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Mutonhori v Mount Isa City Council (No. 2)[2025] ICQ 16

Mutonhori v Mount Isa City Council (No. 2)[2025] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Mutonhori v Mount Isa City Council (No. 2) [2025] ICQ 016

PARTIES:

Mutonhori, Simon

(Appellant)

v

Mount Isa City Council

(Respondent)

CASE NO:

C/2024/35

PROCEEDING:

Application in existing proceedings 

DELIVERED ON:

2 September 2025 

HEARING DATE:

1 September 2025

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

The application for recusal filed by the Appellant on 22 July 2025 is dismissed.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the appellant filed an appeal in the Industrial Court of Queensland – where the respondent was granted leave to be legally represented in the appeal – where the appellant filed an appeal with the Court of Appeal of that decision – where the appeal with the Court of Appeal was dismissed – where the appeal in the Industrial Court was relisted – where the appellant filed a recusal application – where the appellant claims allegations of actual and apprehended bias – where the respondent objects to the application – whether a fair-minded lay observer might reasonably apprehend bias in the circumstances of these proceedings – application in existing proceedings dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 424

CASES:

Dunstan v Orr [2022] FCA 1006

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Mutonhori v Mount Isa City Council (No. 2) [2024] QIRC 240

Mutonhori v Mount Isa City Council [2025] ICQ 1

Mutonhori v Mount Isa City Council [2025] QCA 66

Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 213

Robertson v McDonald's Australia Limited [2023] ICQ 27

APPEARANCES:

Mr S. Mutonhori appeared on his own behalf 

Mr B. Meredith of Preston Law on behalf of the Respondent

Reasons for Decision

Introduction

  1. [1]
    The Appellant, Mr Simon Mutonhori, has filed an appeal with respect to a decision of the Queensland Industrial Relations Commission ('the Commission').[1]
  1. [2]
    In the course of this appeal, Mr Mutonhori has filed an application in existing proceedings, seeking orders that I recuse myself from these proceedings.
  1. [3]
    Following the hearing of the matter on 1 September 2025, the Court dismissed Mr Mutonhori's application for recusal. These are the reasons for that decision.

Relevant Background

  1. [4]
    The substantive proceeding is an appeal of a general protections decision which, inter alia, dismissed the Appellant's application for an extension of time. The orders of the Commission were as follows:
  1. The application for an extension of time to file that part of the application that relates to dismissal is refused.
  1. That part of the application that relates to dismissal is dismissed.
  1. That part of the application that relates to suspension from duties may proceed to further directions.[2]
  1. [5]
    The Appellant filed an appeal of the Commission's decision on 11 October 2024.
  1. [6]
    On 29 October 2024, a directions order was issued with respect to the filing of submissions with respect to the appeal. The appeal was subsequently listed to be heard on 24 January 2025.
  1. [7]
    On 18 December 2024, the Respondent sought leave to be legally represented.
  1. [8]
    On 23 January 2025, this Court issued a decision granting the Respondent leave to be legally represented.[3]
  1. [9]
    On 24 January 2025, at the hearing, Mr Mutonhori sought an adjournment to file an appeal of the decision granting the Respondent leave to be legally represented to the Court of Appeal.
  1. [10]
    An adjournment was granted to permit the Appellant to file an appeal with respect to the legal representation decision.
  1. [11]
    On 8 July 2025, the Respondent's legal representative wrote to the Industrial Registry stating that the appeal to the Court of Appeal was dismissed and that the Respondent sought a directions hearing to proceed with the appeal before this Court.
  1. [12]
    The appeal proceeding was listed for a telephone mention on 18 July 2025.
  1. [13]
    At the mention, the appeal was relisted for hearing on 1 September 2025.
  1. [14]
    On 22 July 2025, Mr Mutonhori filed an application in existing proceedings seeking that I recuse myself from hearing this appeal.
  1. [15]
    The Court issued directions with respect to the filing of submissions and material in respect of the Appellant's application for recusal. In accordance with those directions, the parties filed written submissions and the Appellant requested an oral hearing on 22 August 2025.
  1. [16]
    The oral hearing was listed for 1 September 2025.
  1. [17]
    The Industrial Registry wrote to the parties on 25 August 2025 advising that:

Dear Parties,

We refer to the above matter and the Appellant's email correspondence received at 9:57am this morning.

It is in the interest of all parties that the application for recusal be determined this week prior to the hearing of the appeal. However, despite the Appellant requesting an oral hearing, he states he is unavailable prior to Monday, 1 September 2025.

Consequently, the Court has determined to list the application for recusal at 9:00am on Monday, 1 September 2025.

Please be advised that the appeal remains listed for 10:00am on Monday, 1 September 2025 and will proceed depending on the determination of the application for recusal.  

An Amended Notice of Listing will be emailed shortly.[4]

  1. [18]
    At the outset of the hearing the parties were advised that, consistent with the correspondence on 25 August 2025, the Court would hear the recusal application, and if the recusal application was allowed then the appeal would be adjourned, however, if the recusal application was dismissed then the appeal would proceed.

The Recusal Application

  1. [19]
    Mr Mutonhori seeks that I recuse myself from hearing this appeal. In seeking this application, the Appellant's grounds of the recusal application are in the following terms:

This application is for the Deputy President Hartigan to recuse herself from hearing this matter on the grounds of actual and apprehended bias as outlined below.

1. The Judge released her decision for leave to represent the Respondent on the eve of a substantive hearing, 23 January 2025. The outcome of her decision released at 4pm the day before a critical substantive hearing the following morning at 10am, had material effect on the way the substantive hearing was going to be conducted. It had the effect of allowing the legal representative to appear in the hearing. The judge appeared at the substantive hearing the following morning geared up for a hearing with the Respondent's lawyer present, armed with the grant of leave issued a couple of hours earlier. By proceeding with the substantive hearing, effectively implementing her other decision issued a couple of hours earlier, the Deputy President did not factor in the standard time for parties to review her previous decision before commencement of the substantive hearing. This was a serious oversight by the learned Judge of the Deputy President's standing. It is a fundamental right of parties to be given sufficient time to review any decision of the Court and consider their options, including appeal rights before that decision is implemented. This did not happen in this case, and it demonstrates actual bias towards the Respondent's lawyer by the Deputy President.

2. In her decision to grant leave for legal representation, the Deputy President made a number of sinuations with no legal foundation. She did not explain the basis of those unsupported statements. First, she stated in passing that the Applicant had attempted to bring new evidence in his substantive application. The decision did not explain how the Deputy President came to that conclusion ahead of a substantive matter being heard. I contend that this unexplained and random statement in her decision inadvertently pre-empted the Deputy President's thoughts in the future outcome of the substantive matter which was to be heard the following morning before the same Judge. This statement shows prejudice over the potential outcome of my substantive matter. Given that it was the same judge to preside over the substantive matter, I couldn't reasonably have trust and confidence in her impartiality.

3. In the same decision, the Deputy President made several legally unsupported statements implying that the lawyer seeking leave did not breach any Court rules when he appeared in proceedings more than 6 months before his application for leave. However, the Deputy President went on to grant him 'another' leave despite claiming that he had been granted leave before and was properly constitute as such.

4. At the telephone mention conference hurriedly scheduled at the behest of the Respondent on 18 July, the Deputy President appeared combative, armed with the new date of the hearing without any consultation with me. When I told her I was busy with another matter in the same jurisdiction and therefore I was not able to persecute [sic] two matters at the same time in the same jurisdiction, she wouldn't listen and ordered that the hearing take place on her predetermined date anyway.

5. The Deputy President displayed obvious irritation with me and showed obvious bias in the way she conducted the application for leave and the unilateral fast-tracking the next hearing without consultation with me. For the reasons stated above I couldn't have trust and confidence that the Deputy Present will handle my case with Impartiality expected of judicial officers as I genuinely believe I have well-founded concerns against the Deputy President hearing my substantive matter.

  1. [20]
    For the purpose of the recusal application, Mr Mutonhori summarised his grounds into the following categories:
  1. significant procedural unfairness in the interlocutory decision of 23 January 2025 ('ground one');
  1. highly prejudicial and legally unsupported and unsubstantiated statements in the same decision ('ground two'); and
  1. unilateral reconvening of hearing, fixing dates without consultation with the Appellant ('ground three').
  1. [21]
    Before addressing the grounds relied on by Mr Mutonhori, it is convenient to consider the legislative provisions and legal principles relevant to an application for recusal.

Relevant Legislation and Legal Principles

  1. [22]
    Section 424 of the IR Act provides the power to the Industrial Court to give directions and make decisions in the following terms:

424  Jurisdiction and powers

  1. The court may—
  1. perform all functions and exercise all powers given to the court under this Act or another Act; and
  1. hear and decide, and give its opinion on, a matter referred to it by the commission; and
  1. hear and decide an offence against this Act, unless this Act provides otherwise; and
  1. hear and decide appeals from an industrial magistrate's decision in proceedings for—
    1. an offence against this Act; or
    2. recovery of damages, or other amounts, under this Act; and
  1. if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—
    1. the commission and magistrates exercise their jurisdictions according to law; and
    2. the commission and magistrates do not exceed their jurisdictions.
  1. In proceedings, the court may—
  1. make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
  1. give directions about the hearing of a matter.
  1. The court's jurisdiction is not limited, by implication, by a provision of this Act or another Act.
  1. The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.

Actual Bias

  1. [23]
    A determination as to actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[5] The onus of demonstrating actual bias lies upon the party asserting actual bias and it is a heavy onus.[6]
  1. [24]
    In Dunstan v Orr,[7] his Honour, Wigney J set out the principles concerning actual bias in the following terms:
  1. 63
    Actual bias "exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant". The question is not whether a decision-maker's mind is blank, or whether there is an "absence of any predisposition or inclination for or against an argument or conclusion"; rather, the "state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented".
  2. 64
    Actual bias is usually difficult to prove. It is also an allegation that "is not to be made lightly". It requires a subjective assessment of the state of mind of the judge in question. A "finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach". Courts have rarely found actual bias to exist, principally because "a reasonable apprehension of bias suffices to disqualify a judicial officer" and where "actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias".[8]

Apprehended Bias

  1. [25]
    The relevant legal principles with respect to apprehended bias have previously been considered by this Court,[9] in Robertson v McDonald's Australia Limited,[10] as follows:
  1. [25]
    In Ebner v Official Trustee in Bankruptcy the High Court held that apprehended bias will disqualify a judge from a case "if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
  1. [26]
    The test to be applied for determining whether a judge should be disqualified for apprehended bias, the High Court held, requires the adoption of a two-step process:

"First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."

  1. [27]
    In Parbery & Ors v QNI Metals Pty Ltd & Ors Bond J set out the following principles relevant to the consideration of the test:

…

  1. [31]
    The application of the test uses the touchstone of the "fair-minded lay observer" and that person's reasonable apprehension. The law contemplates the following in the application of that test:
  1. The fair-minded lay observer has attributed to him or her awareness of and a fair understanding of the nature of the decision, the context in which it was made, and the circumstances leading up to the decision.
  1. The fair-minded lay observer has attributed to him or her knowledge that the judge is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial, with the result that a conclusion that there is a reasonable apprehension that the judge might be biased should not be drawn lightly. The observer does not have attributed to him or her knowledge of the character or the ability of the particular judge concerned.
  1. The fair-minded lay observer does not have attributed to him or her a detailed knowledge of the law, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, taking into account the exigencies of modern litigation.
  1. [32]
    What is required for justice to be seen to be done is that it must be apparent to the fair-minded lay observer that the judge will bring to the resolution of the issues an impartial and unprejudiced mind which will decide the issues according to their factual and legal merits. If such an observer might reasonably apprehend that the judge might not do that, then a case of apprehended bias is established. But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.
  1. [33]
    Although the test is expressed in terms of a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind, it is also clear that the law requires that proposition to be "firmly established" before the judge should disqualify himself or herself. In British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, Gummow J14 at [71] to [72] made this observation (footnotes omitted):
  1. [71]
    To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:

"In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

  1. [72]
    The references in JRL to the phrase "firmly established" in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. …
  1. [34]
    The judge's ordinary duty to sit unless convinced otherwise was also discussed in the earlier decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [19] to [21]:
  1. [19]
    Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
  1. [20]
    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
  1. [21]
    It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.[11]

Ground One

  1. [26]
    Mr Mutonhori's submissions in respect of ground one are summarised as follows:
  1. that throughout the decision-making process, the Industrial Registry and the Court did not communicate or respond to his telephone calls and email correspondence;
  1. that the Industrial Registry kept him in the dark until the legal representation decision was "suddenly released late afternoon of the day before the substantive matter hearing";
  1. that the Court did not allow the parties the "usual entitlement to sufficient time to review a decision outcome before it is implemented";
  1. that the legal representation decision was "withheld from the usual publication requirements, and no explanation was provided to the parties";
  1. that this was a pattern of concealment of information and absence of transparency in the decision-making process";
  1. that this is "inconsistent with the open justice principles of the justice system which requires that all parties to a proceeding be fully informed of the proceedings through open sharing of all information and processes before the Court";
  1. that in contrast to himself, the Respondent's solicitor, Mr Meredith appeared to be well-informed with "inside information";
  1. that the Court "seems to give the Solicitor a go ahead to apply for legal costs against [the Appellant] for the adjourned hearing. This shows the Deputy President's irritation of my objection to proceed with the substantive hearing under the cloud of all that procedural unfairness";
  1. that the legal representation decision was "littered with factual errors and typos, citing wrong submissions and dates of submissions"; and
  1. that the Industrial Registry did not provide sufficient information on how to lodge an appeal in the Court of Appeal.
  1. [27]
    Mr Mutonhori does not engage with or make submissions with respect to the two-step process as first stated in Ebner v Official Trustee in Bankruptcy[12] ('Ebner'). In that regard, Mr Mutonhori fails to identify what is said that might lead me to decide the case other than on its legal and factual merits and to articulate the logical connection between the matter and the factual deviation from the course of deciding the case on its merits. On that basis alone, ground one does not establish a basis upon which I should recuse myself.
  1. [28]
    Further, and as noted above, Mr Mutonhori filed an appeal with respect to the legal representation decision to the Court of Appeal.
  1. [29]
    In his written submissions filed on 21 August 2025, Mr Mutonhori contends that the Court of Appeal did not dismiss his appeal as submitted by the Respondent, but rather, Mr Mutonhori voluntarily discontinued it after the mention.
  1. [30]
    Mr Mutonhori's appeal of the legal representation decision proceeded in the Court of Appeal. On 8 May 2025, an ex tempore decision of his Honour Bond JA was delivered in Mutonhori v Mount Isa City Council[13] with respect to the Respondent's application for security for costs of the appeal in the Court of Appeal. The application was allowed and the following orders issued:
  1. Pursuant to rule 772 of the Uniform Civil Procedure Rules 1999 (Qld), the appellant provide security for costs of the appeal in the sum of $23,100 in a form approved by the Registrar.
  1. The security be provided by 4pm on 22 May 2025.
  1. If in default of compliance with orders 1 and 2, the appeal is dismissed.
  1. The appellant pay the respondent's costs of the application on the standard basis.[14]
  1. [31]
    The effect of Order 3 is that if Mr Mutonhori was in default of compliance with Orders 1 and 2 then his appeal would be dismissed.
  1. [32]
    The purpose of the self-executing nature of Order 3 was referred to in his Honour's reasons as follows:

The fourth consideration concerns the combined issues of prospects and whether an order would stymie the appeal. Although the order undoubtedly would stymie the appeal, the prospects are such as to make it appropriate to make an order. Indeed, the prospects are so poor that I am persuaded, having regard to the authority of Toms v Fuller [2010] QCA 73, that it is appropriate to make the self-executing order that has been sought.[15]

  1. [33]
    During the course of the hearing, the Respondent sought leave to file further submissions responding to Mr Mutonhori's submissions that he voluntarily discontinued the appeal in the Court of Appeal.
  1. [34]
    The Court granted leave for the Respondent to read and file the further written submissions.
  1. [35]
    After leave was granted, Mr Mutonhori stated that he objected to the Respondent being granted leave to file the further written submissions on the basis that they fell outside the directions issued on 22 July 2025 regarding the filing of written submissions for this application.
  1. [36]
    The Court indicated that it would permit Mr Mutonhori to be heard in reply with respect to the matters contained in the further written submissions.
  1. [37]
    In addition to referencing the orders issued by the Court of Appeal, the further written submissions also included a reference to and attached correspondence from the acting Deputy Registrar of the Court of Appeal to the parties dated 26 May 2025. This correspondence relevantly stated:

Good morning,

I wish to confirm that no payment has been made into the Court and the matter will now be considered finalised.

The hearing of 02 June 2025 has been vacated.

  1. [38]
    In reply, Mr Mutonhori stated that following his appearance before the Court of Appeal, he took steps to correspond with the Court of Appeal to discontinue the appeal. However, he states that a response to his correspondence was not forthcoming.
  1. [39]
    Consequently, the appeal was dismissed pursuant to Order 3. Mr Mutonhori describes that as being a technicality in circumstances where he had taken steps to discontinue the appeal.
  1. [40]
    In any event, Mr Mutonhori's appeal of the legal representation decision was dismissed pursuant to Order 3 issued on 8 May 2025.[16]
  1. [41]
    Mr Mutonhori raises matters in the recusal application which are more akin to submissions appealing the legal representation decision. This application for recusal should not be used as a vehicle to attempt to re-litigate the appeal of the legal representation decision. It would be an abuse of process to permit that to occur.
  1. [42]
    As such, those matters will not be considered further in these reasons unless they relate to the current recusal application.
  1. [43]
    In respect to ground one, the matters raised under that ground which may be further summarised as including an allegation with respect to the adequacy and appropriateness of communications between the parties and the Industrial Registry; that Mr Mutonhori did not have adequate time to review the legal representation decision; that the legal representation decision was withheld from "the usual publication requirements"; and that there was collusion between the Industrial Registry and Mr Meredith by providing advanced notice of the decision to the Respondent's legal representatives.
  1. [44]
    It is noted at the outset, that at the hearing on 24 January 2025, the Court heard from Mr Mutonhori who expressed his disagreement with the legal representation decision. During the course of the hearing, the Court adjourned for a period to allow Mr Mutonhori to consider whether he wished to proceed with the appeal or to seek an adjournment in order to appeal the legal representation decision.
  1. [45]
    Upon returning, the Court was advised by Mr Mutonhori that he wished to seek an adjournment in order to appeal the legal representation decision. After hearing submissions from the parties, the Court granted an adjournment to Mr Mutonhori.Mr Mutonhori was advised that the avenue of appeal was to the Queensland Court of Appeal. If Mr Mutonhori required assistance regarding the lodgement of his appeal in the Court of Appeal, then the Court of Appeal Registry was the appropriate registry for him to seek assistance – not the Industrial Registry. In any event, it appears that Mr Mutonhori filed the appeal in the Court of Appeal within time.
  1. [46]
    Mr Mutonhori contends that there was inappropriate ex parte communication between the Industrial Registry and the Respondent. This contention is no more than an unsupported allegation. Further, it is not the practice of this Court, nor the Industrial Registry, to provide one party with substantive information with respect to a proceeding and to not provide it to the other party.
  1. [47]
    The legal representation decision was released to the parties on 23 January 2025.
  1. [48]
    Mr Mutonhori seeks to draw a correlation between the delivery of the legal representation decision on 23 January 2025 and the appearance by the Respondent's legal representative at the hearing on 24 January 2025 as being suggestive that the Respondent's legal representative had prior knowledge of the legal representation decision.
  1. [49]
    The Respondent responds to Mr Mutonhori's suggestion in its written submissions as follows:
  1. The allegation that some combination of the Registry, Deputy President and the Respondent's solicitors have been in secret communication, such that the Court has provided to the Respondent's solicitors advance notice of the Court's decisions, is not supported by any evidence.
  1. Whilst that which is asserted without evidence can be equally dismissed without evidence, the Appellants allegation of conspiracy ignores the simple, practical answer to it, that the Respondent's solicitors had already booked and travelled to Brisbane (a 2 hour 20 minute direct flight) and had done so uncertain of the Court's decision.
  1. No such "go ahead" was provided by the Deputy President in respect to costs. Costs was an issue raised by the Respondent's solicitor, which the Respondent's solicitor proposed to deal with at a later date.[17]
  1. [50]
    Mr Mutonhori's suggestion that the Respondent's solicitors had been given advanced notice of the legal representation decision either by the Court or the Industrial Registry is an unfounded and scandalous allegation.
  1. [51]
    Further, the publishing of the decision on the Supreme Court Library website on a date after 23 January 2025 is an administrative step and does not affect the operative date of the order. The terms and date of the order are clear and appear on the face of the decision which was released to the parties on 23 January 2025. The date of the publication of the decision on the Supreme Court Library website is of no relevance to the current application.
  1. [52]
    The purported procedural matters raised by Mr Mutonhori with respect to the legal representation decision are isolated to that decision. Those matters do not require the determination of any issue that will be contested in the appeal to be heard on 1 September 2025. The matters raised by Mr Mutonhori with respect to ground one do not establish bias or apprehended bias as he contends.

Ground Two

  1. [53]
    Mr Mutonhori makes the following submissions in support of ground two, summarised as follows:
  1. that the decision to "grant leave for Mr Meredith based on the grounds of complexity of the substantive matter but went out of her way to justify Mr Meredith's implied leave when he appeared in the past";
  1. that the claims in the legal representation decision exposed this Court's already formed opinion on the outcome of the substantive hearing;
  1. that the Court's reasoning at paragraphs 7, 12, 19, 20, 21, 22, 34, 35, 36, 37, 38, 39 and 41 of the legal representation decision were "contradictory, unqualified and highly prejudicial statements" which served "no purpose but to expose her already formed opinion on the outcome of the substantive hearing";
  1. that the Court's statements in the paragraphs listed at (c) above were "put there as placeholders and precursor to her decision in the substantive matter later";
  1. that the legal representation decision did not "provide legal arguments and evidence on how leave awarded to one representative could also be applicable to any another lawyer"; and
  1. that the legal representation decision was based on a "narrow interpretation of the order of grant [of leave for legal representation] is based literally on the wording of the order of grant read in isolation with no reference to the details of the application itself".
  1. [54]
    Again, the extent to which Mr Mutonhori attempts to use this application as an avenue to appeal or re-litigate the legal representation decision is an abuse of process.
  1. [55]
    Taking Mr Mutonhori's submissions at their highest for the purpose of this application, he argues that the legal representation decision contained " contradictory, unqualified and highly prejudicial statements" which served "no purpose but to expose her already formed opinion on the outcome of the substantive hearing". In making this submission, Mr Mutonhori refers to a number of paragraphs from the decision which will now be considered.
  1. [56]
    Paragraph 7 of the legal representation decision appears under the heading "Relevant background" and is set out as follows:

The Appellant also appears to attempt to raise further grounds in submissions made in support of the application to appeal.

  1. [57]
    Paragraph 7 of the legal representation decision relevantly follows paragraph 6 which sets out the grounds for appeal in Mr Mutonhori's application to appeal. Paragraph 7 records that Mr Mutonhori raises further grounds that were not included in his original application to appeal.
  1. [58]
    There is no finding or conclusion in paragraph 7 of the legal representation decision which supports a conclusion that a prejudgment of the issues on appeal had been made.
  1. [59]
    Further paragraphs of the reasons for the legal representation decision are described by Mr Mutonhori as being "highly prejudicial and legally unsupported". In this respect, Mr Mutonhori nominates paragraphs 12, 19, 20, 21, 22, 34, 35, 36, 37, 38, 39 and 41 in support of his position. These paragraphs fall within the reasons wherein the Court was considering the factors relevant to issuing the decision for legal representation.
  1. [60]
    Paragraph 12 of the legal representation decision is as follows:

It is relevant to note, as it is referred to in submissions by the parties, that in the matter below, the Appellant filed a Form 102 on 27 May 2024 consenting to the Respondent's request to be legally represented. By email dated, 27 May 2024 the Appellant indicated that he had "no objection for the Respondent to be represented" in the general protection matter and orders were subsequently issued granting leave.[18]

  1. [61]
    Paragraph 12 does no more than record that the Respondent sought to be legally represented and that Mr Mutonhori did not object to the Respondent being legally represented in the proceedings below. There is no finding or conclusion in paragraph 12 of the legal representation decision which supports a conclusion that a prejudgment of the issues on appeal had been made.
  1. [62]
    Paragraphs 19, 20, 21 and 22 are set out as follows:
  1. [19]
    The Appellant objects to the Respondent's application on, inter alia, the grounds that the Respondent's legal representative is in breach of s 530 of the IR Act by seeking to appear in the current proceedings and appearing in the proceedings below without express permission to do so. The Appellant contends that granting the Respondent leave to be legally represented would "regularise his illegal activity."
  1. [20]
    The Appellant's complaint seems to be based on an assumption that leave below was granted for a particular legal representative to appear for the Respondent.
  1. [21]
    The Respondent deposes to the Appellant having consented to leave being granted for the Respondent to be legally represented in the proceedings below through filing a Form 102 on 27 May 2024.
  1. [22]
    The Appellant makes several serious allegations about the conduct of the Respondent's legal representative in the matter below and submits that, as a result of this conduct, the Respondent's legal representative should not be granted leave to represent the Respondent in these proceedings. These allegations arise out of the Appellant's assumption that leave was granted below for a particular individual to appear as the Respondent's legal representative.[19]
  1. [63]
    Paragraphs 19 to 22 attempt to summarise each of the respective parties' positions. The content of the paragraphs relate to material put before the Court in the context of the application for legal representation.
  1. [64]
    There is no finding or conclusion in paragraphs 19, 20, 21 and 22 of the legal representation decision which supports a conclusion that a prejudgment of the issues on appeal had been made.
  1. [65]
    Paragraphs 34, 35, 36, 37, 38, 39 and 41 are set out as follows:
  1. [34]
    The Appellant's contention in this regard appears to be based on the fact that Ms Care, Solicitor, Preston Law, initially applied on behalf of the Respondent, for leave for the Respondent to be legally represented.
  1. [35]
    The Appellant argues that the Commission's subsequent granting of leave for the Respondent to be legally represented is limited to representation by Ms Care only.
  1. [36]
    However, that contention does not accord with the terms of the order granting leave. Relevantly, the Commission's order was in the following terms:

The Respondent has leave to be legally represented in matter number GP/2024/20 pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld).

  1. [37]
    The order does not seek to restrict the identity of the legal representative to a particular legal practitioner. In any event, both Ms Care and Mr Meredith are solicitors at Preston Law. It is apparent that Preston Law has been engaged by the Respondent as its legal representative, both in the matter below and in this appeal.
  1. [38]
    Consequently, there is no substance to the Appellant's submission that Mr Meredith "illegally" appeared in the proceedings below.
  1. [39]
    In this proceeding, I served directions at the initial appeal directions hearing on 18 December 2024 requiring the parties to file material relevant to the Respondent's foreshadowed application for legal representation.
  1. [40]
    …
  1. [41]
    Accordingly, the matters raised by the Respondent do not weigh against the exercise of the discretion to grant leave.
  1. [66]
    Paragraphs 34 to 39 and 41 address Mr Mutonhori's claim that, despite the Respondent being granted leave to be legally represented below, Mr Meredith's appearance was "illegal". These paragraphs of the reasons relate to matters relevant to the legal representation decision only.
  1. [67]
    There is no finding or conclusion in paragraphs 34, 35, 36, 37, 38, 39 and 41 of the legal representation decision which supports a conclusion that a prejudgment of the issues on appeal had been made. 
  1. [68]
    Whilst the matters referred to above may be matters that Mr Mutonhori ultimately does not agree with or accept regarding the grant of leave for the Respondent to be legally represented, for an application for recusal to be successful Mr Mutonhori must go further and establish that the decision was infected by actual bias or apprehended bias.
  1. [69]
    Mr Mutonhori has not discharged the onus placed on him to establish that actual bias exists. Further, Mr Mutonhori has not established or contended why the matters he refers to in the paragraphs contained in the legal representation decision establish apprehended bias in accordance with the two-tier test in Ebner.
  1. [70]
    That is, Mr Mutonhori has not established how it is, as he contends, that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
  1. [71]
    There has been no meaningful attempt by Mr Mutonhori to try to articulate how the matters he refers to in the legal representation decision connect between the matter and his feared deviation of deciding the appeal on its merits. Consequently, ground two does not support Mr Mutonhori's application.

Ground Three

  1. [72]
    Mr Mutonhori's submissions, as summarised, in relation to ground three are as follows:
  1. the Court listed the telephone mention on 18 July 2025 without prior consultation with the Appellant;
  1. at the mention, the Deputy President "appeared combative and uncompromising, armed with a new date and time of the hearing";
  1. that the Deputy President did not entertain the plea from Mr Mutonhori that he was unable to attend the hearing because he was "seized with another matter in the Commission" and that he has "no capacity to run two cases at the same time";
  1. that the Deputy President did not listen to the Appellant, and the mention was "abruptly adjourned" while he was speaking;
  1. that the new hearing date had "already been agreed to with the Respondent's lawyer who seemed happy and agreeable with the Judge since he was the instigator of reconvening the stayed hearing";
  1. that the submission above, "points to a very bleak picture of the impartiality of the Deputy President in this matter"; and
  1. that I am distracted by Mr Mutonhori's challenge against the legal representation decision and, consequently, the Deputy President "will not be able to let go of that irritation and therefore cannot immune [sic] to inherent bias in exercising her discretion in her judgement in the substantive matter".
  1. [73]
    Ultimately, Mr Mutonhori submits the following:

In considering the totality of the circumstances surrounding the Deputy President's conduct in the past proceedings and the implications of her past decision outcome, i.e the identified significant procedural unfairness, highly prejudicial and legally unsubstantiated statements and the unilateral declaration of a hearing date without consultation, it raises real questions of integrity in decision making and the potential miscarriage of justice due to actual bias or apprehended bias…[20]

  1. [74]
    Further, Mr Mutonhori raised several questions for the Court to answer in relation to the legal representation decision and the proceeding below.[21] These questions are not relevant to the recusal application and will not be addressed further below. 
  1. [75]
    On 8 July 2025, the Respondent's legal representative wrote to the Industrial Registry as follows:

Dear Registrar,

The Appellant is copied to this email.

The above appeal was adjourned by Deputy President Hartigan pending the Appellants appeal to the Supreme Court of Appeal in respect to the decision of the Deputy President on 23 January 2025.

That appeal has been dismissed and the Respondent now seeks a directions hearing in respect to this matter to timetable this appeal to a hearing.

…

  1. [76]
    On 10 July 2025, the Industrial Registry subsequently issued a Notice of Listing for a telephone mention of the appeal. The mention was listed for 18 July 2025.
  1. [77]
    The Appellant and the Respondent's legal representative both attended the mention by telephone.
  1. [78]
    The purpose of the telephone mention was to schedule the hearing of the adjourned appeal.
  1. [79]
    Mr Mutonhori advised the Court that "… I'm not ready to execute this matter. When I am, I'll contact the court."[22]
  1. [80]
    It transpired during the course of the mention that Mr Mutonhori had, subsequent to filing the current appeal in this Court, commenced a matter involving allegations of discrimination in the Commission. Mr Mutonhori contended that he "cannot have two cases running parallel to each other..."[23] and proposed that this appeal not proceed until he determined a time when it would be convenient to him for it to proceed.
  1. [81]
    Mr Mutonhori did not provide any basis upon why the anti-discrimination matter that he had commenced in the Commission prevented this appeal from proceeding to hearing other than it being his preference. Relevantly, Mr Mutonhori did not particularise any matters before the Court that would place him at a disadvantage if the appeal proceeded to hearing.
  1. [82]
    Further, the Respondent wished for the appeal to proceed to hearing.
  1. [83]
    All material in the substantive appeal has been filed and the appeal was otherwise ready to be heard. Further, the appeal is from an interlocutory decision of the Commission in Mr Mutonhori's general protections application. That proceeding is unable to progress further until this appeal is determined.
  1. [84]
    The Court proposed the date for the adjourned hearing of the appeal to recommence on 1 September 2024, some 45 days from the date of the mention.
  1. [85]
    The decision to relist the appeal for hearing was a case management decision. It is in the interests of the parties, the Court and other litigants before the Court that the hearing of this appeal, which was originally listed to be heard on 24 January 2025, not be unnecessarily delayed and that it proceed in a timely and efficient manner.
  1. [86]
    Further, the listing of the appeal for hearing was not the determination of any issue that would require determination in the appeal.
  1. [87]
    Consequently, Mr Mutonhori has failed to establish that the case management decision of listing the appeal for hearing establishes actual bias or apprehended bias of the Court as presently constituted.

Order

  1. [88]
    For the reasons set out above, I make the following order:
  1. The application for recusal filed by the Appellant on 22 July 2025 is dismissed.

Footnotes

[1]Mutonhori v Mount Isa City Council (No. 2) [2024] QIRC 240 ('Primary Decision').

[2]   Primary Decision (n 1) 1. 

[3]Mutonhori v Mount Isa City Council [2025] ICQ 1 ('legal representation decision').

[4]   (emphasis in original).

[5]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.

[6]Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87, 106 (French J).

[7]   [2022] FCA 1006 ('Dunstan').

[8]  Ibid [63]-[64] (citations omitted).

[9]   As presently constituted.

[10]   [2023] ICQ 27 ('Robertson').

[11]Robertson (n 10) [25]-[34] (emphasis in original) (citations omitted).

[12]   (2000) 205 CLR 337 ('Ebner').

[13]   [2025] QCA 66 ('the Court of Appeal Decision').

[14]   The Court of Appeal Decision (n 13) 3.

[15]   Ibid.

[16]   See the Court of Appeal Decision (n 13).

[17]   Mount Isa City Council, 'Outline of Submissions', Submission in Mutonhori v Mount Isa City Council, C/2024/35, 15 August 2025, [18]-[20] (citations omitted).

[18]   Legal representation decision (n 3) [12] (citations omitted).

[19]   Legal representation decision (n 3) [19]-[22] (citations omitted).

[20]   Simon Mutonhori, 'Application for recusal of Deputy President Hartigan in this matter', Submission in Mutonhori v Mount Isa City Council, C/2024/35, 1 August 2025, [80].

[21]   Ibid [76]-[79].

[22]   Transcript of Proceedings, Mutonhori v Mount Isa City Council (Industrial Court of Queensland, C/2024/35, Hartigan DP, 18 July 2025) 2.

[23]   Ibid 2-3.

Close

Editorial Notes

  • Published Case Name:

    Mutonhori v Mount Isa City Council (No. 2)

  • Shortened Case Name:

    Mutonhori v Mount Isa City Council (No. 2)

  • MNC:

    [2025] ICQ 16

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    02 Sep 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
1 citation
Jump To
Cite 1 - (2011) 242 CLR 283
Dunstan v Orr [2022] FCA 1006
2 citations
Jump To
Cite 1 - [2022] FCA 1006
Cite 2 - [2022] FCA 1006
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
3 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87
2 citations
Jump To
Cite 1 - (1998) 84 FCR 87
Cite 2 - (1998) 84 FCR 87
Michael Wilson & Partners Pty Ltd v Nicholls (2011) 244 CLR 427
2 citations
Jump To
Cite 1 - (2011) 244 CLR 427
Cite 2 - (2011) 244 CLR 427
Mutonhori v Mount Isa City Council [2025] ICQ 1
2 citations
Jump To
Cite 1 - [2025] ICQ 1
Cite 2 - [2025] ICQ 1
Mutonhori v Mount Isa City Council [2025] QCA 66
2 citations
Jump To
Cite 1 - [2025] QCA 66
Cite 2 - [2025] QCA 66
Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240
2 citations
Jump To
Cite 1 - [2024] QIRC 240
Cite 2 - [2024] QIRC 240
Parbery v QNI Metals Pty Ltd (No 8) [2018] QSC 213
1 citation
Jump To
Cite 1 - [2018] QSC 213
Robertson v McDonald's Australia Limited [2023] ICQ 27
2 citations
Jump To
Cite 1 - [2023] ICQ 27
Cite 2 - [2023] ICQ 27
Toms v Fuller [2010] QCA 73
1 citation
Jump To
Cite 1 - [2010] QCA 73

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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