Vice President gave reasons which adequately explained his conclusions about the report.
  1. [700]
    Thirdly, in oral submissions,[637] Ms Kelsey took me to the draft of the Hunter report, in particular:
  • at ARB, page 645, that in respect of leadership:
  1. –some councillors had seen little evidence of Ms Kelsey's ability to promote vision while others spoke more favourably; and
  2. –nearly all Council officers spoke of Ms Kelsey's commitment to vision and direction; and
  • at ARB, page 648:
  1. –that some councillors raised concerns about work being led by Ms Kelsey about committee structures, that there was a level of mistrust (about Ms Kelsey) concerning ARGs and whether legal advice had been sought about them, but that Council staff were aware of the concerns and they had been revised for consideration by Council; and
  2. –that there was a level of mistrust of Ms Kelsey about changes to councillor updates where some councillors thought the changes unnecessarily filtered information; and
  • at ARB, pages 659-663, Ms Kelsey's ratings (by Ms Hunter) in respect of the various categories, (where 5 was 'excellent', 4 was 'very good', 3 was 'good', 2 was 'fair' and 1 was 'unsatisfactory') were that:
  1. –there were no 'excellent' ratings;
  2. –five ratings were 'very good';
  3. –21 ratings were 'good'; and
  4. –one rating was 'fair'.
  1. [701]
    Part 2 of the Probation Conversation Report included in the final Hunter report was an assessment of Ms Kelsey against 'Position Specific Key Responsibilities' and, of the eight such responsibilities listed:
  • the two in which Ms Kelsey was rated at 4 (very good) namely, providing strategic and transformational leadership and proactively leading and demonstrating the values and culture of Council, were, having regard to the 'Comments' section, derived predominantly from feedback by the senior employees interviewed; and
  • five were rated at 3 (good); and
  • one was fair.
  1. [702]
    In respect of the fair rating, the final report read:[638]
  1. 7.Monitor, report to and engage the Mayor and Councillors in strategic conversations relating to Council's current corporate and strategic objectives and priorities, and operational service delivery performance outcomes. This also includes the strategies and plans being implemented to position Logan for current and future opportunities to deliver social and economic benefits to the City of Logan and its residents.
  1. 2

The CEO has taken responsibility for quarterly operational reporting to Council. She has right of audience in and/or a right of attendance in various council fora. A number of committee chairs expressed a desire to see the CEO play a more active role in Committee meetings.

There was mixed feedback about the CEO's ability to engage with the Mayor and Councillors in strategic conversations. Councillors and Council staff emphasised the importance of the strategic relationship between the Mayor and the CEO.

Interviews revealed that the CEO has limited ability to directly interact in strategic conversations with Council as a whole. The CEO and Council officers have proposed a workshop approach to engage Councillors in strategic discussions. To date this proposal has not gotten traction.

  1. [703]
    Ms Kelsey submitted in respect of this fair rating:

Now, given everything that was going on between Ms Kelsey and the Mayor at the time, it’s really unsurprising that that sort of comment might be made. But again it just reinforces the point that I make that there were things about the Hunter Report that were very good and that should have been referred to. There were things about the Hunter Report that weren’t favourable, but one must remember as I say that the Mayor was involved in the ratings and ultimately the people who voted against her.[639] 

  1. [704]
    I do not accept the submissions by Ms Kelsey. The issues in the Hunter report, referred to above, about leadership and mistrust, and in the assessment against the Position Specific Key Responsibility for which Ms Kelsey received a fair rating, are generally consistent with the evidence given by the Councillors for their reasons to vote to dismiss Ms Kelsey; reasons that were accepted as genuine by the Vice President.
  1. [705]
    Ms Kelsey has not pointed to anything in the Hunter report that was incontrovertible so as to conclude the Vice President's ultimate decision, about what motivated the Councillors to dismiss Ms Kelsey, was wrong in fact. Similarly, Ms Kelsey does not point to anything specific in the Hunter report which demonstrates that the Vice President's assessment about the veracity of the evidence of each of the seven Councillors to vote to dismiss Ms Kelsey was glaringly improbable or contrary to compelling inferences.
  1. [706]
    Accepting Ms Kelsey's submission, that the Hunter report was to be '…factored into' the final decision about Ms Kelsey's probation, I also accept the Council's submission[640] that the Hunter report was not to be a substitute for the councillors' own personal opinions, as elected representatives of the ratepayers, of Ms Kelsey's conduct and performance. I was not taken to any evidence to the contrary. I have read the final Hunter report. Because of its nature, being a summary of the views of councillors and some senior employees, its weight, compared to the weight to be given to the tested evidence of the Councillors, is not determinative. Further, for the reasons given above, to the extent it summarises the views of all the councillors who had the direct responsibility to deal with Ms Kelsey's probation (as opposed to some senior employees) there is nothing that is, or could be said, to be incontrovertible so as to render the Primary Decision wrong in fact or that could be said to give rise to the conclusion the Primary Decision was glaringly improbable or contrary to compelling inferences.
  1. [707]
    The Hunter report was two toned. Most of the support for Ms Kelsey comes from the summarised comments of the senior employees interviewed. Most of the negative summarised comments come from councillors. There are differing views of some aspects of Ms Kelsey's performance as between the summarised comments of the councillors. In terms of the responsibility that all councillors had in dealing with Ms Kelsey's probation, it is not a report that unequivocally favoured Ms Kelsey's performance.
  1. [708]
    None of the issues about the Hunter report raised by Ms Kelsey is of the nature such that I can conclude that the Vice President failed to answer the essential question –  whether the respondents had established that the adverse action was not taken for proscribed reasons – by failing to have any regard, or any sufficient regard, to that evidence.
  1. [709]
    In respect of '…the matters dealt with further below', as referred to by Ms Kelsey in paragraph 40 of her principal submissions, namely, failing to deal with the evidence to which Ms Kelsey refers in parts D.3 and D.4 of her principal submissions, I reject them for the reasons I have given about them in this decision. They are not made out for those reasons.
  1. [710]
    To the extent Ms Kelsey seeks to rely on proposed grounds of appeal that are or may be referrable to these complaints (as raised in the context of the Vice President making the same error in approach as the trial judge in TechnologyOne) they are not made out.
  1. [711]
    Ms Kelsey should not be allowed to amend her application to appeal on such grounds.

Final matters

  1. [712]
    Ms Kelsey also referred[641] to various paragraphs of the decision of Lee J in Transport Workers' Union of Australia v Qantas Airways Ltd.[642] Ms Kelsey's submission was that in that case, it was a '…line ball decision' and that case demonstrates how cautious '… a trier of fact has to be in applying the reverse onus, how cautious they have to be in getting into the weeds on pieces of evidence rather than giving, as his Honour did in respect of the WhatsApp materials in particular, impressionistic assessments of what they said and didn't say.'[643]
  1. [713]
    Ms Kelsey also referred[644] to the judgment of Kirby J in paragraphs [89] and [90] of Earthline[645] about the advantages of a trial judge hearing and seeing the evidence unfold in its entirety and the need for this Court to scrutinise the advantage held by the Vice President.
  1. [714]
    Ms Kelsey submitted[646] that the Vice President could not have determined whether the Council '…overcame the reverse onus' without looking at all the evidence to which she referred the Court, including about the Relay for Life (as referred to in paragraphs [117]-[123] of the Primary Decision) and about the USA Delegation, ARGs, Committee names and structures, Councillor complaints, Budget experience and strategy, the Budget meetings in December 2017 and January 2018 and Committee seating (as referred to in paragraphs [175]-[240] of the Primary Decision).
  1. [715]
    Ms Kelsey's submission about that evidence was that while the Vice President touched upon the evidence she led about why those matters were not objectively reasonable, his Honour '… just doesn't return to those matters' and, in light of what the Vice President stated in paragraph [803], the Court cannot be satisfied that '… his Honour was making a slip or referring to the legal elements rather than positively finding that …  it was not relevant' to take into account the matters to which the Court was taken in respect of proposed ground 1.[647]
  1. [716]
    I cannot accept these submissions for three reasons.
  1. [717]
    First, Ms Kelsey's submissions were made by very general reference to the evidence she submits was not assessed by the Vice President.
  1. [718]
    Secondly, for the reasons I have given earlier in respect of proposed ground of appeal 1, the Vice President, in paragraph [803] of the Primary Decision, correctly concluded that any assessment of the fairness, reasonableness or justification of the Councillors' decisions is not a legal element of the combined effect of s 285(1)(a)(ii) and s 306(2) of the IR Act. Further, his Honour did not determine that the fairness, reasonableness or justification of the Councillors' decisions could not be taken into account in determining whether their reasons were or were not genuine.
  1. [719]
    Thirdly, in these reasons I have analysed and addressed the errors of law and fact Ms Kelsey alleges the Vice President made in sub-headings D.3 and D.4 of her principal submissions.
  1. [720]
    Five errors were in alleged in sub-heading D.3 that went directly to Ms Kelsey's alignment claim which were said to be disclosed by the Vice President's alleged failure to assess the WhatsApp communications, to assess the debate rules and to assess the 'Hallam email exchange.' For the reasons I have given, the Vice President's assessment of that evidence does not disclose any inadequacy of reasoning or errors of fact.
  1. [721]
    In respect of sub-heading D.4, Ms Kelsey submitted the Vice President also erred in his Honour's assessment of the evidence of Cr Dalley, Cr Breene, Cr Lutton, Cr Swenson and Cr Pidgeon as well as in his Honour's assessment of the Councillors' reasons for their vote by reference to the way the PID was sent and by reference to the legal advice they received. For the reasons I have given, the Vice President's assessment of that evidence does not disclose any inadequacy of reasoning or errors of fact. Indeed, as his Honour correctly identified in paragraph [803], his task was to assess whether the Councillors' reasons for their vote was genuine. The Vice President's task was not to make his own objective assessment about the fairness or reasonableness of Ms Kelsey's conduct or performance in respect of the matters referred to in paragraphs [117]-[123] and [175]-[240] of the Primary Decision. Further, the WhatsApp communications, and most of the issues referred to in paragraphs [117]‑[123] and [175]-[240] of the Primary Decision, were referred to by the Vice President in his Honour's consideration and assessment of the evidence given by each of the seven Councillors for their vote.[648] That was in addition to the assessment by the Vice President, under the heading of 'Conclusion', of Ms Kelsey's submission that the WhatsApp communications proved her alignment claim.[649]
  1. [722]
    To the extent Ms Kelsey seeks to rely on proposed grounds of appeal that are or may be tied to these issues, they are not made out. No errors of law or fact are disclosed.
  1. [723]
    Ms Kelsey should not be allowed to amend her application to appeal on any such grounds.

PART SEVEN

Part E of Ms Kelsey's principal submissions, proposed ground of appeal 2: 'ACCESSORIAL LIABILITY (GROUND 2)'

  1. [724]
    By proposed ground of appeal 2, Ms Kelsey contends that the Vice President erred in law in:

[F]inding 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 to 763 of the reasons).

  1. [725]
    In the Primary Decision, the Vice President relevantly stated:
  1. [294]
    It is an essential element of a finding that the Third to Ninth Respondents were involved in the First Respondent's contravening decision, that the Councillors each knew that the others were going to vote in the way they did, and that such a vote would be a contravention as alleged.
  2. [295]
    Section 571(3) of the IR Act addresses under which circumstances a person will be taken to have been involved in a contravention of a civil penalty provision.  Specifically, it states:
  1. (3)
    For this section, a person is involved in a contravention of a civil penalty provision only if the person -
  1. (a)
    has aided, abetted, counselled or procured the contravention; or
  2. (b)
    has induced the contravention, whether by threats promises or otherwise; or
  3. (c)
    has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
  4. (d)
    has conspired with others to effect the contravention.

…

  1. [331]
    Further, insofar as the Applicant relies upon the Third to Ninth Respondents conduct 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 reverse onus does not apply to claims of accessorial liability.

…

  1. [756]
    The First Respondent can be found to have contravened the PID Act if the minds of the Councillors who voted and decided the question of termination are proved to have been actuated by the fact that Ms Kelsey made a PID against the Mayor.

…

  1. [760]
    It is an essential element of a finding that the Third to Ninth Respondents were involved in the First Respondent's contravening decision, that the Councillors each knew that the others were going to vote in the way they did, and that such a vote would be a contravention as alleged.
  2. [761]
    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.
  3. [762]
    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.
  4. [763]
    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.[650]
  1. [726]
    In her principal written submissions, Ms Kelsey submitted:
  • if the relevant threshold for tainting the Council decision is reached, then the Councillor or Councillors whose votes contributed to that threshold being crossed will have at the very least committed an act which makes them directly or indirectly knowingly concerned in, or a party to, the contravention of Council;  and
  • it can be no defence to accessorial liability for those Councillors to claim, if it was held that the Council was a contravener, that they exercised their vote independently of other Councillors because their individual act taken for a proscribed reason was causative of the Council's contravention, they had knowledge of their contribution to the contravention, and their act was linked in purpose with that contravention.[651]
  1. [727]
    However, in her submissions in reply, Ms Kelsey conceded that her principal submissions about this point were in error.[652]  Ms Kelsey, nevertheless, contended that the Vice President's decision is wrong in law because '… that was not the way his Honour reasoned. Rather, as appears from the above extracts [namely, paragraphs [294], [331] and [760]-[761] of the Primary Decision], his Honour' held that:
  • to be an accessory, an individual Councillor must have known how each of the seven persons who voted for dismissal would vote, and that those persons’ motivations were tainted; and
  • they must have known that the vote would amount to a contravention of the IR Act, which is contrary to settled principle.[653]
  1. [728]
    The Councillors submitted that:
  • to establish accessorial liability, it must be established that not only did a councillor know of his or her own proscribed reason, but they knew of the proscribed reasons of sufficient other councillors and that '… they all knew of each other's proscribed reasons';[654] and
  • that Ms Kelsey, in her reply submission, submits that the Vice President's erroneous reasoning was that to be an accessory, an individual respondent must have known how each of the seven persons who voted for dismissal would vote, that those persons’ motivations were tainted, and they must have known that the vote would amount to a contravention of the IR Act.[655]
  1. [729]
    The Councillors then submitted[656] that how Ms Kelsey has portrayed the Vice President's reasoning is wrong and, in that respect, the Councillors refer to paragraphs [756], [760], [761] and [762] of the Primary Decision. After referring to paragraph [762] of the Primary Decision, the Councillors then submitted:

It is crucial, therefore, that the relevant facts here 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 anyone else was going to vote at the meeting - no evidence - and you haven’t been taken to any either, your Honour. If the third to ninth respondents could not have known all the facts, then they could not have been involved in the contravention and, significantly, nor were they asked about this in their evidence when they were cross-examined, even more significantly, nor was it pleaded, and as noted earlier, the WhatsApp transcript reveal no such evidence.[657]

  1. [730]
    I accept the Councillors' submission. At paragraph [762] of the Primary Decision, it is clear that the Vice President did not determine that all of the Councillors had to know how each of them, who voted for dismissal, would vote. Further, the Vice President did not, in any of the paragraphs referred to by Ms Kelsey in her submissions in reply, hold that the Councillors had to know that the essential matters or elements constituted a contravention of the IR Act.
  1. [731]
    As the Councillors also relevantly submit:
  • for Ms Kelsey to have succeeded against the Councillors on accessorial liability, it must be shown that sufficient of them had a proscribed intention and that sufficient of them knew of the proscribed intentions of the others; and
  • that was never pleaded by Ms Kelsey.[658]
  1. [732]
    There is no evidence any of the Councillors knew how any other of them were going to vote in respect of Ms Kelsey. The Councillors were not asked about that in cross-examination. Further, apart from the unattributed 'door' message, the WhatsApp messages reveal no such evidence.
  1. [733]
    No error of law is engaged.  Proposed ground of appeal 2 is not made out.
  1. [734]
    Ms Kelsey should not be allowed to amend her application to appeal on that ground.

PART EIGHT

Part F of Ms Kelsey's principal submissions, proposed ground of appeal 12: 'THE MISAPPLICATION OF BROWNE V DUNN'

  1. [735]
    Proposed ground of appeal 12 is:
  1. 12.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).
  1. [736]
    In her principal written submissions, Ms Kelsey contends that the reasons given by the Vice President in the Primary Decision strongly suggest that his Honour departed from the orthodox application of the rule in Browne v Dunn.[659] This submission is put on the basis that his Honour required '… the putting of issues to witnesses more than was necessary to meet the requirements of the rule' and that his Honour felt bound not to take account of submissions that he believed did not meet the threshold that he had set.[660]
  1. [737]
    Ms Kelsey then submitted that, more importantly, the Vice President's views in respect of the extent to which matters were put to witnesses was at odds with the transcript in that:
  • at paragraphs [299][661] and [763] of the Primary Decision, the Vice President held that none of the Councillors were cross-examined about the state of their knowledge as to how the other individual respondents were going to vote;
  • at paragraphs [332] and [793] of the Primary Decision, the Vice President held that none of the Councillors were cross-examined about any conduct by Mayor Smith that might have had a causative impact on their vote; and
  • at paragraphs [817][662] and [820] of the Primary Decision, the Vice President accepted the criticism made by the Councillors for Ms Kelsey's apparent failure to directly challenge '…some of' them to the effect that their stated reasons for voting against Ms Kelsey were not in fact their true reasons; and
  • the same matter, as referred to in the previous dot point, was noted more forcefully at paragraphs [625] and [691] with regard to Cr Schwarz.[663]
  1. [738]
    Annexure A to Ms Kelsey's principal written submissions was a table which made reference to the trial transcript in respect of which it was submitted that:
  • the suggestion that the Councillors knew how each were going to vote was a matter that was expressly put to them, sometimes repeatedly;
  • although Mayor Smith's influence on the Councillors was put most directly to Cr Dalley, it was a matter that was also put to other witnesses; and
  • the Councillors were extensively challenged as to the true reason that motivated their conduct[664] ('Ms Kelsey's annexure').
  1. [739]
    In her oral submissions, Ms Kelsey referred me to paragraphs [274]-[278] of the final written submissions of the Councillors before the Vice President.[665] In those paragraphs, the Councillors submitted that:
  • Ms Kelsey, in her final written submissions to the Vice President, made various allegations:
  1. –about the Councillors' evidence concerning topics which were not put to them; and
  2. –that various pieces of evidence given by the Councillors comprised false evidence;
  • on many occasions, during the cross examination of the Councillors, it was not suggested to those witnesses they were giving false evidence or not telling the truth;
  • on the authority of Kuhl v Zurich Financial Services Australia Ltd,[666] before a judge should criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim, two conditions must be satisfied; first, reasons must be given for concluding that the truth has been withheld, and secondly, the party-witness must have been given an opportunity to deal with that criticism; and
  • many of the allegations or hypotheses advanced in Ms Kelsey's submissions were not put to witnesses and it was not apparent on the face of the proceedings or the affidavits that such contentions would be made.[667]
  1. [740]
    A related issue raised by the Councillors, in their submissions to the Vice President, concerned Ms Kelsey's failure to directly confront the Councillors about the alleged untruthfulness in their affidavits about the reasons for their vote. In that respect, before the Vice President, the Councillors accepted that the substance of the proceedings was such that the rule in Browne v Dunn did not strictly apply to the evidence given by them about their reasons.[668] This was because the Councillors were aware that their reasons were challenged by Ms Kelsey and that she would assert that their sworn reasons ought not be accepted. However, the Councillors submitted to the Vice President that various Councillors, namely Cr Lutton, Cr Smith and Cr Pidgeon, were not confronted directly in terms that their sworn evidence was not truthful.[669]
  1. [741]
    In this regard, the Councillors referred[670] the Vice President to the decision of the Victorian Court of Appeal in Curwen & Ors v Vanbreck Pty Ltd ('Curwen').[671] It was submitted that the Victorian Court of Appeal[672] explored the effect of the witness not being cross-examined, namely:
  1. [27]
    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. It 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.
  2. [28]
    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.

  1. [29]
    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.[673]
  1. [742]
    The Councillors then submitted to the Vice President:
  1. 278.The applicant's failure to directly confront some of the respondents about their sworn reasons for voting to terminate Ms Kelsey, leaves the Commission in a difficult position. Whilst the applicant is entitled, having regard to the nature of the proceedings, to submit that those reasons should not be accepted, the Commission has not had the benefit of seeing the witnesses' reaction to the contention that their evidence should not be accepted. In those circumstances, the Commission would be, with respect, slow and cautious in accepting the applicant's invitation to reject that evidence as being untruthful.[674]
  1. [743]
    In Ms Kelsey's reply submissions to this Court, she contended:
  • the Vice President referred to many instances where his Honour considered that she failed to cross-examine Councillors on material issues;
  • if, in making those criticisms, his Honour was merely applying Curwen, then it can be accepted that there is no broader misapplication of Browne v Dunn;
  • however, the Court should not be confident that was the Vice President’s approach because, on a fair reading of the Primary Decision and the exceedingly favourable credit findings that his Honour made as to the Councillors, the Vice President appeared to have reasoned in a manner that exceeded the approach in Curwen, in that where a matter was not the subject of cross‑examination, a clearly available inference is that his Honour reasoned that he effectively had to put that matter out of his mind, rather than merely giving it more limited weight; and
  • that inference was available because of the limited utility that extensive cross‑examination would have had when the Councillors routinely and steadfastly denied any knowledge of how their colleagues were going to vote, such that pressing them to answer questions, on what they knew as to why those same colleagues would vote in a certain way, would have been pointless.[675]
  1. [744]
    In her oral submissions to this Court, I was not taken to the particular transcript references referred to in Ms Kelsey's annexure. Ms Kelsey submitted that if the Vice President was applying the principles from Curwen, then her point about the rule in Browne v Dunn falls away.[676]
  1. [745]
    The Councillors submitted to this Court that:
  • Ms Kelsey's submissions fundamentally misapprehends the approach taken by the Vice President and their submissions to the Vice President;
  • the submission made by the Councillors at first instance was not that because of any failure to cross-examine, Ms Kelsey was prevented from putting any particular submissions; what was submitted was that the issue in Curwen was not one with respect to the application of the rule in Browne v Dunn, but that the Court was denied the opportunity to see witnesses be directly and starkly confronted about matters of credit;
  • Ms Kelsey's case at first instance was that the Councillors were consciously lying about the reasons for acting the way they did and '… the fact that they did not take the PID into account'; 
  • the point made by the Councillors was that without those matters being robustly put to them, the Vice President was denied the opportunity of seeing how those witnesses would react to such a proposition, the consequence of which is that '… the Tribunal may ultimately not be persuaded that the witness was not telling the truth'; and
  • having regard to paragraph [818] of the Primary Decision, the Vice President was alive to the distinction made by the Councillors in that his Honour quoted from Curwen and, at no point did the Vice President conclude that Ms Kelsey was not permitted to put certain arguments; it was simply a matter which bore on the Vice President's overall assessment of the credibility of witnesses.[677]
  1. [746]
    In respect of the submissions made by Ms Kelsey that the Councillors were cross‑examined that they knew how the others were going to vote, the Councillors submitted that:
  • not only was it necessary to put to the Councillors that they knew how the others were going to vote, the question was whether the Councillors knew that others were going to vote for a proscribed reason;[678]
  • when regard is had to Ms Kelsey's annexure, Ms Kelsey never put to the Councillors that they knew others were going to vote because Ms Kelsey '… had made a PID';[679] and
  • furthermore, when regard is had to Ms Kelsey's annexure, it was never suggested to any of the Councillors that Mayor Smith asked them to do anything or to refrain from doing anything in respect of Ms Kelsey's employment and it was most certainly never put to any of them that they understood that Mayor Smith was asking them to do something because Ms Kelsey '… had made a PID.[680]
  1. [747]
    By way of conclusion, the Councillors submitted:
  1. 162.In so far as Annexure A identifies passages where witnesses were cross examined about their purported reasons, two things should be noted. Firstly, much of the cross‑examination proceeds from the error identified above. That is, the appellant confused the witnesses' accounts of what occurred and what their reasons for acting were.
  2. 163.Secondly, whilst some witnesses were cross examined about some portions of their reasons and some witnesses were cross examined about their reasons generally, in circumstances where the appellant’s case was not that the witnesses were confused, but that they were lying about their reasons because some "alignment" with the Mayor compelled them to do so, they were never robustly challenged that their reasons were false and that they were not telling the truth. The problem with this approach is not that the appellant was prevented from making any submission as to reasons. It was that Commission was unable to see the witnesses confronted directly which hindered the ability to assess their credibility.[681] 
  1. [748]
    I accept the Councillors' submissions. This is for two reasons.
  1. [749]
    First, as the Councillors submitted, the Vice President referred to the decision in Curwen. In my view, when regard is had to paragraphs [817]-[820] of the Primary Decision, the Vice President was clearly aware of the point being made by the Councillors in their final submissions about what was said in that case.
  1. [750]
    In paragraph [817] of the Primary Decision, the Vice President referred to the criticisms made by the Councillors about Ms Kelsey's failure to directly confront some of the Councillors about their sworn reasons for voting to terminate Ms Kelsey's employment. In paragraph [818], the Vice President referred to paragraphs [27]–[29] of the decision in Curwen. At paragraph [819], the Vice President stated that issues of credit needed to be identified when a witness is being cross-examined and the hearing unfolds, and the failure to do so may leave the tribunal of fact unpersuaded as to the truth of the allegation. At paragraph [820] of the Primary Decision, the Vice President gave some examples of where the failure to cross-examine some of the Councillors left him unpersuaded as to the truth of the allegations made by Ms Kelsey. The Vice President stated:
  1. [820]
    Let me briefly identify some examples.  Cr Swenson’s inability to remember the identities of persons involved in group text messages and who were the authors of particular messages, was a deliberate ploy about matters which he knew the truth of was not put to him.  It was not suggested to Cr Lutton that his reasons for voting to terminate Ms Kelsey as identified in his affidavits, were not his reasons;  Cr Laurie Smith was not cross-examined about the contemporaneous note that he made evidencing his reasons;  equally the assertion that he was overwhelmed by his close political and personal relationship with Mayor Smith was not put to Cr Smith;  and in regard to the evidence of Cr Pidgeon, it was only suggested to him that his reasons were a "construct".
  1. [751]
    In the often cited decision about the rule in Browne v Dunn, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, Hunt J relevantly stated:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.[682]

  1. [752]
    A court has a discretion as to how to deal with non-compliance with the rule in Browne v Dunn, and the aim of the exercise of that discretion is to secure fairness having regard to the circumstances of the case.[683] That may include not allowing the defaulting party to make a submission about a particular subject upon which the opposing party was not cross-examined.[684]
  1. [753]
    As I have set out earlier, Ms Kelsey referred to eight paragraphs of the Primary Decision in respect of which she submits that the Vice President misapplied the rule in Browne v Dunn. I have had regard to those paragraphs.[685] On a plain reading of those paragraphs, none of them concern or deal with a failure by Ms Kelsey to comply with the rule in Browne v Dunn.  Further,  there is nothing in those paragraphs that, in connection with other paragraphs in the Primary Decision,  indicate that his Honour was not taking into account submissions because of any alleged breach of the rule in Browne v Dunn.
  1. [754]
    What is clear is that, having regard to the submissions made to the Vice President by the Councillors about Curwen, and from the eight paragraphs of the Primary Decision to which Ms Kelsey refers, the criticism the Vice President was making of the cross‑examination of the Councillors was not about the application of the rule in Browne v Dunn, but that the cross examination of the Councillors left him unpersuaded as to the submissions ultimately made by Ms Kelsey, namely, that the Councillors voted to terminate her employment for the proscribed reasons she claimed.
  1. [755]
    Secondly, Ms Kelsey's annexure makes reference to the cross-examination of the Councillors in respect of the following headings:
  • 'Regarding knowledge of how others would vote including whether discussions occurred regarding votes, whether requests were made regarding votes etc';
  • 'Regarding alignment';
  • 'Regarding alignment generally';
  • 'Regarding the related issue of individual respondents taking steps within the WhatsApp group to organise a strategy discussion';
  • 'Examples where witness was challenged as to the true reasons for their conduct';
  • 'Regarding the specific conduct of the Mayor as having a causative impact on the vote';
  • 'Regarding alignment and influence of the Mayor on individual respondents'; and
  • 'Regarding general denials that the various reasons put by Cr Lutton were not the true reasons for his actions'.
  1. [756]
    However, Ms Kelsey did not submit that the transcript references in her annexure demonstrate that it was put to the Councillors, in cross-examination, that:
  • they knew that the other Councillors were going to vote to terminate Ms Kelsey's employment because she made a public interest disclosure; or
  • they knew that the other Councillors were going to vote to terminate her employment for a prohibited reason.
  1. [757]
    Similarly, Ms Kelsey did not submit that the transcript references in her annexure demonstrate that it was put, in cross-examination, that Mayor Smith influenced the Councillors' decisions in respect of Ms Kelsey because she had made a public interest disclosure about him.
  1. [758]
    For the reasons I have given earlier, the Vice President's decision about the failure to cross-examine the Councillors was not about a failure to comply with the rule in Browne v Dunn. Rather, the Vice President's decision about the failure to cross‑examine the Councillors, as his Honour describes in paragraphs [332], [763], [793] and [820] of the Primary Decision, concerned his ability to determine the credit of the Councillors on a matter central to Ms Kelsey's case.
  1. [759]
    Ms Kelsey also referred to paragraphs [625] and [691] which concern Cr Schwarz. In respect of Cr Schwarz, the Vice President relevantly decided:[686]
  1. [624]
    Cr Schwarz's reasons for voting to terminate Ms Kelsey's employment are set out at her affidavit of 11 April 2018. Those reasons are:
  1. a.Ms Kelsey had limited the communication between Council staff and the councillors;
  2. b.Ms Kelsey had required Council staff to refer to councillors by their formal title which impeded a close and harmonious working relationship;
  3. c.Ms Kelsey had aligned herself publicly by participating in the Relay for Life in costume with Cr Power;
  4. d.Ms Kelsey had been unable to assist Cr Schwarz in respect of the issue that arose about the Cedar Grove Waste treatment plant;
  5. e.Ms Kelsey insisted of having all information flow through the CEO which filtered the information received by Councillors;
  6. f.Ms Kelsey disregarded the views of the Councillors in respect of the re‑organisation of Council committees;
  7. g.Ms Kelsey disregarded the views of the Councillors in respect of the seating at committee meetings and adopted an approach which was likely to hinder the effective conduct of the meetings;
  8. h.Ms Kelsey's conduct in relation to the Acceptable Request Guidelines, which Cr Schwarz viewed as a dereliction by Ms Kelsey of her duty to fully investigate required legislative changes before recommending those matters to Councillors;
  9. i.Ms Kelsey's continued failure to adequately and promptly respond to requests for information and assistance, including, but not limited to, request about:
  1. i.the Alma Park Zoo;
  2. ii.Cr McIntosh;
  3. iii.the Strategic Directions Presentation; and
  4. iv.the CBF Allowance.
  1. j.Ms Kelsey's poor management of Councillor complaints and in particular her apparent inability to deal with such matters privately and sensitively; and
  2. k.Cr Schwarz's perception that Ms Kelsey was unable to perform her role in a manner that was impartial, specifically the Cr Schwarz had concerns about her apparent preference for Councillors Raven, Power and McIntosh.
  1. [625]
    The Applicant made no attempt to undermine Cr Schwarz's reasons.

…

  1. [691]
    None of the reasons advanced by Cr Schwarz for voting to terminate the employment of the Applicant were seriously challenged during cross-examination.
  1. [760]
    In her annexure, Ms Kelsey referred to the examples in the transcript where Cr Schwarz '… was challenged as to the true reasons' for her conduct, namely at T 15‑101, ll 19-27 '… regarding use [of] Acceptable Request Guidelines to disguise the true reasons for termination' and T 15-22, ll 9-30 regarding the '… global re‑assertion that the various reasons given by Cr Schwarz in fact actuated his [sic] conduct'.
  1. [761]
    In the first of these transcript references, Ms Kelsey put to Cr Schwarz that she (Cr Schwarz) did not take the ARGs into account when deciding to terminate Ms Kelsey. As referred to in paragraph [624], sub-paragraph h. of the Primary Decision, Ms Kelsey's conduct in relation to ARGs was one of the reasons given by Cr Schwarz to vote to terminate Ms Kelsey's employment. In the second of these transcript references (which is actually T 15-122, ll 9-30, ARB page 6464), Cr Schwarz was referred to all the reasons given in her affidavit for her decision to terminate Ms Kelsey's employment, it was put to her that none of those matters were her (Cr Schwarz) genuine reasons and that her genuine reasons to terminate Ms Kelsey's employment was that Ms Kelsey had lodged the PID and commenced legal action against the Council. Having regard to these transcript references, as expressly referred to in Ms Kelsey's annexure, the Vice President's finding at paragraph [691] of the Primary Decision was reasonably accurate.
  1. [762]
    Other than the matter concerning the ARGs, the above transcript references do not reveal Cr Schwarz being specifically challenged about her other sworn reasons. In any event, there is certainly no suggestion in the Primary Decision that, in respect of Cr Schwarz, the Vice President felt bound not to take account of submissions made by Ms Kelsey that his Honour believed breached the rule in Browne v Dunn.
  1. [763]
    From the transcript references in Ms Kelsey's annexure, it is the case that some witnesses were cross-examined about their reasons for voting to terminate Ms Kelsey's employment. However, I accept the Councillors' submissions that Ms Kelsey's case was that they were lying about their reasons because their alignment with Mayor Smith compelled them to vote the way they did. For the reasons given in paragraph [231], the Councillors' alleged alignment with Mayor Smith was an integral part of Ms Kelsey's case theory. 
  1. [764]
    The Vice President expressly dealt with this matter in paragraph [793] of the Primary Decision, namely:
  1. [793]
    I accept that none of the Third to Ninth Respondents who voted to terminate the Applicant's employment were cross-examined in any material way about any specific act or omission of Mayor Smith nor was it suggested to them that it was anything that Mayor Smith did or did not do which caused their decisions.  Accordingly, none of the Third to Ninth Respondents were given the opportunity to explain or deny any allegation that any particular conduct of the Mayor caused their decision to terminate the Applicant's employment.
  1. [765]
    This paragraph was not about the application of the rule in Browne v Dunn. This paragraph was about the fact that the Councillors were not confronted directly, in cross‑examination, about a central aspect of Ms Kelsey's case theory. The Councillors submitted this failure hindered the Vice President's ability to assess their credibility. This is what the Vice President found. No error of law is revealed in that approach.
  1. [766]
    Finally, in Ms Kelsey's reply submissions, it was contended that, on a fair reading of the Primary Decision and '… the exceedingly favourable credit findings that his Honour made as to the individual respondents', the Vice President appeared to have reasoned in a manner '… that exceeded the approach' in Curwen. Ms Kelsey submitted that this was apparent because where a matter was not the subject of cross‑examination, a clearly available inference is that the Vice President reasoned that '… he effectively had to put the matter out of his mind, rather than merely giving it more limited weight.' The inference was said to be available '… particularly because of the limited utility that extensive cross-examination would have had given how the individual respondents ran their case.'[687]
  1. [767]
    In support of this submission, it was contended that the Councillors, in paragraphs [158] to [160] of their written submissions to this Court, accepted that they were cross‑examined on their knowledge of how others (namely, the other Councillors) were going to vote. It was submitted that because the Councillors routinely and steadfastly denied any knowledge of how the other Councillors were going to vote, pressing them to answer questions of what they knew as to why those same colleagues would vote in a certain way (that is for a prohibited reason) would have been pointless.[688]
  1. [768]
    A similar issue to this last point made by Ms Kelsey was raised in Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers Appointed) (in liquidation) (Controllers appointed) (No 3) ('APCH').[689] In APCH, the Australian Securities and Investments Commission ('ASIC') brought proceedings against a company in liquidation and five defendant directors. It was alleged the directors contravened certain duties under the Corporations Act 2001.  A relevant issue was whether ASIC had proven the defendant directors voted in favour of, or otherwise assented to, a specific resolution. The defendants' evidence was that the resolution was never before the Board and, therefore, none of them could have voted for it. One particular question was whether the second defendant voted in favour of the resolution.[690]
  1. [769]
    The second defendant submitted that, having regard to Curwen, ASIC made a forensic choice to not explore, with the other defendant directors, whether he voted for the resolution or not. That contention was rejected by Murphy J who stated:
  1. [499]
    Senior Counsel for Mr Lewski contended that ASIC made a forensic choice not to explore with the other Directors whether Mr Lewski voted for the resolution or not, and argued that I cannot be satisfied to the requisite standard that he did so. I do not agree. I am not satisfied that ASIC made such a forensic choice. There was no point in ASIC cross‑examining any of the Directors as to whether the others had voted in favour of the resolution when each of them gave evidence denying that the resolution was even before the meeting. If ASIC had asked the question no Director could have provided an answer that Mr Lewski or another Director in fact voted on it. While I have no difficulty with the approach of Redlich and Bongiorno JJA and Hansen AJA in Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335 at [27]-[29], upon which Senior Counsel relied, I do not accept that it requires the finding for which he contended.
  1. [770]
    Ms Kelsey's submission cannot be accepted.  This is for a number of reasons.
  1. [771]
    First, I have read the transcript passages, referred to in Ms Kelsey's annexure, by which she submits, by way of examples, she cross-examined each of the Councillors 'Regarding knowledge of how others would vote including whether discussions occurred regarding votes, whether requests were made regarding votes etc'. While Cr Dalley was more extensively cross-examined than other Councillors, they all were cross-examined about whether they knew how the other Councillors were going to vote and if discussions about that issue occurred prior to the vote.
  1. [772]
    Secondly, as the Vice President stated in paragraph [767] of the Primary Decision, Ms Kelsey's case was dependent upon the contention that Mayor Smith and the Councillors  were politically affiliated with each other and that they were each aligned with each other in relation to her performance, probation processes and employment matters. Further, as the Vice President stated in paragraph [776] of the Primary Decision, Ms Kelsey contended the alignment between Mayor Smith and the Councillors was such that they voted en masse to terminate her employment for a proscribed reason.
  1. [773]
    For the reasons given in paragraph [231], Ms Kelsey's pleaded case was that:
  • Mayor Smith and the Councillors were politically affiliated with each other;
  • the Councillors were aligned with each other and Mayor Smith in relation to her (Ms Kelsey's) performance, probation processes and employment matters;
  • it could be inferred that Mayor Smith was in favour of the termination of Ms Kelsey's employment; and
  • each of the Councillors voted to terminate her employment because she had made the Council Complaint and the CCC Referral in that they were politically aligned with Mayor Smith and they were aligned with each other and with Mayor Smith in relation to her performance, probation processes and employment matters.
  1. [774]
    This was, as I understand her submissions to this Court, Ms Kelsey's '…case theory.' 
  1. [775]
    Ms Kelsey's written closing submissions before the Vice President included a submission that the Councillors gave false evidence in relation to the extent of alignment between them as well as in relation to the reasons for their decision to vote to terminate her employment.[691] 
  1. [776]
    Thirdly, for the reasons given in the last four paragraphs, differently to the circumstances in APCH, there was a forensic choice to be made by Ms Kelsey about cross-examining the Councillors as to whether they knew the other Councillors were motivated to vote to terminate Ms Kelsey's employment for a prohibited reason. The failure to challenge the Councillors about this led to the Vice President's conclusion that the Councillors' sworn evidence should be believed. On a plain reading of the paragraphs in the Primary Decision to which Ms Kelsey refers, it is clear that the Vice President was well aware of the approach referred to in Curwen and that his Honour had proper regard to it.
  1. [777]
    Fourthly, in APCH, the issue about the limited utility of certain cross-examination was raised in the trial. Ms Kelsey did not point to where, before the Vice President, she made the submission she now makes on appeal, namely, the alleged limited utility of cross-examining the Councillors about whether they knew the other Councillors were going to vote for a prohibited reason because, in cross-examination, they denied any prior discussions about the vote.
  1. [778]
    The Vice President did not exceed the approach in Curwen. Rather than putting '… the matter' out of his Honour's mind where a matter was not the subject of cross‑examination, the reasons given by the Vice President demonstrate that the matter directly figured in his Honour's assessment of the evidence before him. There was a forensic choice available to Ms Kelsey about whether she cross-examined the Councillors if they knew the others were motivated to vote for a prohibited reason. Ms Kelsey's submission to the Vice President was that the Councillors were deliberately lying about their sworn evidence and that, because of their alignment with each other and their alignment with Mayor Smith, they voted to dismiss her for a prohibited reason.
  1. [779]
    The issue that faced the Vice President, and the course his Honour took, was based on orthodox and clear principles. Indeed, the course the Vice President took was similar to that recently undertaken by Snaden J in Jolly v Sharma[692] where his Honour stated:
  1. 184
    True it is, of course, that Mr Sharma was on notice that Mr Jolly would invite the court to disbelieve his evidence, and to conclude (whether as a matter of inference or by reason of the statutory presumption in s 361(1) of the FW Act–or both) that his motivations for supporting the 9 August Resolutions included motivations that were proscribed by pt 3‑1 of the FW Act. There can be no suggestion that the court should reject Mr Jolly’s invitation by application of the rule in Browne v Dunn (1893) 6 R 67.
  2. 185
    Nonetheless, the court should, I think, be slow to draw conclusions adverse to Mr Sharma – or, worse, conclusions that are consistent with the hypothesis that he deliberately gave false evidence–in circumstances where he was not given an opportunity in the witness box to say why they ought not to be drawn: see, in that regard, Curwen v Vanbreck Pty Ltd (2009) 26 VR 335, 349-350 [28]-[29] (Redlich and Bongiorno JJA and Hansen AJA).
  3. 186
    For obvious reasons, it is unnecessary to make any more of that. I regard the evidence that Mr Sharma gave about why he did what he did in support of the 9 August Resolutions as truthful and forthright, and I accept it. He did not bring about the passage of those resolutions because, or for reasons that included that, Mr Jolly had exercised a workplace right.
  4. 187
    Mr Jolly’s claim to relief under pt 3-1 of the FW Act must be rejected.
  1. [780]
    In respect of the precise evidence raised in proposed ground of appeal 12, the Vice President's approach to assessing the case argued by Ms Kelsey and that evidence reveals no error of law.
  1. [781]
    For these reasons, this proposed ground of appeal reveals no error of law.
  1. [782]
    Proposed ground of appeal 12 is not made out.
  1. [783]
    Ms Kelsey should not be allowed to amend her application to appeal on this ground.

PART NINE

Proposed grounds of appeal 13 (a) and 13 (b)

  1. [784]
    These proposed grounds are that the Vice President:
  1. 13.Failed to have regard to relevant considerations that:
  1. (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);
  2. (b)
    the applicant had exercised a workplace right to participate in a process or proceeding within the meaning of  s 284(1)(b) as defined in s 283 of the IR Act, being the filing of the first instance proceeding (cf. paragraph 314 of the reasons)
  1. [785]
    As referred to earlier, as a consequence of the parties' agreed proposal and the Directions Orders, Ms Kelsey needed the leave of the Court to make oral submissions that went beyond the issues and contentions contained in her written outline of submissions.
  1. [786]
    Ms Kelsey wanted to make oral submissions about these grounds despite the fact she did not refer to them in her principal or reply submissions. Ms Kelsey's contention is that the Vice President made an additional error by not considering whether the QIRC proceeding was a basis for the termination of her employment.
  1. [787]
    The Councillors and the Council initially opposed such leave being granted to Ms Kelsey. The Councillors submitted that in order to properly address that contention, they needed to examine all of the arguments made before the Vice President to find out if they were squarely raised in Ms Kelsey's submissions.[693]
  1. [788]
    However, subsequently, the Councillors did make submissions about these proposed grounds. In those circumstances, leave should be given to Ms Kelsey to make submissions about these proposed grounds.
  1. [789]
    Ms Kelsey submitted that:
  • it was expressly pleaded that a prohibited reason for her dismissal was the fact that she commenced the QIRC proceedings on 1 December 2017;
  • the Vice President, while his Honour appropriately considered whether her making '… the PID' motivated the Councillors to vote to terminate her employment, did not consider whether the Councillors were motivated to terminate her employment because she commenced the QIRC proceedings;
  • in paragraph [172] of the Primary Decision, his Honour stated:
  1. [172]
    On 1 December 2017, Ms Kelsey filed her Application commencing these proceedings.  It is asserted that this impacted the Second to Ninth Respondents.  It is clear from their comments, including those references to Ms Kelsey as litigious as set out above, that Councillors' views had been further changed by the commencement of litigation;
  • from that paragraph, the Vice President made what looked like a finding about how the Councillors related to Ms Kelsey after she commenced the QIRC proceedings; and
  • the difficulty is that '… we just don't know what his Honour meant by that or how it influenced his broader decision-making.'[694]
  1. [790]
    Ms Kelsey did concede that if the Court was against the other challenges she makes to the Primary Decision, namely, in respect of the challenges to the credibility and factual findings, these proposed grounds would not affect the result of her application to amend.[695]
  1. [791]
    The Councillors[696] submitted that in Ms Kelsey's final written submissions to the Vice President, she did submit that the proscribed reasons for her dismissal included the views of some of the Councillors about her being litigious and that she had commenced the litigation against the Council.[697]
  1. [792]
    The Councillors then submitted that in the Primary Decision:
  • at paragraph [787], the Vice President dealt with the description of Ms Kelsey, by number of the Councillors, as litigious and held that it did not necessarily follow that '… they were motivated by a proscribed reason for terminating her employment'; 
  • at paragraph [806], the Vice President decided;
  1. [806]
    The fact that some of the Third to Ninth Respondents have been critical of Ms Kelsey's performance or demonstrated animosity towards her does not suggest that a conclusion can be reached that it was as a consequence of her lodging a PID or commencing the proceedings in the Commission.  Likewise, to the extent to which some of the Respondents described the Applicant as litigious or were critical of her affidavits, does not mean they were motivated by a proscribed reason in terminating her employment.; and
  • at paragraph [822], the Vice President expressly concluded that the Councillors did not extend Ms Kelsey's probationary period for a proscribed reason.[698]
  1. [793]
    The Councillors then submitted, in light of the above, there is no basis to conclude that the Vice President did not consider the commencement of the QIRC proceedings to be part of the case. The Councillors further submitted that the issue of the QIRC proceedings was a very minor part of the case, and the Vice President's findings clearly dealt with that issue.[699]
  1. [794]
    I accept the submissions made by the Councillors. It was definitely part of Ms Kelsey's case that a proscribed reason for the Councillors' voting to terminate her employment was because she had commenced the QIRC proceedings on 1 December 2017.
  1. [795]
    However, the references to the Primary Decision set out by the Councillors that I have referred to above, indicate that the Vice President considered that discrete claim made by Ms Kelsey in his Honour's reasons. That is to say, Ms Kelsey's submission that  paragraph [172] of the Primary Decision was ambiguous cannot be accepted.
  1. [796]
    In any event, for all the reasons given by the Vice President, he accepted the evidence of the Councillors as to their reasons for voting to terminate Ms Kelsey's employment. None of those reasons included the reasons as alleged by Ms Kelsey. For the reasons I have given in this judgment, there is no error of law or of fact that vitiates those conclusions reached by the Vice President.
  1. [797]
    For these reasons, these proposed grounds of appeal reveal no errors of law or fact.
  1. [798]
    Proposed grounds of appeal 13 (a) and (b) are not made out.
  1. [799]
    Ms Kelsey should not be allowed to amend her application to appeal on these grounds.

PART TEN

Conclusion

  1. [800]
    The principal issue the Court had to determine was whether or not Ms Kelsey's application to amend her application to appeal should be granted.
  1. [801]
    In determining whether or not to grant Ms Kelsey's application to amend, by the parties' agreed proposal which was adopted by the Court, the Court heard full argument about the specific grounds of appeal and about the categories of complaint proposed to be pursued by Ms Kelsey. For the reasons given:
  • no errors of law are made out; and
  • no errors of fact are made out.
  1. [802]
    For these reasons, the Court will order that Ms Kelsey's application to amend, filed on 18 June 2021, be dismissed. Further, because of the parties' agreed proposal as adopted by the Court, the further consequence is that Ms Kelsey's application to appeal, filed on 21 April 2021, should also be dismissed.
  1. [803]
    I will hear the parties as to the costs of Ms Kelsey's application to appeal as heard by me.

PART ELEVEN

Orders

  1. [804]
    The Court makes the following orders:
  1. 1.The Appellant's Application in existing proceedings, filed on 18 June 2021, is dismissed.
  2. 2.The Appellant's Application to appeal, filed on 21 April 2021, is dismissed.
  3. 3.In relation to the issue of costs:
  1. (a)
    the First Respondent is to file in the Industrial Registry and serve on the Appellant, written submissions on the costs of the proceeding before the Court as currently constituted  ('the proceeding') (of no more than five (5) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages), by 4.00 pm on Monday, 26 August 2024;
  2. (b)
    the Third to Ninth Respondents are to file in the Industrial Registry, and serve on the Appellant, written submissions on the costs of the proceeding (of no more than five (5) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages), by 4.00 pm on Monday, 26 August 2024;
  3. (c)
    the Appellant is to file in the Industrial Registry, and serve on the First Respondent and on the Third to Ninth Respondents, written submissions on the costs of the proceeding (of no more than ten (10) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) ('the Appellant's costs submissions'), by 4.00 pm on Monday, 16 September 2024;
  4. (d)
    the First Respondent is to file in the Industrial Registry, and serve on the Appellant, written submissions in reply to the Appellant's costs submissions (of no more than three (3) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 30 September 2024;
  5. (e)
    the Third to Ninth Respondents are to file in the Industrial Registry, and serve on the Appellant, written submissions in reply to the Appellant's costs submissions (of no more than three (3) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 30 September 2024; and
  6. (f)
    unless otherwise ordered, the decision on the costs of the proceeding be determined on the papers.

Footnotes

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

[2] Ibid [1].

[3] Ibid [3].

[4] Ibid [4].

[5] Appeal Record Book ('ARB'), pages 500-524.

[6] ARB, pages 526-553.

[7] ARB, pages 557-583.

[8] Primary Decision (n 1) [7].

[9] Ibid [11].

[10] Primary Decision (n 1), [823].

[11] T 1-11, l 34 to T 1-12, l 4.

[12] Ms Kelsey's Further Amended Application filed on 10 April 2018 ('the application for final relief'), section 3, para. 3. ARB, page 325.

[13] The application for final relief, section 3, para. 5, ARB, page 325.

[14] The application for final relief, section 3, para. 5.1, ARB, page 325. 

[15] The application for final relief, section 3, para. 5.3, ARB, page 325.

[16] The application for final relief, section 3, para. 5.4, ARB, page 325.

[17] The application for final relief, section 4, paras. 3.24-3.25, ARB, pages 329-331.

[18] The application for final relief, section 4, para. 19.

[19] The application for final relief, section 4, paras. 14.16, 19 and 23.1 (g), 23.2 (g), 23.3(g), 23.4 (f), 23.5(f), 23.6(g) and 23.7(f), ARB, pages 342 and 349-351.

[20] The application for final relief, section 4, paras. 22.1 and 22.2, 22.3 and 22.4, 22.5 and 22.6, 22.7 and 22.8, 22.9 and 22.10, 22.11and  22.12, and 22.13 and 22.14, ARB, pages 343-348.

[21] The application for final relief, section 4, paras. 23.1, 23.2, 23.3, 23.4, 23.5, 23.6, and 23.7, ARB, pages 349-351.

[22] The application for final relief, section 4, paras. 14.10-14.16 and 20.1(j), ARB, pages 342-344.

[23] The application for final relief, section 4, para. 22.15, ARB, page 349.

[24] The application for final relief, section 4, para. 28 (a4), ARB, page 352.

[25] The application for final relief, section 4, para. 28 (a)-(c), ARB, pages 352-353.

[26] The application for final relief, section 4, para. 28.1 (l), ARB, page 353.

[27] The application for final relief, section 4, paras. 28 and 28.2 (a), ARB, pages 353-354.

[28] The application for final relief, section 4, para. 25, ARB, page 351.

[29] The application for final relief, section 4, paras. 30.1(g), 30.6(e), 30.11(e), 3.16(d), 30.21(c), 30.26(e), and 30.31(c), ARB, pages 356-359.

[30] The application for final relief, section 4, paras. 28 and 30.2, 30.7, 30.12, 3.17, 30.22, 30.27, and 30.32, ARB, pages 356-361.

[31] The application for final relief, section 4, paras. 30.3-30.5, 30.8-30.10, 30.13-30.15, 3.18-30.20, 30.23-30.25, 30.28-30.30, and 30.33-30.35, ARB, pages 356-361.

[32] The Response of the Logan City Council dated 17 April 2018 ('the Council's response'), paras. 28 and 39, ARB, pages 370 and 372.

[33] The Response of the Third to Ninth Respondents dated 18 April 2018 ('the Councillors' response'), paras. 23.1-23.7 and 30.1-30.35, ARB, pages 411 and 413-417.

[34] Primary Decision (n 1) [823].

[35] Ibid [423] the Third Respondent, Councillor Cherie Dalley ('Cr Dalley'), [509] the Sixth Respondent, Councillor Laurence Smith ('Cr Smith'), [537] the Seventh Respondent, Councillor Phillip Pidgeon ('Cr Pidgeon'), [582] the Fifth Respondent, Councillor Stephen Swenson ('Cr Swenson'), [622] the Fourth Respondent, Councillor Russell Lutton ('Cr Lutton'), [692] the Eighth Respondent, Councillor Trevina Schwarz ('Cr Schwarz') and [736] the Ninth Respondent, Councillor Jennifer Breene ('Cr Breene').

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

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

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

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

[40] Primary Decision (n 1), [20]-[73].

[41] Ibid [74]-[84].

[42] Ibid 85]-[97].

[43] Ibid [117]-[123].

[44] Ibid [124]-[151].

[45] Primary Decision (n 1), [152]-[155].

[46] Ibid [156]-[162].

[47] Ibid [163]-[171].

[48] Ibid [172]-[174].

[49] Ibid [175]-[180].

[50] Ibid [181]-[197].

[51] Ibid [233]-[240].

[52] Ibid [246]-[253].

[53] Ibid [254]-[268].

[54] Ibid [269]-[274].

[55] Ibid Cr Dalley at [350]-[461], Cr Smith [462]-[509], Cr Pidgeon at [510]-[537], Cr  Swenson at [538]-[582], Cr  Lutton, [583]-[622], Cr Schwarz at [623]-[692] and Cr Breene at [693]-[736].

[56] Ibid [737]-[823].

[57] Primary Decision (n 1), [767]-[787].

[58] Ms Kelsey's principal outline of submissions to this Court filed on 7 August 2023 ('Ms Kelsey's principal submissions'), paras. 181-182.

[59] Ms Kelsey's principal submissions, paras. 183-184.

[60] The submissions of the Logan City Council to the Court filed on 8 September 2023 ('the Council's submissions'), paras. 5-6.

[61] The submissions of the Third to Ninth Respondents to the Court filed on 16 September 2023 ('the Councillors' submissions'), para. 165.

[62] Ms Kelsey's principal submissions, paras. 183-184.

[63] [2017] ICQ 005, [15]-[17] (Martin J, President).

[64] Ibid [49].

[65] Burns v Grigg [1967] VR 871, 782 (Barry J, Little and Gowans JJ at 874 agreeing),  He v Aloe & Co Pty Ltd [2006] VSC 150, [5] (Maxwell ACJ and Eames JA), Saville v Q-Comp and Anor [2007] ICQ 28; (2007) 185 QGIG  243, 244 (President Hall), H v P [2011] WASCA 78, [92] (Murphy JA, Pullin JA at [1] and Buss JA at [2] agreeing) and Kelsey v Logan City Council & Ors [2022] QCA 238, [41]-[43] (McMurdo and Flanagan JJA and Freeburn J).

[66] [2020] ICQ 002 ('Langerak').

[67] Citation omitted.

[68] Langerak (n 66) [88] (Martin J, President).

[69] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 391 (Mason CJ and Deane and Dawson JJ) and Cosmopolitan Hotel (Vic) Pty Ltd & Anor v Crown Melbourne [2014] VSCA 353; (2014) 45 VR 771, [36] (Warren CJ).

[70] Section 539 of the Industrial Relations Act 2016 relevantly provides:

539 Powers incidental to exercise of jurisdiction

Except as otherwise provided for by this Act or the rules, the court, commission or registrar may–

…

(d) allow claims in the proceedings to be amended on terms that appear fair and just.

[71] Rule 226 of the Industrial Relations (Tribunals) Rules 2011 relevantly provides:

226 Effect of failure to comply with rules

(1) A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.

(2) If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may–

…

(f) make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.

[72] See, eg, Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211,  [30] (Branson, Nicholson and Jacobson JJ).

[73] See, eg, Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549 ('Sydneywide'), [48]-[49] and [66] (Weinberg and Dowsett JJ) and Hamod v New South Wales [2011] NSWCA 375, [4] (Beazley JA, with Giles JA at [829] and Whealy J at [830] agreeing).

[74] [2000] HCA 40; (2000) 203 CLR 172. See also Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [57]-[58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[75] Citations omitted.

[76] [1986] HCA 33; (1986) 162 CLR 1, 7.

[77] [2018] HCA 30: (2018) CLR 541.

[78] Citations omitted.

[79] (1979) 23 ALR 211, 217-218.

[80] See also Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 644-645 (Shepherdson J, Campbell CJ at 639 and Kelly J at 640 agreeing) as to errors of law, Sydneywide (n 73), [4] (Branson J) as to errors of subordinate or basic facts, and as to errors in steps in the process of legal reasoning leading to an ultimate conclusion of law and McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7, [4] and [5] (Martin J, President) as to errors of law where there is no evidence of a fact.

[81] Ms Kelsey's principal submissions, para. 180.

[82] Ms Kelsey's principal submissions, para. 180.

[83] Ms Kelsey's principal submissions, para. 19.

[84] [2022] HCA 26; (2022) 403 ALR 398 ('Nathanson'), [30]-[33] (Kiefel CJ, Keane and Gleeson JJ).

[85] [2021] HCA 17: (2021) 273 CLR 506 ('MZAPC'), [1]-[3] and [31]-[60] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[86] Nathanson (n 84), [46] (Gageler J). Ms Kelsey incorrectly referenced paragraph [42] of the judgment of Gageler J as authority for the proposition stated.

[87] [2020] FCAFC 110; (2020) 278 FCR 529 ('DQM18'), [113]-[117] (Bromberg and Mortimer JJ).

[88] T 3-53, l 49 to T 3-56, l 9.

[89] MZAPC (n 85), [41], [43], [45] and [60].

[90] T 3-55, ll 36-38.

[91] Citations omitted.

[92] Nathanson (n 84), [3]-[4].

[93] Ibid [1].

[94] Nathanson (n 84), [43]-[44].

[95] MZAPC (n 85), [5]-[7].

[96] Ibid [8]-[16].

[97] Ibid [17].

[98] Ibid [1].

[99] DQM18 (n 87), [11]-[14].

[100] Bromberg and Mortimer JJ.

[101] MZAPC (n 85), [42]- [44].

[102] Ibid [45] -[60].

[103] See for example Harvey v State of Queensland (Queensland Health) [2024] ICQ 10, [21]-[23] (Davis J, President).

[104] The Councillors' submissions, paras. 14-15.

[105] The Council's submissions, paras. 180-181.

[106] [2023] ICQ 009.

[107] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ) recently cited with approval in Jones v The Commonwealth [2023] HCA 34; (2023) 97 ALJR 936, [21] (Kiefel  CJ, Gageler,  Gleeson and Jagot JJ).

[108] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1, 5 (Mason CJ, Wilson and Dawson JJ). I note that in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, Mortimer CJ stated of the phrase, in the relevant statutory context of that case:

[213] It is well established, and the respondents did not dispute, that Parliament’s use of the phrase “any public interest” confers a wide discretionary value judgment function on a repository: O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216; Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 at [21] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 at [39] (French CJ, Crennan and Bell JJ); Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; 48 VR 129 at [313]-[317] (Tate JA). See also in the context of s 39(1)(e): Evans v State of Western Australia [1997] FCA 741; 77 FCR 193 at 215.

[214] The phrase is not, and is not intended to be, susceptible of precise definition, nor is it appropriate to set out lists of matters that might fall within its scope. The adjective “public” connotes an interest of a nature that is different from a private or individual interest. It asks a repository of a power conferred in these terms to look at interests common to or held amongst a wider community, but not necessarily across an entire community, or nation.

[109]Doyles Construction Lawyers v Serratore [2002] QIRComm 21; (2002) 169 QGIG 196 ('Doyles'), 197 (President Hall, Commissioner Brown and Commissioner Asbury).

[110] Doyles (n 109), 197.

[111] Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2) [1995] IRCA 680; (1995) 61 IR 455,  479-480 (Wilcox CJ, and Keely J, Moore J at 485 agreeing), Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 013, [70] (Davis J , President) and Cleal v State of Queensland (Queensland Health) [2023] ICQ 006, [85] (Vice President O'Connor).

[112] The Electrical Trades Union of Queensland v United Group Limited [2007] QIRC 88; (2007) 186 QGIG 611, 617 (President Hall, Deputy President Bloomfield and Commissioner Thompson).

[113] Doyles (n 109), 197.

[114] The Councillors' submissions, para. 16 and T 3-19, ll 27-28.

[115] T 3-19, l 29.

[116] Proposed grounds of appeal 13 and 14.

[117] Proposed ground of appeal 15.

[118] Proposed grounds of appeal 16, 17, 18, 19, 20, 24 and 25.

[119] Proposed grounds of appeal 26 and 27.

[120] Indeed, the Council submitted that a large proportion, if not all, of its submissions were effectively covered by the submissions of the Councillors: T 3-21, l 47 to T 3-22, l 4.

[121] T 2-42, ll 29-40.

[122] Order no. 3 of the Further Directions Order dated 9 March 2023 ('Directions Order').

[123] Directions Order, order no. 2.

[124] Directions Order, order nos. 4-5.

[125] Directions Order, order no. 6.

[126] (1893) 6 R 67 ('Browne v Dunn').

[127] The Council's submissions, paras. 9-10.

[128] The Councillors' submissions, paras. 4-5.

[129] Namely, footnote 132 of Ms Kelsey's principal submissions, which refers to proposed grounds 24 and 27(e).

[130] The Council' submissions, paras. 11-13

[131] Which stands for Ms Kelsey's principal submissions.

[132] Emphasis added.

[133] See, for example, T 1-54, l 39 to T 1-57, l 32 in relation to certain WhatsApp messages.

[134] Gipp v The Queen [1998] HCA 21;(1998) 194 CLR 106, [58] (McHugh and Hayne JJ).

[135] Sydneywide (n 73), [4] (Branson J).

[136] [2022] FCAFC 38; (2022) 290 FCR 173 ('Ohlsen').

[137] Ibid [59] (Bromberg, Mortimer and Jackson JJ).

[138] [2009] VSCA 112, [2009] VSCA 178; (2009) 24 VR 155 ('Rosenberg').

[139] Ibid [22].

[140] T 1-6, ll 20-21.

[141] T 1-8, l 31 to T 1-9, l 15.

[142] Ms Kelsey's principal submissions, para. 14.

[143] Footnotes omitted. Emphasis in the original.

[144] [1987] FCA 732 ('Gibbs').

[145] [2013] FCA 451; (2013) 234 IR 139 ('NTEU').

[146] [2022] FCA 1226 ('Serpanos'), [124]-[127] (Snaden J).

[147] [2021] FCA 671.

[148] Ms Kelsey's principal submissions, para. 29.

[149] Ms Kelsey's principal submissions, para. 29.

[150] T 1-13, l 48 to T 1-14, l 9.

[151] T 1-15, ll 14-23.

[152] T 1-15, ll 25-37.

[153] [2001] FCA 1804; (2001) 129 IR 251 ('Kodak').

[154] Ibid, [20] (Lee, Madgwick and Gyles JJ).

[155] T 1-16, ll 4-14.

[156] T 3-60, ll 20-29 and T 3-61, ll 6-10.

[157] [2015] FCAFC 157; (2015) 238 FCR 273 ('Dawson Services').

[158] The Councillors' submissions, paras 18-23.

[159] [1999] HCA 3; (1999) 160 ALR 588 ('Earthline').

[160] Ibid [62]-[63] (Gaudron, Gummow and Hayne JJ).

[161] Ms Kelsey's reply submissions, para. 13.

[162] Ms Kelsey's principal submission, para. 48 and T 2-14, ll 45-47.

[163] T 2-14, l 45 to T 2-15, l 17 and T 2-34, l 17 to T 2-35, l 23.

[164] T 1-15, l 25 to T 1-16, l 14, T 1-28, ll 9-14 and Ms Kelsey's reply submissions, paras. 9-13.

[165] T 1-14, l 25 to T 1-15, l 39.

[166] T 2-33, l 29 to T 2-34, l 32.

[167] [2005] NSWCA 476 ('Sharman').

[168] Sharman (n 167), [4].

[169] Emphasis added.

[170] Namely, whether a Filshie clip was correctly applied to the appellant's left fallopian tube, which was the appellant's case for negligence: Sharman (n 167), [4]-[15].

[171] T 2-61, ll 11-49.

[172] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 138 ('Azzopardi'), 155 B-G (Glass JA, Samuels JA at 157 agreeing).

[173] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

[174] Gibbs (n 144).

[175] Ibid, pages 2-3 of the reasons for decision.

[176] NTEU (n 145).

[177] NTEU (n 145), [9]-[29].

[178] Ibid [131]-[132].

[179] Serpanos (n 146).

[180] The Councillors' submissions, para. 23.

[181] The Council's submissions, para. 66.

[182] [2012] HCA 32; (2012) 248 CLR 500 ('Barclay'). Citations omitted.

[183] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 7-8 (Mason J) and Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439, [25]-[27] (Gleeson CJ, Gummow and Callinan JJ).

[184] Azzopardi (n 172).

[185] Azzopardi (n 172), 155G-156B and 155G-157B. Emphasis added.

[186] The Councillors' submissions, para. 24.

[187] T 1-15, l 25 to T 1-16, l 14 and T 1-28, ll 9-14.

[188] The Councillors' submissions, para. 22.

[189] Dawson Services (n 157).

[190] See also the recent decisions in Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686, [615] (Charlesworth J) and Parsons v Serco Citizen Services Pty Limited [2024] FCA 754, [104]  (Rangiah  J).

[191] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243, [85] Gageler J.

[192] Ibid.

[193] Citation omitted.

[194] [2023] FCAFC 166; (2023) 327 IR 196 ('Monash') (Katzmann, Snaden and Raper JJ).

[195] Ibid [119].

[196] Dawson Services (n 157), [134].

[197] [2022] ICQ 013. Citations omitted.

[198] T 2-67, ll 10-42.

[199] The Councillors' submissions, para. 20.

[200] The Councillors' submissions, para. 19.

[201] The Councillors' submissions, para. 19. See also the Primary Decision (n 1), para. [764], the first sentence.

[202] The Council's submissions, para. 65.

[203] The Council's submissions, para. 66.

[204] Dawson Services (n 157), [134].

[205] The Council's submissions, para. 68.

[206] Ms Kelsey's principal submissions, paras. 30-34.

[207] Ms Kelsey's principal submissions, para. 35.

[208] T 1-28, ll 1-33.

[209] [2021] FCAFC 137; (2021) 309 IR 262 ('TechnologyOne'), [125]-[128] (Rangiah, White and O'Callaghan JJ).

[210] Ms Kelsey's principal submissions, paras. 38-40.

[211] Ms Kelsey's principal submissions, para. 29.

[212] Ms Kelsey's written submissions in reply filed on 9 October 2023 (Ms Kelsey's reply submissions'), para. 12.

[213] Ms Kelsey's reply submissions, para. 13. Footnote omitted.

[214] Ms Kelsey's principal submissions, para. 42.

[215] [2015] VSCA 7; (2015) 69 MVR 410 ('TAC').

[216] Citations omitted. In fact, the application for leave to appeal in TAC (n 215) was determined in favour of the applicant on the grounds of inadequacy of reasons: Santamaria JA at [81] (with whom Neave JA at [1] agreed) and Ginnane AJA at [105]. The members of the Victorian Court of Appeal, who gave detailed reasons, did not decide the application on the basis of the applicant's arguments about delay: Santamaria JA at [101] and Ginnane AJA at [111].

[217] Ms Kelsey's principal submissions, para. 46, citation omitted.

[218] Ms Kelsey's principal submissions, para. 189.

[219] T 1-82, ll 14-28.

[220] T 2-4, ll 3-4.

[221] T 2-24, ll 6-7.

[222] The Councillors' submissions, para. 35.

[223] The Council's submissions, paras. 59-61.

[224] [2004] FCAFC 189; (2004) 140 FCR 17 ('Expectation')[69]-[79] (Carr, Emmett and Gyles JJ).

[225] [2005] NSWCA 25; (2005) 63 NSWLR 729 ('Monie')[43]-[44] (Hunt A-JA, Giles JA at [1] and Bryson JA at [6] agreeing).

[226] [2024] FCAFC 20 ('Microsoft'), [115] (Nicholas J) and [271] (Jackman J).

[227] Expectation (n 224), [69].

[228] Emphasis added.

[229] See e.g. Microsoft (n 226), [113].

[230] Ms Kelsey's principal submissions, para. 45.

[231] [2015] FCAFC 62; (2015) 233 FCR 46.

[232] Ibid [129]-[134].

[233] Expectation (n 224) [63]-[64].

[234] Ibid [61] and [65].

[235] Monie (n 225), [42].

[236] Ibid [50]-[54].

[237] Ibid [55]-[64].

[238] Microsoft (n 226), [112].

[239] Ibid. Emphasis added.

[240] Microsoft (n 226), [121].

[241] T 2-23, l 45 to T 2-24, l 6.

[242] T 2-26, ll 35-41.

[243] TechnologyOne (n 209).

[244] Ms Kelsey's principal submissions, para. 41.

[245] The Councillors' submissions, para. 34.

[246] Citing Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 280 (McHugh JA).

[247] T 2-82, l 41 to T 2-84, l 4.

[248] Kodak (n 153), [38].

[249] TechnologyOne (n 209), [111].

[250] The Council's submissions, para. 85.

[251] T 3-25, l 25 to T 3-27, l 11.

[252] [2023] ICQ 006.

[253] Ibid [92].

[254] [2018] HCA 26; (2018) 266 CLR 1 ('DL').

[255] Footnotes omitted. See also the Langerak (n 66), [42] (Martin J, President).

[256] Soulemezis (n 246), 259.

[257] Citations omitted.

[258] [2003] HCA 22; (2003) 214 CLR 118 ('Fox v Percy '), [25] (Gleeson CJ and Gummow and Kirby JJ).

[259] Ibid [28].

[260] Ibid [90] (McHugh J).

[261] The Councillors' submissions, para. 45.

[262] Fox v Percy (n 258) [29].

[263] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55] (Bell, Gageler, Nettle and Edelman JJ).

[264] Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King [2024] FCA 454, [69].

[265] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178 (McHugh J).

[266] Ibid. Citation omitted.

[267] Earthline (n 159), [139] and [155].

[268] [2023] QCA 160 (Morrison and Bond JJA and Livesey AJA). Citations omitted.

[269] Ms Kelsey's principal submissions, para. 48.

[270] Sharman (n 167).

[271] Ms Kelsey's principal submissions, para. 48.

[272] The application for final relief, section 4, para. 3.24, ARB, pages 329-330.

[273] The application for final relief, section 4, para. 3.25, ARB, pages 330-331.

[274] The application for final relief, para. 3.26, ARB, page 331.

[275] The application for final relief, section 4, paras. 14.16, 19, 23.1 (g), 23.2 (g), 23.3(g), 23.4 (f), 23.5(f), 23.6(g), 23.7(f) and 25, ARB, pages 342 and 349-351.

[276] Ms Kelsey's principal submissions, para. 77.

[277] WhatsApp Screenshots, ARB, pages 3386-3415.

[278] WhatsApp Transcripts, ARB, pages 3533-3617.

[279] Ms Kelsey's amended outline of closing submissions, para. 3.163, ARB, page 4619.

[280] Ms Kelsey's amended outline of closing submissions, paras. 3.164-3.165, ARB, pages 4619-4620.

[281] Ms Kelsey's amended outline of closing submissions, para. 3.166, ARB, page 4620.

[282] Ms Kelsey's amended outline of closing submissions, para. 1.8, (x)-(aa), ARB, pages 4556-4557.

[283] T 22-14, ll 23-31, ARB, page 6588.

[284] T 22-14, ll 33-35, ARB, page 6588.

[285] T 22-14, l 41 to T 22-15, l 2, ARB, pages 6588-6589.

[286] T 22-15, ll 4-5, ARB, page 6589.

[287] T 22-15, ll 37-40, ARB, page 6589.

[288] Citations omitted.

[289] The Councillors' final submissions, para. 34. ARB, page 4831.

[290] Ms Kelsey's principal submissions, paras. 62-67.

[291] Referring to ARB pages 3297-3299 and T 9-51, ll 23-31, ARB page 5794, (which was the cross‑examination of Cr Swenson about one of his Facebook posts).

[292] Ms Kelsey's principal submissions, paras. 68-69.

[293] Ms Kelsey's principal submissions, paras. 70-71.

[294] Ms Kelsey's principal submissions, para. 72. Emphasis in Ms Kelsey's principal submissions, not in the Primary Decision.

[295] The Councillors' submissions, paras. 55-60.

[296] The Councillors' submissions, para. 60.

[297] The Council's submissions, para. 152.

[298] T 1-31, l 5 to T 1-33, l 42.

[299] T 1-42, ll 32-37.

[300] Ms Kelsey's principal submissions, para. 77.

[301] Keeping in mind that the critical allegation made by Ms Kelsey was that the Councillors voted to dismiss her because of the alleged political alignment between Mayor Smith and the Councillors.

[302] Ms Kelsey's principal submissions, paras. 73-75.

[303] T 6-34, l 42 to T 6-36, l 24, ARB, pages 5487-5489.

[304] T 1-38, ll 26-47.

[305] T 1-39, ll 10-35.

[306] T 1-39, l 37 to T 1-41, l 8.

[307] Ms Kelsey's principal submissions, para. 75.

[308] The Councillors' submissions, para. 48.

[309] The Councillors' submissions, para. 45.

[310] T 1-35, ll 4-13.

[311] The Councillors' submissions, para. 45.

[312] DL (n 254), [32]-[33].

[313] T 3-4, ll 4-5.

[314] T 1-43, ll 8-9.

[315] Footnotes omitted.

[316] T 1-44, ll 1-19.

[317] The Councillors' submissions, para. 62.

[318] For example, T 1-50, ll 6-10, T 1-52, ll 14-20,  T 1-53, l 45 to T 1-54, l 14, T 1-57, ll 4-8, T 1-57, ll 21-28,              T-59, ll 5-6,  T 1-65, ll 33-35, T 1-67, ll 18-40, T 1-69, ll 5-8, T 1-69, ll 26-31 and T 1-70, l 24.

[319] T 1-57, ll 29-32.

[320] For example,  T 1-54, ll 12-13, T 1-57, ll 28-32, T 1-59, ll 27-28, T 1-60, ll 14-19, T 1-63, ll 6-9, T 1-64, ll 29-37,  T 1-66, ll 42-44, T 1-67, ll 35-38 and T 1-70, l 24.

[321] Ms Kelsey's principal submissions, paras. 78-81.

[322] T 22-14, ll 23-31, ARB, page 6588.

[323] T 22-14, l 41 to T 22-15, l 5, ARB, pages 6588-6589.

[324] T 22-15, ll 33-35, ARB, page 6589.

[325] T 22-15, ll 38-40, ARB, page 6589.

[326] Ms Kelsey's principal submissions, para. 78.

[327] The Councillors' submissions, para. 64.

[328] The Councillors' submissions, para. 65.

[329] T 1-57, ll 29-32.

[330] See the Primary Decision (n 1), at [455] where the Vice President, in assessing Cr Dalley's evidence, found that the WhatsApp transcripts did not demonstrate that Cr Dalley had discussed how she and the others were going to vote.

[331] My emphasis.

[332] Of the seven Councillors, Cr Lutton did not use WhatsApp.

[333] The application for final relief, section 3, para. 5, ARB, page 325. In terms of potential maximum civil penalties, having to regard to sch 1 of the Acts Interpretation Act 1954 (definition of 'penalty unit'), s 571, s 574, s 575 and sch 3 (the sixth item) of the IR Act (that the maximum penalty for an individual, for an alleged contravention of s 285(1)(a)(ii) of the IR Act, was 90 penalty units) s 5(1)(e)(i) and s 5A(1) of the Penalties and Sentences Act 1992 and s 3 of the Penalties and Sentences Regulation 2015 (in respect of the value of a penalty unit at the date of the alleged contravention of s 285(1)(a)(ii) of the IR Act, 7 February 2018, being $126.15):

•the maximum civil penalty for an individual respondent was $11,353.50; and

•the maximum civil penalty for the Council was $56,767.50.

[334] Ms Kelsey's amended outline of closing submissions, para. 1.8(gg), ARB, page 4557.

[335] Ms Kelsey's amended outline of closing submissions, paras. 5.3(f) and 7.1(d), ARB, pages 4687 and 4694 and T 22-44, l 40, ARB, page 6618.

[336] The Councillors' submissions, para. 67.

[337] [2007] FCAFC 132; (2007) 162 FCR 466, (Weinberg, Bennett and Rares JJ).

[338] Ms Kelsey's reply submissions, paras. 37-40.

[339] [2020] FCA 1442; (2020) 389 ALR 17.

[340] In respect of the claim made and relief sought under the PID Act, by her application for final relief, the following orders were sought: section 3, para. 2 (that the Councillors take no part or have no involvement in any resolution in respect of her employment), para. 5.1 (reinstatement), para. 5.3 (payment of lost remuneration) and para. 5.4 (a continuous service order), ARB, page 325.

[341] Ms Kelsey's amended outline of closing submissions, para. 2.96, ARB, page 4579.

[342] T 2-96, ll 35-46.

[343] (1951) 217 ALR 1, 5 ('Bradshaw').

[344] T 2-96, l 48 to T 2-97, l 6.

[345] T 2-96, 11 8-12.

[346] [2010] FCA 784: (2010) 187 FCR 293.

[347] T 2-98, ll 6-11.

[348] T 22-15, ll 38-40, ARB, page 6589.

[349] [2008] WASC 239; (2008) 39 WAR 1. See also Momcilovic v the Queen [2011] HCA 34; (2011) 245 CLR 1, [665] (Bell J).

[350]Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738, [44] (Zammit J).

[351] [2017] FCAFC 228; (2017) 351 ALR 379.

[352] J Hutchinson Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 18, [173]-[174] (Bromwich and Anderson JJ, Wigney J at [5] generally agreeing) citing, at [173], Bradshaw (n 343) and, at [174], citing Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222, [479]-[481](Beech J). In J Hutchinson Pty Ltd v Australian Competition and Consumer Commission, Bromwich and Anderson JJ were not referring to a serious contravention of a civil remedy provision within the meaning of s 557A of the Fair Work Act 2009.

[353] Ms Kelsey's principal submissions, para. 80.

[354] Ms Kelsey's principal submissions, para. 81.

[355] 'D.3 Key evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'.

[356] 'D.4 Other evidence going to adequacy of reasons or demonstrating a failure to adequately grapple with the real strength of the evidence'.

[357] See for example, T 1-53, l 45 to T 1-54, l 14, T 1-57, ll 1-8, T 1-65, ll 15-35, T 1-67, ll 18-40, and T 1-70, l 24.

[358] The Councillors' submissions, para. 95.

[359] I note that in RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310, Snaden J at [55] stated that where a judge fails to refer to evidence that is critical to an issue in the case, this may constitute an error of law and cites Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284, [20], Earthline (n 159), [64],[94], [139] and [155], Mifsud v Campbell (1991) 21 NSWLR 725, 738 and DL (n 254), [33] as authority for that proposition. However, to the extent those passages from those cited cases do not refer to alleged inadequacy of reasons, I cannot see where those passages state that such an error is an error of law.

[360] T 2-81, l 49 to T 2-82, l 1.

[361] T 1-50, ll 15-18.

[362] Ms Kelsey's principal submissions, para. 81, footnote 77, which referred to ARB, pages 3546-3547, 3600, 3610.

[363] ARB, pages 3612 and 3615.

[364] Ms Kelsey's principal submissions, paras. 81-82 and T 1-67, ll 4-40.

[365] The Councillors' submission, para. 69.

[366] See T 11-120, l 16 to T 11-123, l 23, ARB, pages 6053-6056 (Cr Dalley's evidence in cross-examination).

[367] Ms Kelsey's principal submissions, paras. 83-84.

[368] T 1-56, ll 5-8.

[369] Ms Kelsey's principal submissions, para. 84 and T 1-56.

[370] T 1-56, ll 14-30 referring to T 9-32, ll 25-37, ARB, page 5775.

[371] The Councillors' submissions, para. 70.

[372] Ms Kelsey's principal submissions, para. 85.

[373] T 1-51, ll 3 to 34 referring to T 11-115, l 41 and T 11-116, l 1, ARB, pages 6048-6049.

[374] T 1-51, l 38 to T 1-52, l 20 referring to T 10-61, l 25 to T 10-62, l 8, ARB, pages 5896-5897.

[375] T 1-53, ll 46-47.

[376] As stated by Cr Smith in cross-examination, T 10-62, ll 1-8, ARB, page 5897; namely, that he shared Mayor Smith's vision for the City of Logan.

[377] Ms Kelsey's principal submissions, para. 85, which refers to ARB, page 3579.

[378] T 1-66, ll 26-28.

[379] Kelsey v Logan City Council and Another [2018] QIRC 009, [1] (Industrial Commissioner Fisher).

[380] Footnotes omitted.

[381] T 1-61, ll 1-23.

[382] T 1-68, ll 15-24.

[383] The Councillors' submissions, paras. 73-80.

[384] T 1-61, ll 29-44.

[385] T 11-102, l 31 to T 11-103, l 16, ARB, pages 6035-6036.

[386] T 11-103, ll 21-39, ARB, 6036.

[387] Ms Kelsey's principal submissions, para. 97.

[388] My insertion.

[389] Ms Kelsey's principal submissions, para. 98.

[390] T 1-69, ll 6-8. The reference to '… the court' is clearly a reference to the Commission.

[391] Paras. 150-151, ARB, pages 3175-3176.

[392] Para. 200, ARB, page 3283.

[393] Para. 167, ARB, page 3364.

[394] Para. 290, ARB, page 4045.

[395] Para, 106, ARB, page 3786.

[396] The Councillors' submissions, para. 85.

[397] Ms Kelsey's principal submission, paras. 99-104 and T 1-66, l 42 to T 1-67, l 2.

[398] 'The wicked conceive evil; they are pregnant with trouble and give birth to lies. They dig a deep pit to trap others, then fall into it themselves. The trouble they make for others backfires on them. The violence they plan falls on their own heads.'

[399] ARB, page 3579.

[400] Ms Kelsey's principal submissions, para. 103.

[401] My emphasis.

[402] My insertion.

[403] The Councillors' submissions, para. 87.

[404] ARB, pages 5732-5822.

[405] Ms Kelsey's principal submissions, para. 92.

[406] ARB, page 3601.

[407] Footnotes omitted.

[408] This was conceded to be an error and should have referred to Cr Smith: T 1-51, ll 38-46.

[409] The Councillors' submissions, paras. 82-84.

[410] Footnote omitted.

[411] T 1-63, ll 31-34.

[412] T 1-63, ll 6-16.

[413] T 1-65, ll 15-21.

[414] Emphasis added.

[415] T 1-64, ll 32-37.

[416] T 11-118, l 46 to T 11-119, l 14, ARB, pages 6051-6052.

[417] T 12-101, ll 35-37, ARB, page 6159.

[418] Ms Kelsey's principal submissions, para. 106.

[419] Footnote omitted.

[420] Cr Dalley, ARB, pages 3468-3469, Cr Lutton, ARB, pages 2868-2869, Cr Swenson, ARB, pages 3237-3239,  Cr Smith ARB, pages 3332-3333, Cr Pidgeon, ARB, pages 3148-3149, Cr Schwarz, ARB, pages 3869-3871 and Cr Breene, ARB, pages 3756-3757.

[421] Cr Dalley, ARB, pages 5941-6166, Cr Lutton, ARB, pages 5521-5636, Cr Swenson, ARB, pages 5732-5822,  Cr Smith ARB, pages 5837-5925, Cr Pidgeon, ARB, pages 5650-5726, Cr Schwarz, ARB, pages 6349-6468 and Cr Breene, ARB, pages 6182-6324.

[422] Primary Decision (n 1) Cr Dalley at [357] and [456]-[457], Cr Smith [509], Cr Pidgeon at [535]-[526] and [535], Cr  Swenson at [564],[568] and [578]-[580], Cr  Lutton, [588] and [596]-[597], Cr Schwarz at [685] and [689]-[690] and Cr Breene at [727]and [735].

[423] Ibid Cr Dalley at [423]-[461], Cr Smith [500]-[509], Cr Pidgeon at [523]-[537], Cr  Swenson at [567]-[582], Cr  Lutton, [617]-[622], Cr Schwarz at [623]-[692], in particular, from [681]-[692] and Cr Breene at [723]-[736].

[424] ARB, page 3606.

[425] T 1-57, ll 21-25.

[426] T 1-57, ll 36-44.

[427] ARB, page 3568.

[428] T 1-57, l 47.

[429] T 1-58 ll 24-25.

[430] T 1-58, ll 30 to T 1-59, l 1.

[431] ARB, page 3572.

[432] T 1-59, ll 3-6.

[433] ARB, page 3574.

[434] T 1-59, ll 22-28.

[435] T 22-15, ll 37-40, ARB, page 6589.

[436] T 1-69, l 37 to T 1-70, l 13, and Ms Kelsey's reply submissions, para. 44.

[437] Primary Decision (n 1) [363], [465], [643] and [695].

[438] This was evidence of Cr Pidgeon at ARB, page 3123, of Cr Swenson at ARB, page 3207, of Cr Smith at ARB, page 3304, of Cr Dalley at ARB, page 3436, of Cr Schwarz at ARB, page 3809, of Cr Lutton at ARB, page 2892, and of Cr Breene at ARB, pages 3779-3780.

[439] T 1-70, ll 13-14.

[440] The Councillors' submissions, para. 61.

[441] Footnotes omitted.

[442] T 1-44, l 33 to T 1-50, l 5.

[443] Ms Kelsey's amended outline of closing submissions, para. 1.8 (x) and (y), ARB, page 4556.

[444] T 1-50, ll 7-13. A similar submission was made at T 1-69, ll 26-35.

[445] Ms Kelsey's amended outline of closing submissions, para. 1.8, (bb), ARB, page 4557.

[446] Primary Decision (n 1), para. [271].

[447] The Councillors' submissions, para. 92.

[448] Ms Kelsey's reply submissions, paragraph. 61.

[449] The Councillors' submissions, para. 91.

[450] Ms Kelsey's reply submissions, para. 59.

[451] Ms Kelsey's reply submissions, para. 60.

[452] T 7-57, ll 18-26, ARB, page 5610.

[453] The Councillors' submissions, para. 93.

[454] The Councillors' submissions, para. 94.

[455] T 12-101, ll 8-20, ARB, page 6159.

[456] Ms Kelsey's amended outline of closing submissions, para. 3.146, ARB, page 4617.

[457] Ms Kelsey's amended outline of closing submissions, paras. 4.319-4.322, ARB, page 4669.

[458] Footnotes omitted.

[459] The affidavit of Darren Ross Power sworn on 14 March 2018, para. 154, ARB, page 1968.

[460] Ms Kelsey's principal submissions, paras. 110-113.

[461] Footnotes omitted.

[462] The Councillors' submissions, paras, 98-99.

[463] T 12-101, ll 22-29, ARB, page 6159.

[464] T 1-75, ll 12-16.

[465] T 1-74, l 15 to T 1-75, l 1.

[466] Primary Decision, (n 1), paras. [455]-[458].

[467] Namely:

•the performance review meeting on 10 October 2017 about Ms Kelsey;

•on 12 October 2017, Ms Kelsey making the Council Complaint  (which was by way of a letter to the Council from Ms Kelsey's then solicitors and which included allegations that Mayor Smith was intending to retaliate against her for unlawful reasons), the CCC Referral and, on 17 October 2017, the s 176B Complaint;

•Ms Kelsey commencing the QIRC proceedings on 1 December 2017 and, on 1 February 2018, Ms Kelsey obtaining an order from the Commission that Mayor Smith was prohibited from taking part in any resolution by the Council about her employment;

•on 5 February 2018, the CCC writing to each councillor informing them of the offences that would be committed in victimising a person who discloses certain information to the CCC in the performance of its function, and of the offences committed in taking reprisal action against a person who had made a PID;

•on  6 February 2018, Ms Kelsey's (then) lawyers writing to the Council and the councillors (through the Council's lawyers) asserting that if a councillor voted for Ms Kelsey's termination, then they would have to individually justify the reason for that decision '…when the matter comes to trial' and that the councillors who did vote to terminate Ms Kelsey's employment may be joined to her proceeding alleging they breached the PID Act and the IR Act as individuals (ARB, pages 1002-1005); and

•the legal advice all the councillors received (other than Mayor Smith) on 7 February 2018 about the forthcoming vote on the two motions concerning Ms Kelsey's employment.

[468] Citations omitted. Emphasis added.

[469] ARB, page 3531.

[470] ARB, page 3530.

[471] ARB, page 3529.

[472] ARB, pages 3527-3528.

[473] ARB, page 3527.

[474] ARB, page 3529.

[475] Ms Kelsey's principal submissions, para. 117.

[476] Ms Kelsey's principal submissions, para. 120.

[477] T 1-72, ll 35-38.

[478] Ms Kelsey's principal submissions, para. 120.

[479] Ms Kelsey's reply submissions, paras. 68-69.

[480] T 1-72, l 42 to T 1-73, l 7.

[481] T 12-95, ll 4-29, ARB, page 6153.

[482] T 1-73, ll 14-22.

[483] T 3-50, l 36 to 3-53, l 36.

[484] The Councillors' submissions, paras. 104-105.

[485] T 3-6, ll 30-49.

[486] ARB, pages 3703-3704.

[487] T 12-93, l 37 to T 12-94, l 36, ARB, pages 6151-6152.

[488] Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186, [27] (Ipp JA, Mason P at [1] and Tobias J at [126] agreeing), Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39, [34] (Keane JA, McMurdo J at [64] and Douglas J at [65] agreeing) and TechnologyOne (n 209), [176].

[489] Primary Decision (n 1) for example, Cr Dalley at [426]-[430] and [450]-[451], Cr Breene at [723], Cr  Lutton at [586] and [610], Cr  Swenson at [570], [575] and [577], Cr Pidgeon at [529]-[530], and generally at [805], second sentence.

[490] Earthline (n 159), approved in Fox v Percy (n 258), [23].

[491] Citations omitted.

[492] [2022] FCAFC 155; (2022) 318 IR 148 (Katzmann, Charlesworth and O'Sullivan JJ).

[493] Footnotes omitted.

[494] Ms Kelsey's principal submissions, para. 123 and Ms Kelsey's reply submissions, para. 73.

[495] My emphasis.

[496] T 11-50, 1 39 to T 11-51, l 8, ARB, pages 5983-5984.

[497] The Councillors' submissions, paras. 108-109 and T 3-7, ll 42-47.

[498] T 1-76, l 39 to T 1-77, l 16.

[499] T 1-77, ll 21-24.

[500] Ms Kelsey's reply submissions, paras. 70-71.

[501] Ms Kelsey's reply submissions, paras. 72-75.

[502] In Cr Dalley's affidavit she used the word '… miscomprehension'.

[503] T 11-49, l 37 to T 11-50, l 37, ARB, pages 5982-5983.

[504] Citations omitted.

[505] Ms Kelsey's principal submissions, para. 124.

[506] T 12-62, ll 15-35, ARB, page 6120.

[507] The Councillors' submissions, para. 109.

[508] Para. 307b., ARB, page 3469.

[509] T 12-63, ll 7-27, ARB, page 6121.

[510] The Councillors' submissions, para. 110.

[511] T 12-50, l 9 to T 12-52, l 25, ARB, pages 6108-6110.

[512] T 12-52, ll 12-25, ARB, page 6110.

[513] Paragraphs [209]-[212], ARB, page 3457.

[514] Paragraphs [214]-[215], ARB, page 3458.

[515] T 12-58, l 43 to T 12-59, l 9, ARB, pages 6116-6117.

[516] Footnotes omitted.

[517] Ms Kelsey's principal submissions, para. 126.

[518] Footnotes omitted.

[519] Ms Kelsey's amended outline of closing submissions, paras. 3.85-3.86, ARB, pages 4601-4603.

[520] Citations omitted.

[521] Ms Kelsey's principal submissions, paras. 127-128.

[522] Footnote omitted.

[523] The Councillors' submissions, para.  113.

[524] ARB, page 4660.

[525] Ms Kelsey's amended outline of closing submissions, para. 4.268, ARB, page 4661.

[526] Emphasis added.

[527] Ms Kelsey's principal submissions, paras. 129-131.

[528] The Councillors' submissions, para. 114.

[529] In fact the transcript reference cited by Ms Kelsey in her closing written submissions (T 13-36, l 35, ARB, page 6216), of Cr Breene's concession about seating arrangements, was not about seating arrangements but was in fact about Ms Kelsey winking at Cr McIntosh.

[530] Ms Kelsey's principal submissions, para. 132.

[531] Ms Kelsey's amended outline of closing submissions, paras. 4.345-4.365, ARB, pages 4674-4677.

[532] Ms Kelsey's principal submissions, para. 133.

[533] Ms Kelsey's principal submissions, para. 134.

[534] The Councillors' submissions, para. 118.

[535] Ms Kelsey's principal submissions, para. 135.

[536] The Councillors' submissions, para. 119.

[537] T 14-44, ll 46-47, ARB, page 6325.

[538] Ms Kelsey's principal submissions, para. 135.

[539] Footnote omitted.

[540] Ms Kelsey's principal submissions, para. 136.

[541] Ms Kelsey's principal submissions, para. 136.

[542] The Councillors' submissions, paras. 122-123.

[543] Ms Kelsey's principal submissions, para. 136.

[544] Ms Kelsey's principal submissions, para. 136.

[545] The Councillors' submissions, para. 124.

[546] Ms Kelsey's principal submissions, para. 137.

[547] Ms Kelsey's principal submissions, para. 137.

[548] Footnotes omitted.

[549] The Councillors' submissions, para. 125.

[550] The Councillors' submissions, para. 127.

[551] Cr Dalley's affidavit sworn on 18 April 2018, para. 233, ARB, page 3460.

[552] Cr Lutton's affidavit sworn on 11 April 2018, para. 111, ARB, page 2855.

[553] T 7-68, ll 18-23, ARB, page 5621.

[554] The Councillors' submissions, para. 127.

[555] The Councillors' submissions, para. 128.

[556] Footnote omitted.

[557] Ms Kelsey's submissions in reply, para. 83 (emphasis in the original).

[558] The Councillors' submissions, paras. 130-132 and T 3-11, l 37 to T 3-13, l 41.

[559] Paragraphs 104-110, ARB, page 3217.

[560] ARB, pages 3148-3149.

[561] Footnotes omitted.

[562] Footnotes omitted.

[563] T 8-21, ll 3-18, ARB, page 5669.

[564] Ms Kelsey's principal submissions, paras. 142-144.

[565] The Councillors' submissions, paras. 133-135.

[566] T 8-34, l 17, ARB, page 5682.

[567] T 8-34, l 27 to T 8-38, l 27, ARB, pages 5682-5686.

[568] T 8-38, ll 29-41, ARB, page 5686.

[569] Ms Kelsey's reply submissions, para. 85.

[570] Ms Kelsey's principal submissions, para. 145.

[571] Emphasis in Ms Kelsey's principal submissions.

[572] In paragraph [355] of the Primary Decision, the Vice President (footnote omitted) stated:

[355] In referring to the receipt of the PID, Cr Dalley told the Commission that she was upset, not by the PID itself, but by the 'manner it was delivered'.

[573] Ms Kelsey's principal submissions, paras. 146-147.

[574] The Councillors' submissions, paras. 137-139.

[575] T 3-14, l 33 to T 3-15, l 25.

[576] Ms Kelsey's reply submissions, paras. 87-89.

[577] Ms Kelsey's principal submissions, para. 149.

[578] Ms Kelsey's principal submissions, para. 150.

[579] The Council's submissions, paras. 160-161.

[580] The Councillors' submission, paras. 141-142.

[581] The Councillors' submissions, para. 144.

[582] The Council's submissions, para. 162.

[583] Ms Kelsey's principal submissions, paras. 38-39.

[584] Referring to TechnologyOne (n 209), [23].

[585] Referring to TechnologyOne Ibid, [98].

[586] Which referred to paragraph [803] of the Primary Decision.

[587] Ms Kelsey's principal submissions, paras. 30-31.

[588] T 5-49, l 23 to T 5-50, l 5, ARB, pages 5397-5398.

[589] T 5-50, l 33 to T 5-51, l 16, ARB, pages 5398-5399.

[590] Ms Kelsey's principal submissions, para. 32.

[591] T 5-82, l 40 to T 5-83, l 7, ARB, pages 5430-5431.

[592] Ms Kelsey's principal submissions, para. 33.

[593] Ms Kelsey's principal submissions, para. 34.

[594] Ms Kelsey's reply submissions, para. 18.

[595] Generally at T 1-28, l 39 to T 1-30, l 48.

[596] T 5-50, l 42-45, ARB, page 5398.

[597] T 5-51, ll 2-4, ARB, page 5399.

[598] T 5-82, l 40 to T 5-84, l 2, ARB, pages 5430-5432.

[599] Exhibit 93, ARB, pages 3424-3426.

[600] The Councillors' submissions, para. 40.

[601] The Councillors submissions, paras. 27-30.

[602] The Council's submissions, paras. 69-73.

[603] Ms Kelsey's principal submissions, para. 40.

[604] TechnologyOne (n 209), [16].

[605] TechnologyOne (n 209), [177].

[606] [2020] FCAFC 204; (2020) 281 FCR 421 ('Cummins').

[607] Ms Kelsey's reply submissions, para. 11.

[608] Cummins (n 606) [116].

[609] Cummins (n 606) [111].

[610] Ibid [105].

[611] Barclay (n 182), [140].

[612] The Council's submissions, para. 94.

[613] Kodak (n 153).

[614] Ibid [31].

[615] Ibid [32].

[616] Ibid [32] and [38].

[617] Proposed ground of appeal 26 contends that the Vice President erred in fact by failing to consider or adequately consider the matters in grounds 4 to 10 in determining the Councillors' reasons for their vote. Proposed ground of appeal 4(h) is that the Vice President failed to provide adequate reasons as to how his Honour took account of Cr Dalley's change in her demeanour and views of Ms Kelsey immediately prior and after the lodgement of the PID, which was potentially adverse Cr Dalley's credit.   

[618] ARB, pages 4111-4423.

[619] ARB, pages 500-524.

[620] T 5-51, ll 5-6, ARB 5399.

[621] T 1-30, ll 17-24.

[622] T 1-30, ll 25-28.

[623] ARB, pages 1002-1005.

[624] The Council's submissions, para. 79.

[625] ARB, pages 585-587.

[626] T 1-21, ll 20-30.

[627] ARB, pages 602-604.

[628] T 1-22, ll 1-19.

[629] T 1-24, ll 20-24.

[630] Ms Kelsey's principal submissions, para. 35.

[631] T 1-27, l 43 to T 1-28, l 33.

[632] T 1-25, l 1 to T 1-29, l 3.

[633] The Councillors' submissions, para. 31.

[634] T 1-28, ll 3-4.

[635] T 1-28, ll 25-26.

[636] Indeed, Ms Hunter concluded, among other matters, that: 'Some Councillors reiterated concerns that the CEO needed to develop her political nous, continue to build her relationship with the Mayor, and ensure that any future changes were based on greater levels of consultation with Council.', ARB, page 773.

[637] T 1-22, 47 to T 1-26, l 4.

[638] ARB, page 785.

[639] T 1-26, ll 12-18.

[640] The Council's submissions, para. 81.

[641] T 2-20, l 18 to T 2-22, l 8.

[642] [2021] FCA 873; (2021) 308 IR 244, [6], [63], [64], [104] and [282]-[288].

[643] T 2-22, ll 13-17.

[644] T 2-23, ll 41-45.

[645] Earthline (n 159).

[646] T 2-22, l 36 to T 2-23, l 15.

[647] T 2-23, ll 20-27.

[648] The following paragraphs references are to the Primary Decision (n 1):

•WhatsApp communications (Cr Dalley [436]-[438] and [448]-[449], Cr Swenson [575]-[580],  Cr Pidgeon [531]-[534] and Cr Breene [733] );

•Relay for Life (Cr Dalley [373]-[378], Cr Lutton  [595]-[599] and [601],  Cr Swenson [541]-[542], Cr Pidgeon [515], Cr Schwarz [640]-[643] and Cr Breene [719], [726] and [729]);

•USA Delegation (Cr Dalley [405], Cr Swenson  [555]-[558], Cr Schwarz [663]-[667] and Cr Breene [705]-[706]);

•ARGs (Cr Dalley [398]-[401], Cr Lutton [589]-[591] and [600], Cr Swenson [563]-[564], Cr Smith [488]-[489], Cr Schwarz [639] and Cr Breene [707-[708]);

•Committee names and structures (Cr Dalley [406]-[407], Cr Lutton [610]-[611], Cr Swenson [565],  Cr Smith [490]-[492], Cr Schwarz [655]-[657] and Cr Breene [709]-[711]);

•Councillor complaints (Cr Smith [484]-[485], Cr Pidgeon [520] and Cr Schwarz [674]);

•Budget experience and strategy (Cr Lutton [612], Cr Smith [467]-[468], [497]-[498] and [503]-[505], Cr Pidgeon [521] and [537] and Cr Breene [700]);

•Budget meetings in December 2017 and January 2018 (Cr Lutton [612], Cr Schwarz [672] and Cr Breene [713]); and

•Committee seating (Cr Dalley [412]-[413], Cr Lutton [605]-[607], Cr Swenson [559]-[562], Cr Pidgeon [522], Cr Schwarz [669]-[671] and Cr Breene [732]).

[649] Primary Decision (n 1), paras. [777]-[784].

[650] Citations omitted.

[651] Ms Kelsey's principal submissions, para. 162.

[652] Ms Kelsey's reply submissions, paras. 91-92.

[653] Ms Kelsey's reply submissions, para. 95. Emphasis in Ms Kelsey's submissions. The decision of Katzmann J in  Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201, [254] was cited for that last proposition in paragraph [727] above.

[654] T 3-17, ll 31-34.

[655] T 3-17, ll 35-40.

[656] T 3-17, l 42 to T 3-18, l 31.

[657] T 3-18, ll 33-40.

[658] T 3-18, ll 42-46. See the application for final relief, section 4, paras. 30.5, 30.10, 30.15, 30.20, 30.25, 30.30, and 30.35, ARB, pages 357-361.

[659] Browne v Dunn (n 126).

[660] Ms Kelsey's principal submissions, para. 170.

[661] In fact, this paragraph was a summary of part of the Councillors' argument about the relevant failure to cross-examine.

[662] In fact, this paragraph recites a submission made by the Councillors.

[663] Ms Kelsey's principal submissions, para. 171.

[664] Ms Kelsey's principal submissions, paras. 172-173.

[665] T 2-38, ll 10-42.

[666] [2011] HCA 11; (2011) 243 CLR 361, [67], [70]-[73] and [75] (Heydon, Crennan and Bell JJ).

[667] The Councillors' final written submissions before the Commission, ARB, pages 4889-4891, paras. 274-276.

[668] Citing Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34, [303]              (R.D. Nicholson J).

[669] The Councillors' final written submissions before the Commission, ARB, page 4891, para. 277.

[670] The Councillors' final written submissions before the Commission, ARB, pages 4891-4892, paras. 277-278.

[671] [2009] VSCA 284; (2009) 26 VR 335.

[672] Redlich and Bongiorno JJA and Hansen AJA.

[673] Citations omitted.

[674] The Councillors' final written submissions before the Commission, ARB, page 4892.

[675] Ms Kelsey's reply submissions, paras. 97-99.

[676] T 2-40, ll 1-2.

[677] The Councillors' submissions, paras. 157-159.

[678] The Councillors' submissions, para. 160.

[679] The Councillors' submissions, para. 160.

[680] The Councillors' submissions, para. 161.

[681] Footnotes omitted. Emphasis in the original.

[682] [1983] 1 NSWLR 1, 16.

[683] Payless Superbarn (NSW) Pty Ltd V O'Gara (1990) 19 NSWLR 551, 556 (Clarke JA, Priestley JA at 552 and Meagher JA at 560 agreeing).

[684] Ibid 556.

[685] Paragraphs [299], [332], [625], [691], [763], [793], [817] and [820] of the Primary Decision (n 1).

[686] Footnote omitted.

[687] Ms Kelsey's reply submissions, para. 98.

[688] Ms Kelsey's reply submissions, para. 99.

[689] [2013] FCA 1342.

[690] Ibid [493].

[691] Ms Kelsey's amended outline of closing submissions, para. 1.7, ARB, page 4552.

[692] [2024] FCA 171.

[693] T 2-43, ll 3-32.

[694] T 2-40, l 38 to T 2-41, l 12.

[695] T 2-41, ll 12-15.

[696] T 3-20.

[697] Ms Kelsey's amended outline of closing submissions, including at para. 4.134, ARB, page 4642 (submissions made about Cr Pidgeon) and at para. 4.337, ARB page 4673 (submissions made about Cr Dalley).

[698] T 3-21, ll 8-12.

[699] T 3-21, ll 12-15.

Close

Editorial Notes

  • Published Case Name:

    Kelsey v Logan City Council & Ors (No. 5)

  • Shortened Case Name:

    Kelsey v Logan City Council (No. 5)

  • MNC:

    [2024] ICQ 15

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    05 Aug 2024

Appeal Status

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

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Cite 1 - (2020) 281 FCR 421
Cite 2 - (2020) 281 FCR 421
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
2 citations
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Cite 1 - [2020] FCAFC 204
Cite 2 - [2020] FCAFC 204
Curwen v Vanbreck Pty Ltd (2009) 26 VR 335
4 citations
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Cite 1 - (2009) 26 VR 335
Cite 2 - (2009) 26 VR 335
Cite 3 - (2009) 26 VR 335
Cite 4 - (2009) 26 VR 335
Curwen v Vanbreck Pty Ltd [2009] VSCA 284
2 citations
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Cite 1 - [2009] VSCA 284
Cite 2 - [2009] VSCA 284
De Winter v De Winter (1979) 23 ALR 211
2 citations
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Cite 1 - (1979) 23 ALR 211
Cite 2 - (1979) 23 ALR 211
DL v R (2018) 266 CLR 1
2 citations
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Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
DL v The Queen [2018] HCA 26
2 citations
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Cite 1 - [2018] HCA 26
Cite 2 - [2018] HCA 26
Doerr v Gardiner [2023] QCA 160
2 citations
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Cite 1 - [2023] QCA 160
Cite 2 - [2023] QCA 160
Doyles Construction Lawyers v Serratore (2002) 169 QGIG 196
1 citation
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Cite 1 - (2002) 169 QGIG 196
DQM18 v Minister for Home Affairs [2020] FCAFC 110
2 citations
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Cite 1 - [2020] FCAFC 110
Cite 2 - [2020] FCAFC 110
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
2 citations
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Cite 1 - (2020) 278 FCR 529
Cite 2 - (2020) 278 FCR 529
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
3 citations
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Cite 1 - (2001) 129 IR 251
Cite 2 - (2001) 129 IR 251
Cite 3 - (2001) 129 IR 251
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
1 citation
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Cite 1 - [2015] FCA 17
Evans v State of Western Australia [1997] FCA 741
1 citation
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Cite 1 - [1997] FCA 741
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCA FC 189
2 citations
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Cite 1 - [2004] FCA FC 189
Cite 2 - [2004] FCA FC 189
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
2 citations
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Cite 1 - (2004) 140 FCR 17
Cite 2 - (2004) 140 FCR 17
Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201
2 citations
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Cite 1 - [2023] FCA 201
Cite 2 - [2023] FCA 201
Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112
2 citations
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Cite 1 - [2009] VSCA 112
Cite 2 - [2009] VSCA 112
Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 178
2 citations
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Cite 1 - [2009] VSCA 178
Cite 2 - [2009] VSCA 178
Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738
2 citations
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Cite 1 - [2017] VSC 738
Cite 2 - [2017] VSC 738
Fox v Percy (2003) 214 CLR 118
3 citations
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Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
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Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
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Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Gibbs v Palmerston Town Council [1987] FCA 732
2 citations
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Cite 1 - [1987] FCA 732
Cite 2 - [1987] FCA 732
Gipp v R (1998) 194 CLR 106
2 citations
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Cite 1 - (1998) 194 CLR 106
Cite 2 - (1998) 194 CLR 106
Gipp v The Queen [1998] HCA 21
2 citations
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Cite 1 - [1998] HCA 21
Cite 2 - [1998] HCA 21
Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26
2 citations
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Cite 1 - [2024] FCAFC 26
Cite 2 - [2024] FCAFC 26
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
2 citations
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Cite 1 - [2006] NSWCA 187
Cite 2 - [2006] NSWCA 187
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
2 citations
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Cite 1 - (2006) 66 NSWLR 186
Cite 2 - (2006) 66 NSWLR 186
H v P [2011] WASCA 78
2 citations
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Cite 1 - [2011] WASCA 78
Cite 2 - [2011] WASCA 78
Hamod v New South Wales [2011] NSWCA 375
2 citations
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Cite 1 - [2011] NSWCA 375
Cite 2 - [2011] NSWCA 375
Harvey v State of Queensland (Queensland Health) [2024] ICQ 10
2 citations
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Cite 1 - [2024] ICQ 10
Cite 2 - [2024] ICQ 10
He v Aloe & Co Pty Ltd [2006] VSC 150
2 citations
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Cite 1 - [2006] VSC 150
Cite 2 - [2006] VSC 150
Henning v State of Queensland (Queensland Treasury) [2023] ICQ 9
2 citations
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Cite 1 - [2023] ICQ 9
Cite 2 - [2023] ICQ 9
Holloway v McFeeters (1956) 94 CLR 470
1 citation
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Cite 1 - (1956) 94 CLR 470
Hope v Bathurst City Council (1980) 144 CLR 1
2 citations
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Cite 1 - (1980) 144 CLR 1
Cite 2 - (1980) 144 CLR 1
Hope v Bathurst City Council [1980] HCA 16
2 citations
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Cite 1 - [1980] HCA 16
Cite 2 - [1980] HCA 16
Humphrey v Allied Express Transport Pty Ltd [2002] QIRC 21
1 citation
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Cite 1 - [2002] QIRC 21
J Hutchinson v Australian Competition and Consumer Commission [2024] FCAFC 18
2 citations
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Cite 1 - [2024] FCAFC 18
Cite 2 - [2024] FCAFC 18
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
2 citations
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Cite 1 - [2022] FCAFC 75
Cite 2 - [2022] FCAFC 75
Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284
2 citations
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Cite 1 - (2022) 292 FCR 284
Cite 2 - (2022) 292 FCR 284
Jolly v Sharma [2024] FCA 171
2 citations
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Cite 1 - [2024] FCA 171
Cite 2 - [2024] FCA 171
Jones v The Commonwealth [2023] HCA 34
3 citations
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Cite 1 - [2023] HCA 34
Cite 2 - [2023] HCA 34
Cite 3 - [2023] HCA 34
Kelsey v Logan City Council [2022] QCA 238
3 citations
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Cite 1 - [2022] QCA 238
Cite 2 - [2022] QCA 238
Cite 3 - [2022] QCA 238
Kelsey v Logan City Council (No 2) [2022] ICQ 13
4 citations
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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
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Cite 1 - [2022] ICQ 21
Cite 2 - [2022] ICQ 21
Kelsey v Logan City Council (No 9) [2022] QIRC 342
2 citations
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Cite 1 - [2022] QIRC 342
Cite 2 - [2022] QIRC 342
Kelsey v Logan City Council (No.8) [2021] QIRC 114
2 citations
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Cite 1 - [2021] QIRC 114
Cite 2 - [2021] QIRC 114
Kelsey v Logan City Council and Another [2018] QIRC 9
2 citations
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Cite 1 - [2018] QIRC 9
Cite 2 - [2018] QIRC 9
Khiani v Australian Bureau of Statistics [2011] FCA FC 109
1 citation
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Cite 1 - [2011] FCA FC 109
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
2 citations
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Cite 1 - [2011] HCA 11
Cite 2 - [2011] HCA 11
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
2 citations
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Cite 1 - (2011) 243 CLR 361
Cite 2 - (2011) 243 CLR 361
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
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Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Lacey v The Attorney-General of Queensland [2011] HCA 10
2 citations
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Cite 1 - [2011] HCA 10
Cite 2 - [2011] HCA 10
Leahy v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098
1 citation
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Cite 1 - [2017] FCA 1098
Lee v Lee [2019] HCA 28
2 citations
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Cite 1 - [2019] HCA 28
Cite 2 - [2019] HCA 28
Lee v Lee (2019) 266 CLR 129
2 citations
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Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Lord Robson, Richard Evans & Co. Ltd. v Astley (1911) AC 674
1 citation
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Cite 1 - (1911) AC 674
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899
2 citations
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Cite 1 - [1999] FCA 899
Cite 2 - [1999] FCA 899
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
2 citations
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Cite 1 - (1999) 93 FCR 34
Cite 2 - (1999) 93 FCR 34
McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7
2 citations
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Cite 1 - [2019] ICQ 7
Cite 2 - [2019] ICQ 7
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
2 citations
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Cite 1 - [2024] FCAFC 20
Cite 2 - [2024] FCAFC 20
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
2 citations
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Cite 1 - (2015) 238 FCR 273
Cite 2 - (2015) 238 FCR 273
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
2 citations
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Cite 1 - [2015] FCAFC 157
Cite 2 - [2015] FCAFC 157
Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
1 citation
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Cite 1 - [2014] HCA 41
Minister for Immigration and Border Protection v SZVFW (2018) CLR 541
2 citations
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Cite 1 - (2018) CLR 541
Cite 2 - (2018) CLR 541
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
2 citations
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Cite 1 - [2018] HCA 30
Cite 2 - [2018] HCA 30
Misfud v Campbell (1991) 21 NSWLR 725
2 citations
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Cite 1 - (1991) 21 NSWLR 725
Cite 2 - (1991) 21 NSWLR 725
Mitchelson v Mitchelson (1979) 37 FLR 289
1 citation
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Cite 1 - (1979) 37 FLR 289
Momcilovic v The Queen [2011] HCA 34
2 citations
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Cite 1 - [2011] HCA 34
Cite 2 - [2011] HCA 34
Momcilovic v The Queen (2011) 245 CLR 1
2 citations
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Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Monash Health v Singh [2023] FCAFC 166
2 citations
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Cite 1 - [2023] FCAFC 166
Cite 2 - [2023] FCAFC 166
Monie v Commonwealth (2005) 63 NSWLR 729
2 citations
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Cite 1 - (2005) 63 NSWLR 729
Cite 2 - (2005) 63 NSWLR 729
Monie v The Commonwealth [2005] NSWCA 25
2 citations
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Cite 1 - [2005] NSWCA 25
Cite 2 - [2005] NSWCA 25
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
2 citations
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Cite 1 - (2021) 273 CLR 506
Cite 2 - (2021) 273 CLR 506
MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
2 citations
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Cite 1 - [2021] HCA 17
Cite 2 - [2021] HCA 17
Nathanson v Minister for Home Affairs [2022] HCA 26
2 citations
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Cite 1 - [2022] HCA 26
Cite 2 - [2022] HCA 26
Nathanson v Minister for Home Affairs (2022) 403 ALR 398
2 citations
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Cite 1 - (2022) 403 ALR 398
Cite 2 - (2022) 403 ALR 398
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
2 citations
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Cite 1 - [2013] FCA 451
Cite 2 - [2013] FCA 451
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139
2 citations
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Cite 1 - (2013) 234 IR 139
Cite 2 - (2013) 234 IR 139
Nocton v Lord Ashburton (1914) AC 932
1 citation
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Cite 1 - (1914) AC 932
O'Sullivan v Farah [1989] HCA 61
3 citations
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Cite 1 - [1989] HCA 61
Cite 2 - [1989] HCA 61
Cite 3 - [1989] HCA 61
O'Sullivan v Farrer (1989) 168 CLR 210
2 citations
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Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Parsons v Serco Citizen Services Pty Limited [2024] FCA 754
2 citations
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Cite 1 - [2024] FCA 754
Cite 2 - [2024] FCA 754
Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551
2 citations
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Cite 1 - (1990) 19 NSWLR 551
Cite 2 - (1990) 19 NSWLR 551
Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24
1 citation
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Cite 1 - [2013] HCA 24
Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211
2 citations
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Cite 1 - (2005) 220 ALR 211
Cite 2 - (2005) 220 ALR 211
Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131
2 citations
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Cite 1 - [2005] FCAFC 131
Cite 2 - [2005] FCAFC 131
R v District Court ex parte White (1966) 116 CLR 644
1 citation
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Cite 1 - (1966) 116 CLR 644
Rail Authority of NSW v Earthline Construction Pty Limited (1999) H.C.A.3
2 citations
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Cite 1 - (1999) H.C.A.3
Cite 2 - (1999) H.C.A.3
Re Queensland Electricity Commission & Ors; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1
2 citations
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Cite 1 - (1987) 72 ALR 1
Cite 2 - (1987) 72 ALR 1
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27
2 citations
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Cite 1 - [1987] HCA 27
Cite 2 - [1987] HCA 27
RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310
2 citations
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Cite 1 - [2023] FCA 1310
Cite 2 - [2023] FCA 1310
Saville v Q-Comp (2007) 185 QGIG 243
2 citations
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Cite 1 - (2007) 185 QGIG 243
Cite 2 - (2007) 185 QGIG 243
Saville v Q-COMP & the State of Queensland (acting through the Department of Corrective Services) [2007] ICQ 28
2 citations
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Cite 1 - [2007] ICQ 28
Cite 2 - [2007] ICQ 28
Serpanos v Commonwealth of Australia [2022] FCA 1226
2 citations
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Cite 1 - [2022] FCA 1226
Cite 2 - [2022] FCA 1226
Sharman v Boshell [2005] NSWCA 476
2 citations
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Cite 1 - [2005] NSWCA 476
Cite 2 - [2005] NSWCA 476
Sica v Brophy [2020] NSWCA 181
1 citation
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Cite 1 - [2020] NSWCA 181
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
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Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
2 citations
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Cite 1 - (1999) 73 ALJR 306
Cite 2 - (1999) 73 ALJR 306
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
2 citations
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Cite 1 - (1999) 160 ALR 588
Cite 2 - (1999) 160 ALR 588
Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd & Anor [2002] FCAFC 157
2 citations
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Cite 1 - [2002] FCAFC 157
Cite 2 - [2002] FCAFC 157
Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another (2002) 234 FCR 549
2 citations
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Cite 1 - (2002) 234 FCR 549
Cite 2 - (2002) 234 FCR 549
Tattsbet Limited v Morrow [2015] FCAFC 62
2 citations
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Cite 1 - [2015] FCAFC 62
Cite 2 - [2015] FCAFC 62
Tattsbet Ltd v Morrow (2015) 233 FCR 46
2 citations
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Cite 1 - (2015) 233 FCR 46
Cite 2 - (2015) 233 FCR 46
TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
2 citations
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Cite 1 - [2021] FCAFC 137
Cite 2 - [2021] FCAFC 137
The Bell Group Ltd (in liq) v Westpac Banking Corporation [2008] WASC 239
2 citations
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Cite 1 - [2008] WASC 239
Cite 2 - [2008] WASC 239
The Electrical Trades Union of Employees Queensland v United Group Limited [2007] QIRC 88
2 citations
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Cite 1 - [2007] QIRC 88
Cite 2 - [2007] QIRC 88
Transport Accident Commission v Campbell (2015) 69 MVR 410
2 citations
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Cite 1 - (2015) 69 MVR 410
Cite 2 - (2015) 69 MVR 410
Transport Accident Commission v Campbell [2015] VSCA 7
2 citations
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Cite 1 - [2015] VSCA 7
Cite 2 - [2015] VSCA 7
Transport Workers ’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244
3 citations
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Cite 1 - (2021) 308 IR 244
Cite 2 - (2021) 308 IR 244
Cite 3 - (2021) 308 IR 244
Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873
2 citations
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Cite 1 - [2021] FCA 873
Cite 2 - [2021] FCA 873
Trustee of the Property of Cummins v Cummins (2006) 227 CLR 278
1 citation
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Cite 1 - (2006) 227 CLR 278
Vetter v Lake Macquarie CC (2001) 202 CLR 439
2 citations
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Cite 1 - (2001) 202 CLR 439
Cite 2 - (2001) 202 CLR 439
Vetter v Lake Macquarie CC [2001] HCA 12
2 citations
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Cite 1 - [2001] HCA 12
Cite 2 - [2001] HCA 12
Walton v Gardiner (1993) 177 CLR 378
2 citations
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Cite 1 - (1993) 177 CLR 378
Cite 2 - (1993) 177 CLR 378
Walton v Gardiner [1993] HCA 77
2 citations
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Cite 1 - [1993] HCA 77
Cite 2 - [1993] HCA 77
Waterford v The Commonwealth (1987) 163 CLR 54
2 citations
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Cite 1 - (1987) 163 CLR 54
Cite 2 - (1987) 163 CLR 54
Waterford v The Commonwealth [1987] HCA 25
2 citations
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Cite 1 - [1987] HCA 25
Cite 2 - [1987] HCA 25
Wong v National Australia Bank (2022) 318 IR 148
2 citations
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Cite 1 - (2022) 318 IR 148
Cite 2 - (2022) 318 IR 148
Wong v National Australia Bank Limited [2021] FCA 671
3 citations
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Cite 1 - [2021] FCA 671
Cite 2 - [2021] FCA 671
Cite 3 - [2021] FCA 671
Wong v National Australia Bank Ltd [2022] FCAFC 155
2 citations
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Cite 1 - [2022] FCAFC 155
Cite 2 - [2022] FCAFC 155
Workers' Compensation Regulator v Langerak [2020] ICQ 2
2 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King [2024] FCA 454
2 citations
Jump To
Cite 1 - [2024] FCA 454
Cite 2 - [2024] FCA 454

Cases Citing

Case NameFull CitationFrequency
Kelsey v Logan City Council (No. 6) [2025] ICQ 22 citations
Rooke v Workers' Compensation Regulator [2024] ICQ 212 citations
1

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