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Kelsey v Logan City Council (No. 6)[2025] ICQ 2

Kelsey v Logan City Council (No. 6)[2025] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kelsey v Logan City Council & Ors (No. 6)  [2025] ICQ 002

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 Applications in existing proceedings

DELIVERED ON:

29 January 2025

HEARING DATES:

The applications for costs were determined on the papers without an oral hearing

DATES OF WRITTEN SUBMISSIONS:

The First Respondent's written submissions filed on 27 August 2024

The Third to Ninth Respondents' written submissions filed on 27 August 2024

The Applicant/Appellant's written submissions filed on 16 September 2024

The First Respondent's written submissions in reply filed on 30 September 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [164] of these reasons for decision

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – application to appeal against decision of Queensland Industrial Relations Commission on various grounds of errors of law and errors of fact – interlocutory application by the Appellant seeking leave to amend application to appeal – by agreement, application for leave to amend application to appeal and substantive appeal heard together – none of the proposed grounds of appeal pursued by the Appellant made out – parties heard about costs – whether the Court satisfied of any of the circumstances contained in s 545(2)(a)(i) or (ii) of the  Industrial Relations Act 2016 so as to enliven the Court's discretion to make an order for costs – Court not satisfied the discretion to make an order for costs is triggered under s 545(2)(a)(i) or (ii) of the IR Act – applications for costs by the First Respondent and by the Third to Ninth Respondents dismissed

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Conciliation and Arbitration Act 1904, s 197A

Fair Work Act 2009, s 570 and s 611

Federal Court of Australia Act 1976, s 31A

Industrial Relations Act 1988, s 347

Industrial Relations Act 1999, s 335

Industrial Relations Act 2016, s 285, s 306, s 545, s 565 and s 571

Legal Profession Act 1987 (NSW), s 198J and s 198M

CASES:

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 278 CLR 300

Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 019

Australian Building and Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340

Australian Workers' Union v Leighton Contractors Pty Ltd and Others (No 2) [2013] FCAFC 23; (2013) 232 FCR 428

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

Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; (2014) 145 ALD 548

Baker v Salva Resources Pty Ltd [2011] FWAFB 4014; (2011) 211 IR 374

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

Browne v Dunn (1893) 6 R 67

Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 21

Church v Eastern Health [2014] FWCFB 810; (2014) 240 IR 377

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

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

Degiorgio v Dunn (No 2) [2005] NSWSC 3; (2005) 62 NSWLR 284

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

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

Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400

G.H. Deane v Paper Australia Pty Ltd PR932454; (2003) AIRC 623

Gugiatti v SolarisCare Foundation Ltd [2016] FWCFB 2478

Imogen Pty Ltd v Sangwin [1996] IRCA 654; (1996) 70 IR 254

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257

Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254

Kelsey v Logan City Council and Ors [2021] ICQ 11

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 (No.4) [2023] ICQ 23

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

Lam v Gold Coast Hospital and Health Service (No 2) [2021] ICQ 017

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; (2017) 372 ALR 440

McLeod v Legal Profession Conduct Commissioner [2016] SASC 151

Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2) [2023] FCA 20

MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2000] ICQ 32; (2000) 164 QGIG 370

Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92

R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470

Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 

Sharman v Boshell [2005] NSWCA 476

Smith v Barwon Region Water Authority [2009] AIRCFB; (2009) 187 IR 276

South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130; (2005) 144 FCR 402

Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

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

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

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 035

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

COUNSEL:

Mr P. Zielinski of Counsel for the Appellant

SOLICITORS:

XD Law for the Appellant.

King & Company Solicitors for the First Respondent.

McInnes Wilson Lawyers for the Third to Ninth Respondents.

Reasons for Decision

Introduction

  1. [1]
    These reasons assume familiarity with the decision in Kelsey v Logan City Council & Ors (No. 5)[1] ('Appeal Decision'). Unless otherwise stated, the definitions used in the body of the Appeal Decision, and in its footnotes, are used in these reasons.  In the Appeal Decision I dismissed Ms Kelsey's application to amend and I also dismissed Ms Kelsey's application to appeal.[2]
  1. [2]
    These reasons also assume familiarity with the earlier decision in Kelsey v Logan City Council & Ors (No. 4)[3] ('Interlocutory Decision'). The Interlocutory Decision concerned an application in existing proceedings by which Ms Kelsey sought:
  • an order for the vacation of earlier orders made by various Members of the Commission, that certain evidence be withheld from release or search, or not be published, including the names of any employees of the Council ('the suppression orders'); and
  • an order that certain additional evidence be heard by the Court ('Ms Kelsey's interlocutory application').[4]
  1. [3]
    By the Interlocutory Decision:
  • I dismissed Ms Kelsey's interlocutory application to vacate the suppression orders;[5] and
  • I reserved the issues of the Council's costs and the Councillors' costs of Ms Kelsey's interlocutory application.[6]
  1. [4]
    In the Appeal Decision, I made directions for the parties to file and serve written submissions on the costs of '…the proceeding before the Court as currently constituted  ('the proceeding'),' with the decision on the costs of the proceeding to be determined on the papers unless otherwise ordered.[7]
  1. [5]
    These reasons are to be read in conjunction with the reasons I gave in the Appeal Decision.
  1. [6]
    The Council, pursuant to s 545(2)(a) of the IR Act, applies for an order that Ms Kelsey pays its legal costs '…including reserved costs, in defending the Application for Leave to Amend, the Application to Appeal and the substantive Appeal (heard concurrently) to be assessed on the standard basis in accordance with the Supreme Court scale of costs.'[8]
  1. [7]
    The Councillors, pursuant to s 545(2)(a) of the IR Act, seek the same order as sought by the Council.[9]
  1. [8]
    Ms Kelsey resists any order that she pays such costs of the Council and the Councillors.[10]
  1. [9]
    For the reasons that follow, I dismiss the applications for costs made by the Council and the Councillors.

Section 545 of the IR Act

  1. [10]
    Section 545 of the IR Act relevantly provides:
  1. 545General power to award costs
  1. (1)
    A person must bear the person's own costs in relation to a proceeding before the court or commission.
  2. (2)
    However, the court or commission may, on application by a party to the proceeding, order–
  1. (a)
    a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied–
  1. (i)
    the party made the application or responded to the application vexatiously or without reasonable cause; or
  2. (ii)
    it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success;
  1. [11]
    The exercise of the Court's discretion to make an order for costs, as sought by the Council and by the Councillors, involves the construction of s 545(2)(a)(i) and (ii) of the IR Act.
  1. [12]
    The construction of s 545(2)(a) of the IR Act begins with a consideration of the text itself, that is, the text of the statute as a whole; and ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.[11] Section 14A(1) of the Acts Interpretation Act 1954 also provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  1. [13]
    The Council submitted that the general test, used to determine when the Court's discretion to award costs against a party was enlivened, was summarised by Davis J, President in Kelsey v Logan City Council and Ors.[12] The President, in that decision, in part described the general scheme of ss 545(1) and (2) of the IR Act when his Honour relevantly stated:
  1. [25]
    Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified:
  1. (a)
    The starting point is that each party bears their own costs.
  2. (b)
    A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.[13]
  1. [14]
    Further, it is the case, if the Court is satisfied of either one of the jurisdictional facts contained in s 545(2)(a)(i) or (ii) of the IR Act, that while the Court's discretion to order costs will be enlivened, it still retains discretion not to exercise its power to make an order for costs in an appropriate case.[14]
  1. [15]
    In a general sense, the purpose of an order for costs is not to punish the unsuccessful party, but to indemnify the successful party.[15]
  1. [16]
    Ms Kelsey, in her submissions, raised the issue of the purpose of ss 545(1) and (2) of the IR Act.  Ms Kelsey submitted that:
  • the purpose behind s 545(2) of the IR Act is to ensure that:

'[T]he spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings.'; and

  • the discretion available under s 545(2)(a) must be exercised with caution and the case for its exercise should be clearly demonstrated.[16]
  1. [17]
    In support of these submissions, Ms Kelsey principally relied on the decision of Burley J in Murdock v Virgin Australia Airlines Pty Ltd (No 3)[17] where his Honour was commenting upon s 570 of the Fair Work Act 2009 ('FW Act'). Section 570 of the FW Act, which is not in identical terms to s 545(2) of the IR Act, provides:
  1. 570Costs only if proceedings instituted vexatiously etc.
  1. (1)
    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note:  The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section  569A.

  1. (2)
    The party may be ordered to pay the costs only if:
  1. (a)
    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
  2. (b)
    the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
  3. (c)
    the court is satisfied of both of the following:
  1. (i)
    the party unreasonably refused to participate in a matter before the FWC;
  2. (ii)
    the matter arose from the same facts as the proceedings.
  1. [18]
    The Council and the Councillors made no submissions about the purpose or policy objective of s 545 of the IR Act.
  1. [19]
    Having regard to the text in s 545(1) of the IR Act, in respect of a proceeding to which s 545 of the IR Act applies, it is not the case that 'costs follow the event' is the usual rule.[18]
  2. [20]
    Sub-sections 545(1) and (2) of the IR Act more closely resemble ss 611(1) and (2) of the FW Act rather than s 570(2) of the FW Act. Section 611 of the FW Act provides:
  1. 611Costs
  1. (1)
    A person must bear the person's own costs in relation to a matter before the FWC.
  2. (2)
    However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
  1. (a)
    the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
  2. (b)
    the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

  1. (3)
    A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4‑1).

  1. [21]
    The differences between s 570 and s 611 of the FW Act were commented upon by a Full Bench of the Fair Work Commission ('FWC') in Church v Eastern Health,[19] where Ross J, President, Vice President Hatcher and Commissioner Wilson relevantly stated (footnotes omitted):
  1. 23.Given the similarities between ss 611 and 570, in particular the common use of the expression "vexatiously or without reasonable cause", judgements which have construed s 570 and its legislative antecedents are relevant to our consideration of s 611.
  2. 24.In Heidt v Chrysler Australia Ltd Northrop J said of s 197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor provision to s 570 of the FW Act:

The policy of s 197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties, defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.

  1. 25.The application of these observations to the construction of s 611 requires some qualification. Section 570 deals with the ordering of costs in court proceedings in relation to matters arising under the FW Act. In court proceedings the usual practice is that an order for costs follows the outcome of the substantive proceedings. As we have mentioned the Commission context is different. The Commission's power to order costs only arises in the context of ss 376, 400A, 401, 611 and 780 of the FW Act. There is no general practice of cost following the event. Despite these differences the observations of Northrop J in Heidt are apposite to s 611. 
  2. 26.Section 611 sets out a general rule – that a person must bear their own costs in relation to a matter before the Commission (s 611(1)) – and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:
  1. 2353.Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
  2. 2354.However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
  3. 2355.A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
  4. 2356.Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.
  1. 27.In the context of s 570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s 570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s 611 of the FW Act.
  1. [22]
    Similar to the approach taken by the Full Bench of the FWC in Church v Eastern Health, I accept that, in respect of the identification of the purpose and policy objective of s 545 of the IR Act, the authorities that identify the purpose and policy objectives of s 570 (and s 611) of the FW Act will be persuasive. Indeed, that has been the approach taken by Members of the Queensland Industrial Relations Commission and by the President of this Court.
  1. [23]
    In Kelsey v Logan City Council & Ors (No 9),[20] Vice President O'Connor relevantly stated (footnotes omitted):
  1. [22]
    The rationale for s 545 of the IR Act can, in part, be gleaned from the decision of Augusta Ventures Ltd v Mount Arthur Coal Pty Ltd, which explains the legislative policy underpinning s 570 of the Fair Work Act 2009 (Cth) which, like s 545, abrogates the usual rule that costs follow the event:
  1. [103]
    The evident legislative policy is that persons who seek by legal proceedings to vindicate rights or to obtain relief under the FW Act should be able to do so without exposing themselves to the risk of having to pay the costs of another party in the event that they are unsuccessful. So much was made express by the Minister in the Second Reading Speech for the introduction of s 197A into the Conciliation and Arbitration Act in 1973:

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

…

  1. [107]
    It is important not to lose sight of legislative policy which underpins s 570. This can easily occur if one characterises it as being no more than a statutory fetter on the making of the usual order for costs. It is that, but it also reflects an attempt to address the underlying inequality of position commonly experienced by applicants in litigation for the enforcement of industrial entitlements.
  1. [24]
    In Lam v Gold Coast Hospital and Health Service (No 2),[21] Davis J, President stated (footnotes omitted):
  1. [6]
    It is unnecessary in the present case to analyse the various cases that have been considered s 545 and analogous provisions in other legislation.  It is sufficient to observe:
  1. (a)
    Section 545 primarily gives protection to a party who brings an unsuccessful appeal from the risk of paying costs.
  2. (b)
    Therefore, it will be rare that a party will be ordered to pay costs.
  3. (c)
    The balancing protection offered to a party who successfully defends an appeal is that costs may be ordered where one of the jurisdictional facts are made out.[22]
  4. (d)
    In assessing whether an appeal was commenced "without reasonable cause", or where there were "no reasonable prospect of success", the relevant viewpoint is the time the appeal was commenced, not when it failed.[23]

Section 545(2)(a)(i) of the IR Act

  1. [25]
    Section 545(2)(a)(i) of the IR Act, when read with s 545(1), relevantly provides that, in relation to a proceeding before the Court, the Court may order a party to the proceeding to pay costs incurred by another party if the Court is satisfied the party made the application, or responded to the application, vexatiously or without reasonable cause.

'Vexatiously' and 'without reasonable cause'

The parties' submissions

  1. [26]
    The Council and the Councillors submitted that the assessment of 'reasonable cause' in s 545(2)(a)(i) is an objective assessment and made when considering the facts at the time of the institution of the proceedings.[24]
  1. [27]
    Ms Kelsey submitted (footnotes omitted):
  1. 7.Section 545(2)(a)(i) requires an assessment of whether party made a relevant application vexatiously or without reasonable cause. As set out at LCCCS [6], that requires an objective assessment by reference to the facts existing at the time the application was made. The terms 'vexatious' and 'without reasonable cause' are to be read disjunctively, with the former connoting an application being brought with the intention to annoy or embarrass the responding party and the latter requiring that a party seeking costs demonstrate that the application was 'manifestly groundless' or 'so obviously untenable that it cannot possibly succeed' or 'objectively recognisable as one which could not succeed at the time when the application was made'. In other words, 'if success depends upon the resolution in the applicants favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being without reasonable cause'.

'Vexatiously'

  1. [28]
    In Messenger v Commonwealth of Australia (Represented by the Department of Finance) (No 2),[25] Snaden J gave consideration to the meaning of '…vexatiously' in s 570(2) of the FW Act. His Honour stated:
  1. 14.A respondent who submits that a proceeding arising under the FW Act was brought vexatiously must demonstrate that the applicant's predominant purpose in instituting it was to harass or embarrass, or to gain a collateral advantage unrelated to the vindication of the rights, privileges or immunities in respect of which it was instituted:  Nilsen, 181 (North J).  The onus is "a heavy one":  Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498 (Scarman LJ).  If a proceeding is instituted by an applicant who does not intend to prosecute it to conclusion; but instead seeks to use it as a means of obtaining some advantage for which it was not designed or some collateral advantage that is beyond what the law offers, then it might be said to have been instituted vexatiously:  Williams v Spautz (1992) 174 CLR 509, 526-527 (Mason CJ, Dawson, Toohey and McHugh JJ).
  1. [29]
    The meaning of '…vexatiously' compared to '…without reasonable cause' was addressed by Wilcox CJ in  Imogen Pty Ltd v Sangwin ('Imogen').[26] In that case the question was whether the Full Court of the Industrial Court of Australia could and should have ordered an appellant, who discontinued an appeal on the day before its scheduled hearing, pay the respondent's costs of the appeal.[27] Chief Justice Wilcox relevantly stated:

The respondent submits there is no substantial difference in meaning between "vexatious" and "without reasonable cause", as those terms are used in s 347 of the Act. I doubt that this is correct; if the two expressions were intended to mean the same thing, there would have been no need for Parliament to use both of them. If there is a difference in meaning, "without reasonable cause" is the lower standard.[28]

  1. [30]
    In Church v Eastern Health,[29] the Full Bench of the FWC stated that the question of whether an application was made vexatiously turns on the motive of the applicant in making the application, and that motive can be inferred from, among other things, the surrounding circumstances, the applicant's conduct and the merits of the application itself.[30]

'Without reasonable cause'

  1. [31]
    This is a phrase where its meaning, in the context of industrial legislation dealing with the discretion to make orders for costs concerning the exercise of original and appellate jurisdiction, is settled.
  1. [32]
    In respect of s 545(2)(a)(i) of the IR Act, in Algahamdi v State of Queensland (Queensland Health) (No 2) ('Algahamdi'),[31] Davis, J, President, stated (citations omitted):
  1. [8]
    The term "without reasonable cause" was the subject of consideration in Kanan v Australian Postal and Telecommunications Union:

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

  1. [33]
    Thus, as submitted by the Council and the Councillors, the assessment of whether an application was made '…without reasonable cause':
  • involves an objective assessment; and
  • is made considering the facts existing at the time of the institution of the relevant application.[32]
  1. [34]
    However, simply because an argument failed does not mean a party commenced a proceeding '…without reasonable cause.'[33]
  1. [35]
    The decision cited in Algahamdi, being the decision of Wilcox J in Kanan v Australian Postal and Telecommunications Union,[34] did not involve the consideration of the phrase '…without reasonable cause' in the context of an appellate proceeding.  This issue was addressed in Imogen where Wilcox CJ stated:[35]

Accordingly, as I said in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, "for the qualification of s 347 to operate, it is sufficient that the proceeding be instituted 'without reasonable cause'". The word "proceeding"' in s 347 includes an appeal; therefore the first question in the present case is whether Imogen's appeal was instituted without reasonable cause.

In Kanan I collected the authorities on the meaning of the phrase "without reasonable cause". At 264-265 I proposed a test:

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

Only minor modifications of that test are necessary to cover the situation of an appeal. The question would be whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If, having regard to those matters, there was a not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it seems to me it cannot fairly be described as having been instituted "without reasonable cause". This is so even if, in the result, the appeal proved unsuccessful.[36]

  1. [36]
    In Imogen, Ryan J stated:

The existence of "reasonable cause" within the meaning of s 347 falls to be determined at the time when the relevant proceedings were instituted. The fact that the party instituting the proceedings later discontinues them is therefore not a matter to be taken directly into account in the application of the section. However, an appeal stands in somewhat different case from proceedings at first instance in that discontinuance may bear indirectly on the discretion conferred by s 347 by tending to confirm an impression derived from the grounds of appeal and the reasons for judgment below that the prospects of success on the appeal were slight. 

Not without significance to an assessment of the reasonableness of the institution of an appeal are the amount at issue and the nature of the points raised by the notice of appeal. Where, as here, the appeal is essentially against findings of fact made by the trial judge after a two day hearing resulting in a judgment for $16,900 and raises no important or distinctive point of law or principle, the Court may more readily conclude that it was not reasonable in the circumstances to have instituted it. On a fairly fine balance of the relevant considerations and not without hesitation, I have been led to reach that conclusion in this case and agree with the Chief Justice and the orders which he has proposed.[37]

  1. [37]
    Similarly, in Baker v Patrick Projects Pty Ltd (No 2),[38] Dowsett, Tracey and Katzmann JJ stated:

"Without reasonable cause"

  1. [9]
    The meaning and application of the phrase "without reasonable cause" in s 570 and its predecessors has been considered in many cases. The effect of these authorities was recently summarised by Pagone J in Construction, Forestry, Mining and Energy Union v Corinthian Industries (Aust) Pty Ltd (No 2) [2014] FCA 351. His Honour said (at [8]) that:

… To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 at 473; [1978] HCA 51. The relevant provisions reflect "a policy of protecting a party instituting proceedings from liability for costs" and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275; 237 ALR 672; [2006] FCAFC 199 at [60]. In Kangan Batman Institute it was said by the Full Court at [60] that "a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure". In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted "without reasonable cause" was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no "substantial prospect of success". His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant's own version of the facts.

  1. [10]
    This test requires some minor modification when applied to the institution of an appeal or judicial review proceedings. In such proceedings the focus changes to whether, having regard to the facts apparent to the appellant at the time of instituting the appeal or the application for judicial review, there were no reasonable prospects of success. In evaluating these prospects regard may be had to the reasons for judgment or decision under appeal or review, as the case may be, and the grounds relied on to challenge the judgment or decision: see Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 257 per Wilcox CJ.[39]

Section 545(2)(a)(ii) of the IR Act

  1. [38]
    Section 545(2)(a)(ii) of the IR Act, when read with s 545(1), relevantly provides that, in relation to a proceeding before the Court, the Court may order a party to the proceeding to pay costs incurred by another party if the Court is satisfied '…it would have been reasonably apparent to the party that the application … had no reasonable prospect of success.'
  1. [39]
    Section 545(2)(a)(ii) is a separate and distinct jurisdictional fact giving rise to a discretion to award costs.[40] 

The parties' submissions

  1. [40]
    The Council submitted that s 545(2)(a)(ii) of the IR Act:

[R]equires only that it should be reasonably apparent that the application had no reasonable prospects. The test is objective, however it is not absolute, and it only requires that the Court is satisfied that a reasonable person would consider that the prospects of success were not sufficient to warrant the risk and expense of litigation.[41]

  1. [41]
    Ms Kelsey submitted that:
  • the Council's submissions misstate the criterion in s 545(2)(a)(ii) of the IR Act in that the provision requires an objective assessment of whether it would have been reasonably apparent to her that her application to amend had '…no reasonable prospect of the success';
  • the above depends on '…weighing up the circumstances of the case' and assessing whether its prospects are '…reasonable in the sense that they provide a rational base for a decision to proceed with a matter';[42]
  • the provision asks whether her appeal was '…so lacking in merit or substance as to be not fairly arguable'[43] which is manifestly not the same as asking whether '…a reasonable person would consider that the prospects of success were not sufficient to warrant the risk and expense of litigation'; and
  • the Council's formulation is contrary to principle and introduces an indeterminate frame of reference. [44]

'It would have been reasonably apparent'

  1. [42]
    In my view, no improvement, by way of paraphrase, can be given to the meaning of the phrase '… it would have been reasonably apparent' having regard to the ordinary meaning of the words that make up that phrase and having regard to the context of s 545(2)(a)(ii) of the IR Act. Thus, in Baker v Salva Resources Pty Ltd [45] a Full Bench of Fair Work Australia held that s 611(2)(b) of the FW Act – whether Fair Work Australia was satisfied it '…should have been reasonably apparent' to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success – imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test.[46]
  1. [43]
    Ms Kelsey accepted that the criterion in s 545(2)(a)(ii) of the IR Act was objective.[47]
  1. [44]
    The President of the Court in Kelsey v Logan City Council and Ors held that in consideration of whether s 545(2)(a)(ii) of the IR Act is engaged, facts which arise after the commencement of the proceedings may be relevant.[48] This proposition was not doubted by Ms Kelsey.[49]

'No reasonable prospect of success'

  1. [45]
    There is little authority from this Court about this phrase as contained in s 545(2)(a)(ii) of the IR Act.
  1. [46]
    Ms Kelsey[50] relied on the decision of Vice President O'Connor (sitting as the Court) in Chen v State of Queensland (Queensland Health) (No 2),[51] where his Honour relevantly stated (citations omitted):
  1. [11]
    The same objective assessment applies in respect of s 545(2)(ii) as to whether it would have been reasonably apparent to a party that their claim had no reasonable prospects of success.  This limb is broader than s 545(2)(i) as it can be triggered at a time subsequent to the filing of an application.
  2. [12]
    In Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011, I had the opportunity of undertaking a brief survey of the applicable principles in respect of an application under s 545 of the IR Act:

Principles governing an award of costs in the Commission

  1. [12]
    The ordinary rule is set out in s 545(1) of the IR Act; namely that each party is to bear its own costs in relation to a proceeding in the Commission.  That rule need not be applied if s 545(2)(a) is satisfied. In other words, costs may be awarded if the Commission is satisfied that the Respondent responded to the application vexatiously or without reasonable cause; or it would have been reasonably apparent to the Respondent that the response to the application had no reasonable prospect of success.

…

The test for reasonable prospects of success

  1. [17]
    It is acknowledged that s 545 of the IR Act 2016 preserves s 335 of the IR Act 1999 by providing that a person must bear their own costs in relation to a proceeding unless the court or commission has ordered costs to another party. However, s 545 goes further than s 335 by giving the Commission a discretion in circumstances where a party to the proceeding made the application, or responded to the application, when there was no reasonable prospect of success.
  2. [18]
    As a matter of ordinary expression, the words 'reasonable prospects of success' involves weighing up the circumstances of the case to determine whether they are reasonable in the sense that they provide a rational base for a decision to proceed with a matter or, as in this case, whether to respond to the application.
  3. [19]
    In Keddie & Ors v Stacks/Goudkamp Pty Ltd the New South Wales Court of Appeal was called on to consider a costs application in the context of s 345 of the Legal Profession Act and the obligation of a law practice not to provide legal services unless the claim has reasonable prospects of success.
  4. [20]
    In considering the phrase "reasonable prospects of success" the Court of Appeal had reference to the reasoning of Barrett J (as his Honour then was) in Degiorgio v Dunn (No 2), where his Honour observed:

... 'without reasonable prospects of success' ... equates its meaning with 'so lacking in merit or substance as to be not fairly arguable'.  The concept is one that falls appreciably short of 'likely to succeed'.

  1. [21]
    Beazley JA (with whom Barrett JA and Sackville AJA agreed) held that the phrase 'without reasonable prospects of success' means 'not fairly arguable' and as to establish 'on the basis of provable facts and a reasonably arguable view of the law that the claim has reasonable prospects of success'.
  1. [47]
    As referred to by his Honour, there are cases which have settled the meaning of the statutory phrase '… without reasonable prospects of success' when used in the context of a statute conferring on a court power to make costs orders against lawyers who provide legal services to a party in a claim for damages.
  1. [48]
    In Degiorgio v Dunn (No 2) ('Degiorgio'),[52] Barrett J of the New South Wales Supreme Court construed the phrase '… without reasonable prospects of success' in s 198M of the Legal Profession Act 1987. However, the construction of that provision was based, in significant part, on the statutory context in which it appeared. That context was set out in the decision:
  1. 10
    Section 198M of the Legal Profession Act is as follows:

"198M Costs order against solicitor or barrister who acts without reasonable prospects of success

… If it appears to a court in which proceedings are taken on a claim for damages that a solicitor or barrister has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the solicitor or barrister who provided the services:

  1. (a)
    an order directing the solicitor or barrister to repay to the party to whom the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party,
  2. (b)
    an order directing the solicitor or barrister to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified."
  1. 11
    This is the fourth of five sections in Div 5C of Pt 11 of the Act. Its purpose and meaning are to be understood in the light of the first of the five sections, being s 198J:

"198J Solicitor or barrister not to act unless there are reasonable prospects of success

  1. (1)
    A solicitor or barrister must not provide legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
  2. (2)
    A fact is provable only if the solicitor or barrister reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.
  3. (3)
    This Division applies despite any obligation that a solicitor or barrister may have to act in accordance with the instructions or wishes of his or her client.
  4. (4)
    A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.
  5. (5)
    Provision of legal services in contravention of this section constitutes for the purposes of this Division the provision of legal services without reasonable prospects of success."
  1. 12
    I should also refer to s 198N which, in some circumstances, creates a rebuttable presumption adverse to a legal practitioner on the "without reasonable prospects of success" question. In the present case, however, there is no need to consider s 198N in any substantive way since the circumstances are not within either s 198N(1) (because this Court did not, on the hearing of the proceedings, make any finding relevant to the operation of that section) or s 198N(2) (because the trial court was the Supreme Court). I mention, by way of aside, that the fact that no aspect of s 198N operates also means that principles of lawyer-client confidentiality are not modified by s 198N(3).
  1. [49]
    Justice Barrett, after considering s 198J(4) of the Legal Profession Act 1987, another case that construed s 198M(1) of the Legal Profession Act 1987 (which decided that the provision was made up of five elements), decisions in other jurisdictions that have construed the phrase in other statutory contexts, a law journal article about the statutory phrase, a second reading speech and other case law,[53] concluded:
  1. 28
    The several factors to which I have referred, including the references in the Premier's second reading speech and the apparent legislative purpose, cause me to adopt the construction of "without reasonable prospects of success" that equates its meaning with "so lacking in merit or substance as to be not fairly arguable". The concept is one that falls appreciably short of "likely to succeed."[54]
  1. [50]
    In relation to statutory language, because a term takes its meaning from its context, the use of the same term in a different statutory context can be a distraction or worse. Further, while the meaning of a term in other legislation can be used where that other legislation is sufficiently analogous, that may not be the case in different and dissimilar statutory contexts.[55] 
  1. [51]
    For the above reasons, I am cautious about directly applying the meaning given to the statutory phrase '…without reasonable prospects of success' in Degiorgio to the phrase '… no reasonable prospect of success' in s 545(2)(a)(ii) of the IR Act. This is because, despite the slight difference in the statutory texts and while the statutory subject matters are the same (orders for costs), the statutory contexts are not identical. The statutory context of the former concerns the provision of legal services by a lawyer to a party in a claim for damages; the latter concerns the understanding of an applicant or respondent in respect of an application under the IR Act.
  1. [52]
    The phrase has been considered in statutory contexts the same as that of s 545(2) of the IR Act.
  1. [53]
    In G.H. Deane v Paper Australia Pty Ltd,[56] a Full Bench of the Australian Industrial Relations Commission[57] relevantly stated (citations omitted):
  1. [4]
    Costs were sought in two respects. In the first place, the costs of the appeal were sought pursuant to s. 170CJ(1). That section reads:
  1. "(1)
    If the Commission is satisfied:
  1. (a)
    that a person (first party):
  1. (i)
    made an application under section 170CE; or
  2. (ii)
    began proceedings relating to an application; and
  1. (b)
    the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;

the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party."

  1. [5]
    It was not disputed that for the purposes of s. 170CJ(1)(a)(ii) the appeal instituted by the applicant was a proceeding begun by him. The question is whether he did so in circumstances where it should have been reasonably apparent to him that there was no reasonable prospect of success. If that question is answered in the affirmative the Commission is able to make an order for costs against him. Whether it should do so is a separate although closely related question which requires a separate exercise of discretion.
  2. [6]
    We were taken to a number of authorities which were said to bear upon the construction of s. 170CJ. None of those authorities deals with the operative expression which now appears in s. 170CJ(1)(b), namely: "no reasonable prospect of success".
  3. [7]
    The expression "no reasonable prospect of success" also appears in ss. 170CF(2)(d), 170CF(3)(b) and 170CF(4). Section 170CF(4) provides for the summary dismissal of an application for relief pursuant to s. 170CE, by the issue of an appropriate certificate, if the Commission concludes that the application has no reasonable prospect of success. The construction of the expression in that context was considered by a Full Bench of the Commission in Wright v Australian Customs Service. In that case the Full Bench, drawing upon relevant authority relating to summary dismissal of proceedings in various jurisdictions, held that a conclusion that an application had no reasonable prospect of success should only be reached with extreme caution and where the application is manifestly untenable or groundless.
  4. [8]
    Making due allowance for the caution which must attend the exercise of a discretion to summarily dismiss an application, it appears to us that the approach in Wright is one we should follow. In other words, unless, upon the facts apparent to the applicant at the time of instituting the appeal, the proceeding in question was manifestly untenable or groundless, the relevant requirement in s. 170CJ(1) is not fulfilled and the discretion to make an order for costs is not available.
  1. [54]
    In Smith v Barwon Region Water Authority,[58] another Full Bench of the Australian Industrial Relations Commission[59] relevantly stated (citations omitted):
  1. 23.It seems the phrase "reasonable prospects of success" conveys something less than likelihood of success. Sheppard J in Ahern v Deputy Commissioner of Taxation, in the observation "… will be likely to succeed or at least have reasonable prospects of success" indicates a less stringent test for determining whether a matter has prospects of success. This formulation would suggest there is a question of probability on the one hand and possibility on the other.
  2. 24.In Westend Pallets Pty Ltd v Lally a Full Bench of the Commission equated "reasonable prospects of success" with "arguable case" observing that:

The requirement for an arguable case of either legal error or that the discretion has been miscarried will mean that applicants must demonstrate that their case has a reasonable prospect of success.

…

  1. 47.We discuss in [17][60] what the expression "reasonable prospects of success" conveys. The applicant's position is that in order to find that there is no reasonable prospect of success we must be satisfied the application is manifestly untenable or groundless. He relies on the decision of the Full Bench in Wright v Australian Customs Service. The respondent contends that the test to be applied is one that requires a real, fair or sensible prospect of success as opposed to one that is fanciful or remote. It submitted that only reasonable, not plausible inferences in favour of the applicant should be drawn in determining the issue. It called in aid of that proposition the decision of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd.
  2. 48.Having regard to the authorities cited in argument, and in particular, those to which we specifically refer, it seems to us that an application will have no reasonable prospects of success if it is so lacking in merit or substance as to be not reasonably arguable. Having regard to all the available material, including the submissions in the appeal, there is a serious issue about whether the direction for redeployment was reasonable and lawful. The respondent contends that it was always prepared to discuss the issue with the applicant. The fact is that any such discussion was to be confined to the duties of the redeployed position and was conditional on the applicant moving into the position.
  1. [55]
    Section 545(2)(a)(ii) of the IR Act is, in form, similar to s 611(2)(b) of the FW Act. In Baker v Salva Resources Pty Ltd[61] a Full Bench of Fair Work Australia adopted the two meanings given in the two cases referred to immediately above, and held that a conclusion that an application had no reasonable prospect of success:

[S]hould only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.[62]

  1. [56]
    The survey of the above cases under the present sub-heading demonstrates the difficulties in paraphrasing a statutory phrase such as '…no reasonable prospect of success.'
  1. [57]
    In Spencer v The Commonwealth of Australia ('Spencer'),[63] the construction of the phrase '…no reasonable prospect' in s 31A of the Federal Court of Australia Act 1976 was in issue. That provision confers discretion on the Federal Court of Australia to give judgment for one party against another, in relation to the whole or any part of a proceeding, if the first party is defending the proceeding or that part of the proceeding, where the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
  1. [58]
    Justices Hayne, Crennan, Kiefel and Bell relevantly stated:
  1. 58.How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.  Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
  2. 59.In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
  3. 60.Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[64]
  1. [59]
    This is not a case where I am deciding an appeal from a decision of the Commission about the construction or application of s 545(2)(a)(ii) of the IR Act. As such, I have not had the advantage of full argument about this matter.
  1. [60]
    In the end, having regard to the decision of the plurality in Spencer,[65] the preferable approach, in respect of the potential application of s 545(2)(a)(ii) of the IR Act, is to consider its text and context of that provision rather than by attempting to paraphrase the expression '…no reasonable prospect of success.'
  1. [61]
    Thus, my discretion to make an order that a party pays the costs incurred by another party will be enlivened, pursuant to s 545(2)(a)(ii) of the IR Act, if I am satisfied it would have been reasonably apparent to the party that the application, or response to the application, had no reasonable prospect of success.  

The Court's earlier decision about costs

  1. [62]
    Although not referred to by the parties, it is appropriate to refer to the earlier decision of the President by which his Honour made an order that Ms Kelsey pays the costs of the Council and the Councillors regarding her application to appeal and her application to amend.
  1. [63]
    In Kelsey v Logan City Council & Ors (No 3),[66] the President ordered that Ms Kelsey pay the Council and the Councillors' '…costs of the appeal, including the costs of the application to amend the application to appeal, reserved costs and the costs of the written submissions on costs' on the standard basis.[67]
  1. [64]
    In making that order, the President concluded that while it could not be said that Ms Kelsey's prosecution of her application to amend was done vexatiously, Ms Kelsey never '… had reasonable cause to commence or prosecute the appeal.'[68]
  1. [65]
    In coming to the latter conclusion, his Honour stated (citations omitted):
  1. [43]
    No reasonably arguable reason was ever identified upon which there could be any real prospect of leave being given under s 557(1) to rely upon a ground of appeal other than error of law. Given the limited nature of the appeal which Ms Kelsey could mount under s 557(1) of the IR Act, she faced insurmountable difficulties given the findings made by the QIRC adversely to her credit, favourably to the respondents' credit and in particular as to the true motivations of the third to ninth respondents in voting in favour of her employment being terminated.
  2. [44]
    As previously explained, if, as is the case, there was no basis to attack those findings, other grounds of appeal fall.
  3. [45]
    All that was left was ground 1 which was an alleged misdirection as to how to assess the lawfulness of the respondents' decision to vote for the termination of the applicant's employment, ground 3, which alleged an inadequacy of reasons, and ground 5, which alleged error in the application of the rule in Browne v Dunn. For the reasons explained in the primary judgment, none of these have substance. None, in my view, gave reasonable cause to institute and prosecute the appeal.
  4. [46]
    There is no need to consider the jurisdictional fact identified by s 545(2)(a)(ii). The jurisdiction to award costs has clearly arisen.
  5. [47]
    Even disregarding Ms Kelsey's conduct in filing the application to appeal in the form that it was and, having regard to the policy behind s 545 of the IR Act, the respondents make a very strong claim for an exercise of discretion in their favour. While Ms Kelsey's application in the QIRC faced some legal hurdles, the central factual question was, and was always going to be, as to the motivation of the third to ninth respondents in voting for the termination of her employment. That was extensively litigated. She lost on that critical factual issue.
  6. [48]
    Ms Kelsey's appeal as finally framed was bound to fail as there was no basis upon which to upset the critical findings against her. Notwithstanding those insurmountable obstacles, Ms Kelsey proceeded and put the respondents to what is obviously very considerable expense.
  1. [66]
    Those reasons followed on from the earlier decision of the Court in Kelsey v Logan City Council & Ors (No 2),[69] where the President:
  • held that Ms Kelsey's application to appeal was one that was capable of amendment;[70]
  • in considering whether or not to give leave to Ms Kelsey to amend her application to appeal, considered her prospects of success on appeal, but held that her appeal had '… no reasonable prospects of success';[71]  and
  • held that, even if he could identify a reasonably arguable ground of appeal, his Honour would have still dismissed Ms Kelsey's application to amend on the basis of her demonstrated contumelious disregard for the processes of the Court and of the legitimate interests of the Council and the Councillors, because her application to appeal made no attempt to stipulate any grounds of appeal or to even commit to pursuing an appeal.[72]
  1. [67]
    Relevantly, the President held (citations omitted):
  1. [123]
    For the reasons that I have explained above, the appeal has no reasonable prospects of success.

Ground 1:  Evidence relating to assessing reasons actuating the dismissal vote. There is no substance in the criticism of the Vice President's approach.

Ground 2:  Accessorial liability. That becomes irrelevant unless there can be a successful challenge to the findings of the Vice President that the third to ninth respondents were not actuated by a prohibited motive.

Ground 3:  Inadequacy of reasons. This is really a de facto attack upon factual findings. There is no reasonable prospect of an error of law by way of failing to give adequate reasons being maintained.

…

Ground 5: Browne v Dunn. There is no substance to this ground.

Ground 6: Errors of mixed law and fact. These can only be raised by leave where public interest is made out. There is no reasonable prospect of leave being achieved in this case.

  1. [124]
    Ms Kelsey ran a case before the Vice President which was always going to turn on credit issues. She lost those credit issues. The respondents were believed and she was not. As there is no reasonable prospect of her overcoming those factual findings, her prospects of success are non-existent.
  2. [125]
    As she has no reasonable grounds of success on the appeal, the application should be dismissed.
  1. [68]
    The President, in the above case, was determining the narrower question of whether Ms Kelsey should have been given leave to amend her application to appeal. That involved a consideration of Ms Kelsey's conduct in filing the application to appeal, which did not comply with the Rules, and the consideration of whether Ms Kelsey's application to amend had reasonable prospects of success.
  1. [69]
    The proceeding before me was different to the proceeding before the President. Following the remittal of Ms Kelsey's application to amend by the Court of Appeal, the proceeding before me evolved into a proceeding that was distinguishable to that before the President. This was due to the parties' agreed proposal. The parties' agreed proposal was that I hear Ms Kelsey's application to amend and her substantive appeal at the same time.  I adopted that course as proposed by the parties. As I stated in the Appeal Decision:
  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;
  • 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; 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.

…

  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.
  2. [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. 4.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. [70]
    Before me, over nearly three days, the parties fully argued:
  • whether it was in the public interest that leave be given to Ms Kelsey to appeal about the categories of complaint of alleged errors of fact;
  • the specifically alleged errors of law; and
  • the categories of complaint of alleged errors of fact and of law.
  1. [71]
    In the Appeal Decision:
  • I gave leave to Ms Kelsey, pursuant to s 565 of the IR Act, to argue the categories of complaint of errors of fact;[73]
  • I rejected proposed ground of appeal 1, namely, that the Vice President erred in law by finding that, in assessing whether the lawful reasons that the Councillors alleged actuated their decision to vote to terminate Ms Kelsey's employment, the reasonableness, fairness or justification of those reasons was irrelevant ('the reasonableness, fairness or justification ground');[74]
  • I rejected the categories of complaint alleging errors of law due to inadequacy of reasons and the categories of complaint alleging errors of fact;[75]
  • I rejected proposed ground of appeal 2, namely, that the Vice President erred in law in finding that it was an essential element of establishing the involvement by the Councillors in the Council's contravening conduct, that each Councillor knew how the other Councillors were going to vote on the motion to terminate Ms Kelsey's employment ('the accessorial liability ground');[76]
  • I rejected proposed ground of appeal 12 that the Vice President erred in law in respect of the application of the rule in Browne v Dunn[77] ('the Browne v Dunn ground');[78] and
  • I rejected proposed grounds of appeal 13(a) and (b), namely, that the Vice President erred in fact by not considering Ms Kelsey's claim that a reason for her dismissal was that she had commenced the QIRC proceedings on 1 December 2017 ('the QIRC proceedings grounds').[79]

Is the Court's discretion, to make an order that Ms Kelsey pay the costs incurred by the Council and the Councillors, enlivened?

What is to be considered?

  1. [72]
    The Council submitted that:
  • although the principal matter to be determined in the proceeding (before me) was whether the application to amend should be granted, the concurrent hearing of the appeal meant that the amended grounds proposed by Ms Kelsey were examined by the Court in the same way as if they were the grounds of a valid appeal;
  • for that reason, there was no preliminary or provisional determination by the Court that any of the proposed grounds of appeal were arguable or had any reasonable prospects of success, as would ordinarily occur upon a more orthodox application for leave to amend;[80] and
  • those facts placed a particular onus on Ms Kelsey to determine the viability of the appeal for herself and that her failure to do so exposed her to the possibility of an order for costs under s 545 of the IR Act.[81]
  1. [73]
    The Councillors, in generally endorsing the submissions of the Council, did not seem to dispute that, in considering the potential application of s 545 of the IR Act, it was appropriate for the Court to look at the matter as if it was a fully argued appeal.[82]
  1. [74]
    Ms Kelsey submitted that the discretion conferred by s 545 of the IR Act must be tested against the substance of the whole of her combined application to appeal and application to amend[83] and '… not merely aspects of those applications.'[84]
  1. [75]
    As referred to above, these propositions were not disputed by the Council or the Councillors.
  1. [76]
    In my view, Ms Kelsey's submissions on this point are correct. Section 545(2)(a)(i) and (ii) of the IR Act relevantly require a consideration of '…the application'.  In Northern Territory v Sangare,[85] the High Court relevantly held that power to order costs, while discretionary, '…must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.'[86]
  1. [77]
    The relevant facts connected with the proceeding before me were that Ms Kelsey's appeal was commenced by her application to appeal, followed by her application to amend. After the remittal by the Court of Appeal, I heard Ms Kelsey's application to amend and her substantive appeal, to the extent the proposed grounds of appeal were pressed, as a consequence of the parties' agreed proposal. As a matter of substance, Ms Kelsey's application to amend, and her substantive appeal as pressed, amount to '…the application' for the purposes of s 545(2)(a) of the IR Act.
  1. [78]
    Thus, the question for me is whether Ms Kelsey's application to amend and her substantive appeal:
  • were made vexatiously;
  • were made without reasonable cause; or
  • whether it was reasonably apparent to Ms Kelsey that her application to amend and her substantive appeal had no reasonable prospect of success.

The parties' submissions

Overview

  1. [79]
    The Council submitted:
  • it was apparent that the grounds of appeal intended to be added to the application to appeal constituted no more than a sizeable 'grab bag' of complaints about the fact that Ms Kelsey's view of the evidence was not shared or accepted by the Vice President after seeing and hearing all of the witnesses and their evidence;
  • the inescapable conclusion was that Ms Kelsey was effectively seeking that the Court retry the evidentiary hearing before the Commission, by the only mechanism available to her, by way of an appeal which was limited to questions of law, with the very uncertain prospect of an appeal on issues of fact, but only with leave of the Court;
  • for all practical purposes, persuading the Court on appeal to re-determine the evidentiary case below was effectively impossible unless there had actually been a glaring and inexcusable or inexplicable error on the part of the Vice President Commission in its consideration of the evidence in what was, fundamentally, an evidentiary case;
  • no such case was ever presented or even arguable in any of the proposed 27 grounds of appeal;
  • such an application to appeal is not justified by merely asserting the existence of error as to the acceptance of certain evidence or mischaracterising the asserted error as being of a nature that alters the asserted error from one of fact to one of law; and
  • what is set out immediately above is precisely the case conducted by Ms Kelsey in that her submissions either misunderstood what was required of her to establish a valid ground of appeal, or she wilfully mischaracterised her complaints about the Primary Decision in order to artificially elevate her dispute to the level required by section 557(1) of the IR Act.[87]
  1. [80]
    Ms Kelsey submitted that:
  • the Council's criticism of her for seeking for the Court to '… retry the evidentiary hearing before the Commission' misunderstands that the Court's very function on appeal is to undertake a real review of the evidence; and the related statement that it is '… effectively impossible' to overturn factual findings is similarly inconsistent with settled High Court authority; and
  • the Council's submissions that her applications to appeal and amend were brought vexatiously do not grapple with any authority in respect of the categories of conduct that rise to vexation or the bases on which such serious inferences ought to be drawn.[88]

Were Ms Kelsey's application to amend and her substantive appeal made vexatiously?

  1. [81]
    The Council submitted, that in relation to the categories of complaint alleging error of law due to inadequacy of reasons and the categories of complaint alleging errors of fact, that the Court should be satisfied that Ms Kelsey's application to appeal and her application to Amend '… were made vexatiously' in that the limitations imposed by law on the prospects of the content of the appeal were self-evident from the outset and were very likely to have caused the Court to rule as it did.[89]
  1. [82]
    I accept that, in an appeal by way of re-hearing where vitiating error must be shown, the principles about adequacy of reasons (paragraphs [215] to [217] of the Appeal Decision), the principles about appellate interference with findings of fact (paragraphs [220] to [228] of the Appeal Decision) and the principles about the inferences that may be drawn from objective facts where civil penalties are sought (paragraphs [319] to [324] of the Appeal Decision) are limitations in succeeding on such grounds.  However, simply because that is the case does not mean these complaints by Ms Kelsey about the Primary Decision were made vexatiously.
  1. [83]
    Having regard to Ms Kelsey's categories of complaint alleging errors of law due to inadequacy of reasons and the categories of complaint alleging errors of fact, and to the submissions she made about those categories of complaint (referred to across paragraphs [229]-[723] of the Appeal Decision), including Ms Kelsey's arguments about leave being given in the public interest to appeal about the categories of complaint alleging errors of fact (see paragraphs [56]-[88] of the Appeal Decision),  I am unable to reach the conclusion that Ms Kelsey's predominant purpose was to harass or embarrass the Council and the Councillors, or that her purpose was to gain a collateral advantage unrelated to rights she sought to enforce. From my reading of the written submissions made by Ms Kelsey and from her pressing of these complaints in the appeal hearing, I can only conclude that the complaints were pursued for the sole purpose of obtaining  a re-trial.
  1. [84]
    That is to say, having regard to the above matters, I am unable to infer that these complaints by Ms Kelsey about the Primary Decision were made for any other purpose other than to ultimately obtain the relief she sought under the IR Act and under the PID Act as set out in the application for final relief made to the Commission. Further, having regard to the remaining specific proposed grounds of appeal pursued by Ms Kelsey, not just the categories of complaint pointed to by the Council, and from her conduct in pursuing all matters before the Court as currently constituted, no other purpose can be inferred.
  1. [85]
    Indeed, the Council did not point to any other purpose and, in its written costs submissions in reply, accepted that its claim about vexation was only faintly pressed.[90]
  1. [86]
    The Councillors submitted that:
  • as stated by Ms Kelsey in her application to appeal, it was filed for the sole purpose of preserving her ability to appeal the Primary Decision because she did not have the opportunity to consider or take advice on appeal prospects or on available grounds of appeal;
  • this was an improper purpose for filing a notice of appeal, causing these proceedings to be commenced in that:
  1. –at the time of commencing the proceedings, Ms Kelsey did not know if she intended to appeal or not; and
  2. –she failed to comply with the Rules in their entirety, and paid no regard to the obvious prejudice to them, including reputational damage; and
  • having commenced her proceedings for an improper purpose, and after further delay, Ms Kelsey made a further deliberate decision to continue the proceedings against each of the Councillors by:
  1. –seeking leave to amend her application to appeal; and
  2. –pressing her appeal, based on the 27 grounds of appeal.[91]
  1. [87]
    I accept that Ms Kelsey did not comply with the Rules in making her application to appeal, and that it was self-evidently filed to preserve her ability to appeal against the Primary Decision. However, those facts alone do not compel the conclusion that the application to appeal was made predominantly to harass or annoy the Councillors or was made for some collateral advantage unrelated to the ultimate relief she sought in the proceeding before me.
  1. [88]
    Looking at all the facts and at all of Ms Kelsey's conduct, including her application to amend, particularly where the Council and the Councillors did not contend (before me) that Ms Kelsey's application to appeal was not capable of amendment (as opposed to whether it should be amended as a matter of discretion) the only inference that may be drawn is that Ms Kelsey's purpose of pressing her application to amend and her substantive appeal was to obtain the relief she was seeking from the Court.
  1. [89]
    For these reasons, I cannot conclude that Ms Kelsey's application to amend, and the pressing of her substantive appeal, were made vexatiously.

Were Ms Kelsey's application to amend and her substantive appeal made without reasonable cause or would it have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success?

The reasonableness, fairness or justification ground

  1. [90]
    The Council submitted that:
  • despite contending what was alleged was an error of law, the complaint could only properly be characterised as an error of fact;
  • such clear distinctions between errors of fact and errors of law ought to have been evident, or, in the alternative, grounds of that nature ought properly to have been abandoned during the hearing once the critical aspect underpinning this ground was conceded by Ms Kelsey, namely, that an assessment of the reasonableness, fairness or justification of the Councillors' decision was not a legal element of the combined effect of sections 285(1)(a)(ii) and 306(2) of the IR Act;[92] and
  • despite making this concession, Ms Kelsey continued to agitate this ground which, '…objectively and subjectively, had no reasonable prospects of success.'[93]
  1. [91]
    Ms Kelsey submitted that:
  • the thrust of her argument on appeal was that, in assessing why the Councillors were motivated to vote as they did, the Vice President was required to consider all the relevant evidence and the inferences that might be drawn from it;
  • the question she raised was whether paragraph [803] of the Primary Decision, read together with the balance of the Primary Decision, demonstrated that the Vice President had approached his fact finding by closing his mind to particular categories of evidence and, if that is what occurred, then the error was one that arguably fell within the second category dealt with in Azzopardi v Tasman UEB Industries Ltd ('Azzopardi')[94] and therefore amounted to an error of law because it essentially involved the Vice President asking himself the wrong question; and
  • while her arguments were rejected by the Court, that does not mean that this aspect of the challenge to the Vice President's decision was always doomed to fail.[95]
  1. [92]
    This specific ground of appeal concerned paragraph [803] of the Primary Decision where the Vice President stated:
  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.
  1. [93]
    In the next paragraph, the Vice President went on to state (citations omitted):
  1. [804]
    The point is well illustrated in CFMEU v Anglo Coal (Dawson Services) Pty Ltd.  In that case, the Full Court was required to consider a claim for adverse action arising out of the taking of sick leave.  The employer had dismissed the employee for falsely claiming that he was sick.  The evidence at trial revealed that the employee was in fact sick.  However, notwithstanding that the claim for sick leave was validly made, because the employer's reason was that the employee had been dishonest, the employer was found not to have contravened ss 340(1) or 352 of the FW Act.  This was so notwithstanding the finding by Jessup J that the worker was wrongfully dismissed or Rangiah J's finding that it was inevitable that the worker would have been successful with an unfair dismissal claim.
  1. [94]
    I addressed this specific ground of appeal in paragraphs [120] to [182] of the Appeal Decision. For the reasons I gave, I found this proposed ground of appeal was about an alleged error of fact and not alleged an error of law.[96] Among those reasons were the authoritative decisions concerning the cognate provisions in the Fair Work Act 2009, namely:
  • the decision of French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[97] that the question of why adverse action was taken is one of fact which must be answered in light of all of the facts established in the proceeding;[98]
  • the decision of Rangiah J, as a member of the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union and Another v Anglo Coal (Dawson Services) Pty Ltd,[99] that even if a reason for taking adverse action, while genuine, was wrong, that did not mean a respondent had failed to discharge the onus on them;[100] and
  • the decisions of French CJ and Kiefel J and of Gageler J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[101] that an objective test is not involved[102] and that the relevant inquiry of why adverse action was taken is into the mental processes of decision-maker.[103]
  1. [95]
    In light of these authorities, objectively, the complaint made in proposed ground of appeal 1 could never have been about an alleged error of law.
  1. [96]
    Indeed, after she made the application to amend, Ms Kelsey, in her written appeal submissions in reply, but before the oral hearing, conceded that an assessment of the reasonableness, fairness or justification of the Councillors' decisions (to vote to terminate her employment) was not a legal element of the combined effect of s 285(1)(a)(ii) and s 306(2) of the IR Act.[104] 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.'[105] As I found, that submission betrayed the conclusion that proposed ground of appeal 1 did not allege an error of law, but alleged an error of fact.[106]
  1. [97]
    Ms Kelsey's costs submissions cannot be accepted.
  1. [98]
    The second category in Azzopardi is that any error by a judge in directing themselves to the law is an error of law.[107] Ms Kelsey alleges the Vice President approached his Honour's fact finding by closing his mind to particular categories of evidence, namely, making an error of the kind described in Earthline. Such an allegation, for the reasons I gave in the Appeal Decision in paragraphs [135]-[142], describes an alleged error of fact. 
  1. [99]
    Further, because Ms Kelsey conceded, in her written appeal submissions in reply, that the assessment of the reasonableness, fairness or justification of the Councillors' decisions was not a legal element of the matter the Vice President had to determine, it was therefore self-evident that the Vice President asked the correct question. The Vice President, in paragraph [803] of the Primary decision, identified the correct test to apply and his Honour clearly did not err in law by asking the wrong question.
  1. [100]
    Ms Kelsey submits that merely because she failed on this ground of appeal, that does not mean it was doomed to fail. This submission fails to take into account the clear authorities to which I have referred and the concession she made in her written appeal submissions in reply.
  1. [101]
    By reference to the decision of Wilcox CJ in Imogen, in light of the facts of the case, the Primary Decision and proposed ground of appeal 1, which was framed as alleging an error of law, there was no substantial prospect of achieving success on that ground. It was alleging an error of fact. It was one made, therefore, without reasonable cause.
  1. [102]
    For the same reasons, I also conclude that it would have been reasonably apparent to Ms Kelsey, at the time she made the application to amend, that proposed ground of appeal 1 had no reasonable prospect of success.

The accessorial liability ground

  1. [103]
    By proposed ground of appeal 2, Ms Kelsey alleged that the Vice President erred in law in finding that it was an essential element of establishing the involvement of the Councillors in the Council's contravening conduct, that each of the Councillors knew how the other Councillors were going to vote on the motion to terminate her employment.
  1. [104]
    Ms Kelsey's pleaded[108] and argued case (by reference to authority)[109] before the Vice President was that by their vote for a proscribed intention, each Councillor was, pursuant to s 571 of the IR Act, an accessory to the Council's proven contravention of the IR Act.
  1. [105]
    The Councillors contended before the Vice President (by reference to authority)[110] that if they had a proscribed intention, that was not sufficient to know that they knew of the Council's proscribed intention, and that Ms Kelsey must show that the relevant Councillor had knowledge of the proscribed intention of two or three Councillors, depending on the identities of the persons.[111]
  1. [106]
    In her written principal appeal submissions, Ms Kelsey submitted:
  1. 162.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. 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. 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. The contrary conclusion would lead to absurd outcomes and the avoidance of accessorial liability on the part of, for example, directors of a company board, in the absence of direct evidence that they knew how other directors would vote on a given resolution (even if they all independently voted for disparate unlawful reasons).
  1. [107]
    In their written appeal submissions, the Councillors submitted:
  1. 150.As was correctly identified in the Primary Decision, the first respondent's reason for acting is to be determined by examining the reasons of each of the councillors who voted. Therefore, to have actual knowledge that the first respondent acted for a proscribed reason, the purported accessories need to have actual knowledge of the proscribed intention of each person who voted for a proscribed reason. If they do not have knowledge of those matters, they do not know of the first' [sic] respondent's proscribed intention.
  2. 151.In this case, the appellant adduced no evidence of any such knowledge, nor was it put to specific witnesses that they knew the specific reasons why other councillors were going to vote in a particular way. In circumstances where that knowledge was denied and where there was no evidence to the contrary, there was no error in the Vice President dismissing the claim.
  3. 152.The error in the appellant's submissions can be seen at [162]. Contrary to the appellant's submissions, if the hypothetical councillor whose vote, taken for a proscribed reason, caused the threshold to be overtaken, they would only be a person involved in the contravention if they knew that the council was acting for a proscribed reason. That is, they need to know that it was their vote, in combination with other votes cast for a proscribed reason, which led to the council having a proscribed intention. If they don't know that, they do not have knowledge of the essential elements of the offence that the council acted for a proscribed reason. They must know that the council was acting for a proscribed reason. It is not sufficient for them to simply know that their own vote was cast for a proscribed reason.
  1. [108]
    In paragraphs 91-92 of Ms Kelsey's written appeal submissions in reply, filed on 9 October 2023, she conceded that her principal submissions (as set out above) did '…overstate the error committed by the Vice President' based upon the decision of Logan and Katzmann JJ at paragraph [29] of Sabapathy v Jetstar Airways.[112]   However, in that case, their Honours stated at paragraphs [26] to [29]:
  1. 26The allegations against each respondent should have been pleaded in separate paragraphs. The relationship between some of the "Adverse Conduct" and the termination was obscure. The basis for the allegations that eight of the nine pilots named as respondents were aware that their assessments would be used by Jetstar to terminate Mr Sabapathy's employment in 2019 was neither pleaded nor particularised. The notion that it was relevant to their liability as accessories that none of them recommended or advised against termination is frankly preposterous. Furthermore, the allegations were made without sufficient attention to the relevant principles.
  2. 27Section 550 relevantly provides that:
  1. (1)
    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
  2. (2)
    A person is involved in a contravention of a civil remedy provision if, and only if, the person:
  1. (a)
    has aided, abetted, counselled or procured the contravention; or
  2. (b)
    has induced the contravention, whether by threats or 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.[113]
  1. 28The relevant principles were explained by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[178] cited with approval by Flick and Reeves JJ in Fair Work Ombudsman v Hu (2019) 289 IR 240 at [15]:
  1. [176]
    … In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of "the essential matters" which go to make up the events, whether or not the person knows that those matters amount to a [contravention]: Yorke v Lucas at 667 …
  2. [177]
    Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ …
  3. [178]
    The notion of being "knowingly concerned" in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring" a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which "implicates or involves him or her" in the contravention so that there be a "practical connection between" the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]-[325].
  1. 29One of the essential elements of the cause of action under s 340 was that Jetstar terminated Mr Sabapathy's employment because he had made one or more of the relevant complaints or inquiries about his workplace rights. Actual knowledge of the "essential matters" which go to make up the events is an essential element of a cause of action based on s 550. That meant that it was a material fact and it had to be pleaded. Yet nowhere in the amended statement of claim is it pleaded that any of the nine pilots alleged to have been accessories to Jetstar's contravention had actual knowledge that Jetstar terminated Mr Sabapathy's employment for the reason he alleged.
  1. [109]
    Ms Kelsey then went on to submit (footnotes omitted):
  1. 93.Notwithstanding that concession, the Vice President's approach on accessorial liability is still affected by error:
  2. 94.Having regard to the concession at IRS [147]:
  1. (a)
    Cr Dalley would have been an accessory if:
  1. (i)
    she was motivated by a proscribed reason; and
  2. (ii)
    she knew that one other individual respondent was so motivated;
  1. (b)
    any of the other individual respondents would have been an accessory if:
  1. (i)
    that person was motivated by a proscribed reason; and
  2. (ii)
    Cr Dalley was so motivated and the other person knew of that motivation; or
  3. (iii)
    if Cr Dalley was not so motivated, that two other individuals were so motivated and that first individual respondent knew of that motivation.
  1. 95.However, that is not the way his Honour reasoned. Rather, as appears from the above extracts, his Honour held that:
  1. (a)
    to be an accessory, an individual respondent must have known how each of the seven persons who voted for dismissal would vote, and that those persons' motivations were tainted;
  2. (b)
    they must have known that the vote would amount to a contravention of the IR Act, which is contrary to settled principle.
  1. [110]
    The Councillors submitted that the decision to continue the proceedings against them was without reasonable cause because:
  • it would have been apparent to Ms Kelsey from the commencement of the proceeding, and was otherwise expressly known by her from 9 October 2023 by her appeal submissions in reply in which she had acknowledged that her grounds of appeal were incorrect, in that:
  1. –for Cr Dalley to be an accessory, it would need to be established she was motivated by a proscribed reason and that she knew that one other individual respondent was so motivated; and
  2. –for any of the other individual respondents to be an accessory, it would need to be established that person was motivated by a proscribed reason, and Cr  Dalley was so motivated and the other person knew of that motivation,  or if Cr Dalley was not so motivated, that two other individuals were so motivated and that the first individual respondent knew of that motivation;
  • having acknowledged that this was the correct legal test for determining accessorial liability, Ms Kelsey should have immediately withdrawn her application to amend and her application to appeal as she was aware that:
  1. –this was never pleaded by her as part of her case before the Commission;
  2. –there was no evidence that any Councillor was aware of, or knew how any other Councillor was going to vote, or the reasons the person may have held for voting in any particular way; and
  3. –none of the Councillors were cross-examined about these matters; and
  • despite this, she pressed her application to amend and her application to appeal against the Councillors.[114]
  1. [111]
    The Council submitted that Ms Kelsey, despite conceding that her principal submissions were in error,[115] nonetheless maintained a spurious argument that the Vice President was still in error, by mischaracterising his Honour's reasoning to pointlessly maintain this ground at the hearing. [116]
  1. [112]
    Ms Kelsey relevantly submitted that:
  • in respect of the general protections claim, she accepts that her amended contentions did not plead that the Councillors knew that their vote, combined with others, would tip the balance in favour of a termination vote; however, the case was run at all times, and was understood by the Councillors as being run, based on an allegation that they did have that knowledge; and
  • in her written appeal submissions in reply to the Court, she properly made a concession on her earlier arguments based on accessorial liability, by reference to authority to which the Councillors did not advert; and while she unsuccessfully maintained that the Vice President reasoned that he had to be satisfied that all seven individual respondents knew how one another was going to vote, that argument was reasonably open having regard to the text of paragraphs [294] and [760] of the Primary Decision.[117]
  1. [113]
    The issue for this proposed ground, in respect of the potential application of s 545(2)(a)(i) or (ii) of the IR Act, is its prospects of success at the time the application to amend was made, in light of the facts, the Primary Decision and the point taken in this ground. I am unable to form the view that there was a reasonable prospect of success for this proposed ground of appeal having regard to these matters. This is for two reasons.
  1. [114]
    First, the authorities, including one of the authorities cited by Ms Kelsey at first instance,[118] clearly establish the principle that in order for a person to be knowingly concerned in a statutory contravention, the person must have been an intentional participant, with knowledge of the essential elements constituting the contravention, although it is not necessary the person with such knowledge also know that those elements amount to a contravention.[119] This was not the case pleaded and argued by Ms  Kelsey about the alleged accessorial liability of the Councillors of the Council's alleged contravention of s 285(1) of the IR Act. The Councillors defence was that Ms Kelsey had to establish such knowledge. The above principle was one of law and was clearly established before Ms Kelsey made her application to amend; and it was a principle unhesitatingly accepted as correct by the Vice President in paragraphs [761] and [762] of the Primary Decision. Under  the IR Act, only the Council, as the employer, could have contravened s 285(1) of the IR Act in dismissing Ms Kelsey. To be an accessory under s 571(2) of the IR Act, a Councillor must have known the Council dismissed Ms Kelsey because she exercised workplace rights; and to know that, each Councillor, who voted to dismiss Ms Kelsey for that reason, must have known a sufficient number of other Councillors voted to dismiss Ms Kelsey for that reason.
  1. [115]
    Secondly, before me, Ms Kelsey's concession was based upon the decision in Sabapathy v Jetstar Airways. But, having regard to paragraphs [26] to [29] of that decision I have set out above,  Sabapathy v Jetstar Airways did not create any new principle or add certainty or clarity to the established principle, and merely reflected the principle (set out above) that was clearly established at the time Ms Kelsey made her application to amend.
  1. [116]
    For these reasons, I am unable to form the view that there was a reasonable prospect of success for proposed ground of appeal 2.
  1. [117]
    Further, despite her concession in her written appeal submissions in reply, Ms Kelsey  still pressed proposed ground of appeal 2 on the basis that the Vice President still erred in law by reasoning that:
  • to be an accessory, an individual Councillor must have known how each of the seven persons (namely, the Councillors) 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.
  1. [118]
    I am unable to form the view that there was a reasonable prospect of success for this further allegation. As I found in paragraph [730] of the Appeal Decision:
  • it was clear, by paragraph [762] of the Primary Decision, 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; and
  • the Vice President did not, in any of the paragraphs of the Primary Decision, referred to by Ms Kelsey in her written appeal submissions,[120] hold that the Councillors had to know that the essential matters or elements constituted a contravention of the IR Act.
  1. [119]
    To submit, as Ms Kelsey does, that the first allegation (referred to above in the first dot point of paragraph [117]) was reasonably open having regard to the text of paragraphs [294] and [760] of the Primary Decision, is disingenuous. This is because of the very clear text used by the Vice President in paragraph [762] of the Primary Decision, where that paragraph was unmistakenly the Vice President's concluded reasoning about what needed to be proved for his Honour to find the Councillors were accessories.
  1. [120]
    For these reasons, this further allegation pressed on appeal was made without reasonable cause.

The categories of complaint alleging errors of law due to inadequacy of reasons and the categories of complaint alleging errors of fact

  1. [121]
    By way of overview, the Council submitted these categories of complaint:

[C]onsisted of a multitude of complaints alleging inadequacy of reasons which underpinned the factual findings reached by the Vice President in the Primary Decision following his assessment of the evidence at trial. All of these complaints were, and were found to be, no more than disagreements by the Appellant as to the factual conclusions reached by the Commission, and none of them could objectively have been thought to have arisen to a level that they either amounted to questions of law or were so seriously flawed as to amount to grounds for appellant [sic] interference.[121]

  1. [122]
    The Council then submitted that:
  • the Court should be satisfied that Ms Kelsey's application to appeal and her application to amend were made without reasonable cause, in that the limitations imposed by law on the prospects of the content of the appeal were self-evident from the outset and were very likely to have caused the Court to rule as it did;[122]
  • Ms Kelsey's application to amend, with that object and that content, was therefore commenced without reasonable cause;[123]
  • it must have been reasonably apparent to Ms Kelsey that the proceeding, pressed in the manner that it was, '…had no reasonable prospect of success', because it:
  1. –was comprehensively denied by the legal limitations on such an appeal; and
  2. –wholly depended for its success upon persuading the Court, with significantly constrained powers as to allegations of error of fact, to decide to review, revisit and overrule comprehensive factual findings made after a long evidentiary trial;[124] and
  • in such circumstances, it ought to be accepted that none of the grounds raised by Ms Kelsey had any reasonable prospects of success at any time, and that Ms Kelsey should reasonably have been aware of that situation.[125]
  1. [123]
    The Council also submitted that Ms Kelsey:
  • was unable to demonstrate any matter where the Vice President had misused his advantage in hearing each of the witnesses give their evidence in person; and
  • was unable to establish examples which showed the Primary Decision was wrong, or glaringly improbable, or contrary to any compelling inferences.[126]
  1. [124]
    Ms Kelsey relevantly submits that:
  • while the Court found that none of the bases pressed by her in respect of inadequacy of reasons were made out, the Council nor the Councillors articulate why those aspects of the appeal were not fairly arguable;
  • the Court's findings of adequacy of reasons were informed in part by inferences that the Court held were fairly able to be drawn from primary facts that she submitted were not dealt with by the Vice President, or that were not dealt with adequately;
  • relatedly, she had argued that, having regard to the reverse onus in s 306 of the IR Act, it was for the Council to demonstrate that the innocent inferences that it submitted were open on the evidence were the more likely ones, and while that argument was rejected, it was reasonably arguable by having regard to Masters Home Improvement Pty Ltd v North East Solution Pty Ltd ('Masters Home Improvement');[127] and
  • otherwise, the fact that her attacks on sufficiency of reasons were unsuccessful is '…not a basis for concluding, in hindsight,' that those grounds trigger either s 545(2)(a)(i) or (ii) of the IR Act.[128]
  1. [125]
    Ms Kelsey further submitted that the criticism of her reliance on State Rail Authority of New South Wales (in liq) v Earthline Constructions Pty Ltd ('Earthline')[129] should also be rejected because:
  • the Vice President failed to grapple with the real strength of the evidence before him and that, in doing so, his Honour had erred as a matter of law by reference to Earthline;
  • the characterisation of Earthline as describing an error of law was based on the decision of the New South Wales Court of Appeal in Sharman v Boshell[130] ('Sharman') and, in doing so she was not submitting that any incorrect finding of fact amounted to an error of law; rather that the failures to deal with particular evidence in the primary proceedings were so fundamental as to amount to an error of law;
  • while the Court ultimately found that the statements in Sharman were ambiguous and was not prepared to characterise the arguments put by Ms Kelsey by reference to Earthline as alleged errors of law, it could hardly be said that, in relying on a decision of an intermediate appellate court, Ms Kelsey was advancing a category of error that was doomed to fail; and
  • otherwise than by reference to global statements, the Council and the Councillors do not articulate why the grounds relied upon to argue that the Vice President did not deal with the real strength of the evidence were not fairly arguable.[131].

The complaints

  1. [126]
    The categories of complaint in Part D.3 of Ms Kelsey's written principal appeal submissions ('the Part D.3 complaints') were about alleged inadequacy of reasons and alleged errors of fact in respect of the Vice President's assessment of Ms Kelsey's alignment claim. These categories of complaint, and the paragraphs of the Appeal Decision that dealt with them, were:
  • that the Vice President misunderstood her alignment case (paragraphs [239]-[275] of the Appeal Decision); and
  • about the Vice President's reasons and assessment regarding:
  1. –the content of the WhatsApp messages (paragraphs [276]-[411] of the Appeal Decision);
  2. –the fact that not all the WhatsApp messages and social media communications between most of the Councillors, who used such platforms, were in evidence (paragraphs [412]-[427] of the Appeal Decision);
  3. –the debate rules (paragraphs [428]-[444] of the Appeal Decision); and
  4. –the Hallam email exchange (paragraphs [445]-[467] of the Appeal Decision).
  1. [127]
    I determined all of these complaints adversely to Ms Kelsey.
  1. [128]
    The complaints in Part D.4 of Ms Kelsey's written principal appeal submissions ('the Part D.4 complaints') were about alleged inadequacy of reasons and alleged errors of fact, principally in respect of the Vice President's assessment of the evidence of five of the Councillors.
  1. [129]
    The complaints, and the paragraphs from the Appeal Decision that dealt with them, were about:
  • the Vice President's reasons and assessment of the evidence given by five of the Councillors for their reasons to vote to dismiss Ms Kelsey, namely:
  1. –Cr Dalley (paragraphs [478]-[541] of the Appeal Decision);
  2. –Cr Breene (paragraphs [542]-[555] of the Appeal Decision);
  3. –Cr Lutton (paragraphs [556]-[579] of the Appeal Decision);
  4. –Cr Swenson (paragraphs [580]-[600] of the Appeal Decision); and 
  5. –Cr Pidgeon (paragraphs [601]-[614] of the Appeal Decision); and
  • the Vice President's reasons and assessment of the evidence about:
  1. –the way the PID was sent to the Councillors (paragraphs [615]-[622] of the Appeal Decision); and
  2. –the Councillors' reliance on legal advice in making their decisions to vote to dismiss Ms Kelsey (paragraphs [623]-[633] of the Appeal Decision).
  1. [130]
    I determined all of these complaints adversely to Ms Kelsey.

Alleged inadequacy of reasons

  1. [131]
    I am unable to conclude that these complaints were made without reasonable cause or that it would have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success.
  1. [132]
    There was a significant amount of oral and documentary evidence before the Vice President. The principal complaints made by Ms Kelsey, in respect of the Part D.3 complaints, were that the Vice President did not refer to or adequately deal with certain evidence,[132] including a number of the WhatsApp messages in evidence[133] and the absence of certain social media communications.[134]
  1. [133]
    The principal complaints made by Ms Kelsey, in respect of the Part D.4 complaints, were that the Vice President did not refer to or adequately deal with certain evidence relevant to the reasons given by Cr Dalley,[135] Cr Breene,[136] Cr Lutton,[137] Cr  Swenson[138] and Cr Pidgeon[139] for their vote to terminate Ms Kelsey's employment; and further, that the Vice President did not refer to or adequately deal with certain evidence relevant about the way the PID complaint was sent[140] and the Councillors' reliance on legal advice for their vote.[141]
  1. [134]
    I cannot say that these complaints, having regard to the reasons in the Primary Decision, did not have a substantial prospect of success. As is evident from my reasons, in deciding these complaints in both Parts D.3 and D.4, it was necessary to carefully consider the evidence, the arguments made about the evidence and the reasons given by the Vice President.
  1. [135]
    While I did not find any vitiating error, I cannot say such complaints had no reasonable prospects of success. They had reasonable prospects of success particularly in relation to the complaints about the WhatsApp messages. In this regard I refer to paragraphs [291] to [308], [376] and [410] of the Appeal Decision.

Alleged Fox v Percy and Earthline errors

  1. [136]
    In the Appeal Decision, at paragraphs [218] to [228], I set out the principles about appellate interference with respect to findings about the assessment of credit and findings of fact.
  1. [137]
    I was required to conduct a real review of the evidence, the subject of the complaints made by Ms Kelsey, about findings of fact. This included:
  • a review of the WhatsApp messages in evidence and the inferences that Ms Kelsey claimed should have been drawn from them (paragraphs [325] to [347] and [361] to [411] of the Appeal Decision);
  • a review of the evidence given by some of the Councillors about the deletion of certain WhatsApp communications and other social media communications (paragraphs [348] to [360] of the Appeal Decision);
  • a review of, in particular, Cr Dalley's evidence about the debate rules (paragraphs [428] to [444] of the Appeal Decision);
  • a review of the documentary evidence and, in particular, Cr Dalley's evidence, about the Hallam email exchange (paragraphs [445] to [467] of the Appeal Decision); and
  • a review of the evidence given by Cr Dalley, Cr Breene, Cr Lutton, Cr Swenson, and Cr Pidgeon (paragraphs [478] to [636] of the Appeal Decision).
  1. [138]
    Having regard to the evidence, the complaints made on appeal, the Vice President's reasons, and to the arguments made on appeal by Ms Kelsey, the Council and the Councillors (which are summarised in my reasons), I am unable to conclude these complaints had no substantial prospects of success or that it would have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success. 
  1. [139]
    I accept that the Court could only intervene about factual findings that were glaringly improbable or contrary to compelling inferences; and further, that restraint should also be observed about facts found likely to be affected by the Vice President's impressions about the credibility of witnesses formed from his Honour seeing them give evidence. As is evident from my review of the evidence the subject of these complaints made by Ms Kelsey, and from the reasons I gave, I had regard to those principles.
  1. [140]
    However, also from my review of the evidence and the arguments made, it is not evident that the complaints made by Ms Kelsey about alleged errors of fact must have failed.
  1. [141]
    In particular, many of the complaints about what inferences should have been drawn from the WhatsApp communications were not doomed to failure. In this regard, I refer to:
  • the Mitcham Council messages (paragraph [332] of the Appeal Decision);
  • the messages about support for Mayor Smith (paragraphs [333] to [335] of the Appeal Decision);
  • the messages about the hearing on 25 January 2018 (paragraphs [338] to [347] of the Appeal Decision);
  • the reference to Psalms 7:14-16 (paragraphs [361] to [366] of the Appeal Decision);
  • the communication about Ms Kelsey being hit by the door on the way out (paragraphs [367] to [383] of the Appeal Decision); and
  • the inferences to be drawn from the deleted WhatsApp communications and other social media communications (paragraphs [412] to [427] of the Appeal Decision).
  1. [142]
    The same can be said about the complaint about the debate rules as referred to in paragraphs [428]-[444] of the Appeal Decision and about the Hallam email exchange as referred to in paragraphs [445] to [467] of the Appeal Decision. These matters did primarily come down to a review of the evidence given by Cr Dalley.
  1. [143]
    In determining these complaints, it was also necessary to make a decision about the law in respect of inferences to be drawn where civil penalties are sought, having regard to s 306(2) of the IR Act.[142]
  1. [144]
    Of the reasons of the Vice President about the credit of the Councillors who were the subject of complaint by Ms Kelsey on appeal, I cannot conclude that these complaints were doomed to failure. Simply because they were unsuccessful does not mean they were made without reasonable cause or that it would have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success. Most of these complaints were not answered solely by deferring to the Vice President's advantage in hearing and seeing the witnesses give evidence. Most were dealt with by also conducting a review of the evidence. This was the case about the complaints made about the findings concerning:
  • Cr Dalley, in particular:
  1. –at paragraphs [491] to [503] of the Appeal Decision (the Relay for Life);
  2. –at paragraphs [504] to [509] of the Appeal Decision (the USA Delegation);
  3. –at paragraphs [510] to [512] of the Appeal Decision (the meeting on 5 December 2017);
  4. –paragraphs [513] to [522] of the Appeal Decision (Acceptable Request Guidelines); and
  5. –paragraphs [523] to [534] of the Appeal Decision (the rejection of Ms Kelsey's submission that Cr Dalley had been outraged by the lodgement of the PID);
  • Cr Breene, in particular at paragraphs [551] to [554] of the Appeal Decision;
  • Cr Lutton, in particular at paragraphs [564] to [567] and [568] to [577] of the Appeal Decision;
  • Cr Swenson, in particular at paragraphs [589] to [599] of the Appeal Decision; and
  • Cr Pidgeon, in particular at paragraphs [611] to [612] of the Appeal Decision.
  1. [145]
    The Councillors submit that, in respect of the Directions Orders I made as a consequence of my adoption of the parties' agreed proposal, Ms Kelsey did not comply with some of the Directions Orders in that she was unable to specify the precise findings of fact said to be erroneous, the findings of fact that should have been made and how such errors should be corrected on appeal. The Councillors submit such inability demonstrates the appeal was made without reasonable cause or that it would have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success. This was said to be the case because, if Ms Kelsey could not comply with those Orders, then she had no reasonable basis for asking the Court to determine that the facts found by the Vice President were in error.[143] Despite some initial attraction to this argument, I cannot accept it. This is because, despite Ms Kelsey's non-compliance with some of the Directions Orders I made (see paragraphs [94]-[117] of the Appeal Decision) the parties did fully argue the complaints made by Ms Kelsey as set out in Parts D.3 and D.4 of her principal written submissions. It is from that argument that I am able to assess the application of s 545(2)(a)(i) or (ii) of the IR Act.

Conclusion

  1. [146]
    As I stated in paragraphs [326] and [471] of the Appeal Decision it was not always clear, by Ms Kelsey's written and oral submissions in respect of the Part D.3 and D.4 complaints, whether the complaints were about alleged inadequacy of reasons or about factual errors of the kind referred to in Fox v Percy[144] or Earthline. Despite this, I was able to determine the various complaints made by Ms Kelsey about alleged inadequacy of reasons and the alleged errors of fact.
  1. [147]
    Again, as I stated in paragraph [82] of these reasons, I acknowledge the challenges that may be faced by an appellant in an appeal by way of re-hearing, having regard to the principles about adequacy of reasons, appellate interference with findings of fact, and what inferences may be drawn from established facts where civil penalties are sought.  But again, simply because these limitations exist does not mean that all of Ms Kelsey's complaints about these matters in the Primary Decision were made without reasonable cause or that it would have been reasonably apparent to her that they had no prospect of success.
  1. [148]
    In respect of the complaints made in parts D.3 and D.4 of Ms Kelsey's principal appeal submissions, for the reasons I have given above, I am not satisfied that they must have failed.

Other proposed grounds of appeal

That the Vice President committed the same error in approach as the trial judge in TechnologyOne

  1. [149]
    At paragraphs [637] to [723] of the Appeal Decision, I dealt with Ms Kelsey's other complaint that the Vice President committed the same error in approach as the trial judge in TechnologyOne.[145] The Council and the Councillors rejected this complaint. I gave detailed reasons for rejecting this complaint. This came down to an examination of the relevant case law (paragraphs [652] to [655] of the Appeal Decision) and an examination of the evidence to which Ms Kelsey referred as part of this complaint (paragraphs [656] to [723] of the Appeal Decision).
  1. [150]
    The complaint was:
  • that the Vice President did not deal with the evidence given by the other five non-respondent councillors about Ms Kelsey's work performance and about the vote that was taken to dismiss Ms Kelsey; and
  • that the Vice President did not deal with the content of the Hunter Report and did not reconcile that report with the evidence of the Councillors.
  1. [151]
    As is evident in paragraphs [656] to [687] of the Appeal Decision, where I address the part of the complaint that the Vice President did not deal with the evidence given by the other five non-respondent councillors, and in paragraphs [688] to [711], where I address the complaint that the Vice President did not deal with the content of the Hunter Report, my conclusions involved a real review of the evidence.
  1. [152]
    I cannot form the view that these complaints had no substantial prospect of success. In particular, I had to determine whether, having regard to these complaints, the                       Vice President failed to answer the essential question in the case. This involved conducting a review of the probative nature of the evidence referred to by Ms Kelsey, in particular, the Hunter report. Whilst these complaints may not have been the strongest of the complaints made by Ms Kelsey, they were arguable and could not be said to be doomed to failure.

The Browne v Dunn ground

  1. [153]
    I dealt with this complaint in paragraphs [735] to [783] of the Appeal Decision. This concerned proposed ground of appeal 12.
  1. [154]
    I rejected this proposed ground of appeal because it was clear from the reasons given by the Vice President that his Honour did not misapply the rule in Browne v Dunn (see paragraphs [748] to [783] of the Appeal Decision).
  1. [155]
    In my view, this proposed ground of appeal did not have a substantial prospect of success. This is because that it was clear from the paragraphs of the Primary Decision, that Ms Kelsey sought to impugn, that in fact his Honour was not applying the rule.

The QIRC proceedings grounds

  1. [156]
    These grounds concerned proposed grounds of appeal 13(a) and (b).
  1. [157]
    The complaint was that part of Ms Kelsey's pleaded case was that a reason for her dismissal was the fact that she had commenced the QIRC proceedings on 1 December 2017 but that the Vice President's reasons were ambiguous as to whether he considered that allegation in his Honour's decision.
  1. [158]
    For the reasons I gave in paragraphs [794] to [795] of the Appeal Decision, by reference to paragraphs [787], [806] and [822] of the Primary Decision, it was clear that his Honour took into account, in coming to his Honour's ultimate conclusion, that some of the Councillors viewed Ms Kelsey as being litigious. For this reason, I am unable to conclude that these proposed grounds of appeal had substantial prospects of success. That is to say, it was clear from the reasons given by the Vice President that this particular allegation by Ms Kelsey was assessed by his Honour in coming to his ultimate conclusion.

Conclusion as to whether I am satisfied of the matters in s 545(2)(a)(i) or (ii) of the IR Act

  1. [159]
    Even though I am satisfied that proposed grounds of appeal 1, 2, 12 and 13 (a) and (b) did not have substantial prospects of success, my discretion to make an order for costs in favour of the Council and the Councillors is not triggered.
  1. [160]
    Conducting an overall assessment of the facts of the case, the specific proposed grounds of appeal and the complaints pursued by Ms Kelsey, and to the Primary Decision relevant to those specific grounds and those complaints, I am not satisfied that Ms Kelsey's application to amend, and her substantive appeal, were made without reasonable cause or that it would have been reasonably apparent to her that they had no reasonable prospect of success. This is because the vast majority of the argument by Ms Kelsey before me was about the complaints about adequacy of reasons and about the complaints of alleged errors of fact. For the reasons I have given I am not satisfied those complaints were made without reasonable cause. For the same reasons, I am not satisfied, in respect of those complaints, that it would have been reasonably apparent to Ms Kelsey that they had no reasonable prospect of success.
  1. [161]
    Because the accessorial liability ground was made without reasonable cause, I did give consideration to whether a costs order should be made in favour of the Councillors. However, as submitted by Ms Kelsey,[146] her pleaded[147] and argued[148] case before the Vice President also was that the Councillors were individually liable under the PID Act.  The Councillors defended that claim before the Vice President.[149] The Vice President dealt with that claim in his Honour's reasons.[150] That separate claim against the Councillors under the PID Act depended on the assessment by the Vice President of the Councillors' reasons to vote to dismiss Ms Kelsey. In the proceeding before me, Ms Kelsey's application to amend and her substantive appeal depended on the success of the complaints made in part D.3 and in part D.4[151] of her principal written submissions. Therefore despite proposed ground of appeal 2 being doomed to failure, my discretion is not triggered to make a costs order in favour of the Councillors. Ms Kelsey made this point in her costs submissions. The Councillors did not file any submissions in reply disputing it.
  1. [162]
    No party argued that the costs reserved from the Interlocutory Decision should be examined under s 545 of the IR Act differently to the other costs of the proceeding before me.

Conclusion

  1. [163]
    For the reasons I have given, my discretion to make orders for costs as sought by the Council and the Councillors is not triggered.

Orders

  1. [164]
    The Court makes the following orders:
  1. 1. The First Respondent's application for costs, including reserved costs, is dismissed.
  2. 2. The application by the Third to Ninth Respondents for costs, including reserved costs, is dismissed.

Footnotes

[1] [2024] ICQ 015 ('Appeal Decision').

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

[3] [2023] ICQ 23 ('Interlocutory Decision').

[4] At the start of the hearing of Ms Kelsey's interlocutory application, she abandoned the application for additional evidence to be heard by the Court. The Councillors were then given leave to withdraw because they had no interest in the application to vacate the suppression orders.

[5] Interlocutory Decision (n 3) [55].

[6] Ibid.

[7] Appeal Decision (n 1) [804]. No party applied for an oral hearing in relation to the issue of the costs of the proceeding before me.

[8] The written costs submissions of the Council filed on 27 August 2024 ('the Council's costs submissions'), para. 1.

[9] The written costs submissions of the Councillors filed on 27 August 2024 ('the Councillors' costs submissions'), para. 2.

[10] The written costs submissions of Ms Kelsey filed on 16 September 2024 ('Ms Kelsey's costs submissions'), para. 4.

[11] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 278 CLR 300, [21] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) (Citations omitted).

[12] Kelsey v Logan City Council and Ors [2021] ICQ 11, [23] ('Kelsey ICQ 2021') (Davis J, President). The Councillors endorsed these submissions by the Council by submitting they correctly set out the law with respect to costs in this jurisdiction: The Councillors' costs submissions, para. 3.

[13] Citations omitted.

[14] Lam v Gold Coast Hospital and Health Service (No 2) [2021] ICQ 017('Lam'), [5] and Kelsey ICQ 2021(n 12), [43]. See also Australian Workers' Union v Leighton Contractors Pty Ltd and Others (No 2) [2013] FCAFC 23; (2013) 232 FCR 248, [8] (Dowsett, McKerracher and Katzmann JJ) in respect of s 570(2) of the Fair Work Act 2009.

[15] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 566-567 (McHugh J) and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, [1] (Brennan CJ) and [67] (McHugh J). In Oshlack v Richmond River Council at [44] Gaudron and Gummow JJ further stated (citations omitted):

  1. It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a 'solicitor and client' basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.

[16] Ms Kelsey's costs submissions, para. 6.

[17] [2024] FCA 227, [3].

[18] Kelsey ICQ  2021 (n 12) [23].

[19] [2014] FWCFB 810; (2014) 240 IR 377 ('Eastern Health').

[20] [2022] QIRC 342 ('Kelsey QIRC 2022').

[21] Lam (n 14).

[22] Citing, as authority for the proposition in para. [6](c) the decision in Australian Workers' Union v Leighton Contractors Pty Ltd and Others (No 2) [2013] FCAFC 23; (2013) 232 FCR 428, [7] (Dowsett, McKerracher and Katzmann JJ), which concerned s 570 of the Fair Work Act 2009.

[23] Citing as authority for the proposition in para. [6](d) the decision in MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2000] ICQ 32; (2000) 164 QGIG 370 (President Hall).

[24] The Council's costs submissions, para. 6 (citing Kelsey ICQ 2021 (n 12), [25] and the Councillors' costs submissions, para. 3.

[25] [2023] FCA 20.

[26] [1996] IRCA 654; (1996) 70 IR 254 ('Imogen').

[27] Ibid 254. The relevant provision was s 347(1) the Industrial Relations Act 1988, which provided:

A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. 

[28] Ibid 257.

[29] Eastern Health (n 19).

[30] Ibid [41].

[31] [2022] ICQ 019, [5] (Davis J, President). See also Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 035, [12] (Martin J, President) in respect of s 335(1)(a) of the Industrial Relations Act 1999, Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 21, [12] (Vice President O'Connor) and Kelsey QIRC 2022 (n 20), [25] (Vice President O'Connor).

[32] Kelsey ICQ 2021 (n 12) [25](c).

[33] R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473 (Gibbs J ), in respect of s 197A of the Conciliation and Arbitration Act 1904 which relevantly provided:

A party to …. a proceeding before the High Court … shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted. the proceeding vexatiously or without reasonable cause.

[34] [1992] FCA 539; (1992) 43 IR 257, 265-265 (Wilcox J).

[35]Imogen (n 26).

[36] Imogen (n 26) 257. Emphasis added.

[37] Ibid 261. See also Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400, [17] (Wright J, President, Hungerford J and Cambridge C). 

[38] [2014] FCAFC 166; (2014) 145 ALD 548.

[39] Emphasis added.

[40] Kelsey ICQ 2021 (n 12) [25](d).

[41] The Council's costs submissions, para. 8. No authority was cited in support of this proposition.

[42] Citing Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 21 ('Chen'), [18] (Vice President O'Connor).

[43] Citing Chen (n 42) [18].

[44] Ms Kelsey's costs submissions, para. 9.

[45] [2011] FWAFB 4014; (2011) 211 IR 374 ('Salva').

[46] Ibid [10], first dot point (Senior Deputy President Watson,  Senior Deputy President Drake and Commissioner Harrison).

[47] Ms Kelsey's costs submissions, para. 10.

[48] Kelsey ICQ 2021 (n 12) [25](d).

[49] Ms Kelsey's costs submissions, para. 10.

[50] Ms Kelsey's costs submissions, para. 9.

[51] Chen (n 42).

[52] [2005] NSWSC 3; (2005) 62 NSWLR 284 ('Degiorgio').

[53] Degiorgio (n 52) [17]-[27].

[54] See also Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254, [58]-[59] (Beazley JA, Barrett JA at [197] and Sackville AJA at [198] agreeing). See also the cases of the New South Wales Court of Appeal cited by Beazley JA at [58] which have approved the reasons given by Barrett J in Degiorgio (n 52). 

[55] Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92, [71] (Kenny, Edmonds and Robertson JJ). See e.g South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130; (2005) 144 FCR 402, [42] (Black CJ and Tamberlin J), in respect of cases about vicarious liability at common law or in the context of workers' compensation statutes when construing the vicarious liability provision in the Sex Discrimination Act 1984.

[56] PR932454; [2003] AIRC 623.

[57] Giudice J, President, Senior Deputy President Williams and Commissioner Simmonds.

[58] [2009] AIRCFB; (2009) 187 IR 276.

[59] Senior Deputy President Lacy, Deputy President Ives and Commissioner Grainger.

[60] This is an obvious typographical error.

[61] Salva (n 45).

[62] Ibid [10], second dot point (Senior Deputy President Watson,  Senior Deputy President Drake and Commissioner Harrison). Emphasis added. In Gugiatti v SolarisCare Foundation Ltd [2016] FWCFB 2478, [23] (Vice President Hatcher, Senior Deputy President Hamberger and Commissioner Saunders) the Full Bench of the Fair Work Commission cited this part of Salva with approval.

[63] [2010] HCA 28; (2010) 241 CLR 118 ('Spencer').

[64] See also McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [23] (Doyle J).

[65] Spencer (n 63).

[66] [2022] ICQ 021.

[67] Ibid [51].

[68] Ibid [42].

[69] [2022] ICQ 013.

[70] Ibid [43].

[71] Ibid [123]-[125].

[72] Ibid [49]-[63] and [126]-[127].

[73] Appeal Decision (n 1), [56] to [88].

[74] Ibid [120] to [182].

[75] Ibid [183] to [723].

[76] Ibid [724] to [734].

[77] (1893) 6 R 67.

[78] Appeal Decision (n 1), [735] to [783].

[79] Ibid [784]-[799].

[80] As occurred in Kelsey v Logan City Council & Ors (No 2) [2022] ICQ 013, [64]-[122] (Davis J, President).

[81] The Council's costs submissions, para. 3.

[82] The Councillors' costs submission, para. 2.

[83] Ms Kelsey's costs submissions, para. 4.

[84] Ms Kelsey's costs submissions, paras. 4 and 11.

[85] [2019] HCA 25; (2019) 265 CLR 164.

[86] Ibid [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

[87] The Council's costs submissions, paras. 9-12.

[88] Ms Kelsey's costs submissions, paras. 12-13.

[89] The Council's costs submissions, paras. 16-18.

[90] The Council's costs submissions in reply filed on 30 September 2024, para. 4.

[91] The Councillors' costs submissions, paras. 6-8.

[92] As recorded in the Appeal Decision (n 1), [180].

[93] The Council's submissions, paras. 13-14.

[94] (1985) 4 NSWLR 139 ('Azzopardi'), 156G-157B (Glass JA).

[95] Ms Kelsey's costs submissions, paras. 20-21.

[96] Appeal Decision (n 1) [133]-[181].

[97] [2012] HCA 32; (2012) 248 CLR 500, [44]-[45].

[98] Appeal Decision (n 1) [150]-[154].

[99] [2015] FCAFC 157; (2015) 238 FCR 273, [134].

[100] Appeal Decision (n 1) [157]-[158].

[101] [2014] HCA 41; (2014) 253 CLR 243.

[102] Ibid [9] (French CJ and Kiefel J).

[103] Ibid [85] (Gageler J) and see Appeal Decision (n 1), [159]-[160].

[104] Appeal Decision (n 1) [180].

[105] Ibid.

[106] Ibid.

[107] Azzopardi (n 94), 156G-157A (Glass JA).

[108] 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.

[109] Ms Kelsey's amended outline of closing submissions, ARB pages 4577-4579, paras. 2.87-2.93. The authorities included Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 ('South Jin'), [227]-[235] (White J).

[110] Australian Building and Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340 ('Parker'), [121]-[126] (Flick J).

[111] The Councillors' final written submissions before the Commission, ARB page 4939, para. 443.

[112]  [2021] FCAFC 25; (2021) 283 FCR 348 (Flick J at [90] agreeing).

[113] This provision is not materially different to s 571 of the Industrial Relations Act 2016.

[114] The Councillors' costs submissions, paras. 9-12.

[115] As recorded in the Appeal Decision (n 1), [727].

[116] The Council's costs submissions, para. 15.

[117] Ms Kelsey's costs submissions, paras. 15-17.

[118] South Jin (n 109), [229].

[119] Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, 670 (Mason ACJ, Wilson , Deane and Dawson JJ) and Parker (n 110) [124].

[120] Ms Kelsey's reply submissions, para. 90, namely paragraphs [294], [331], [760] and [761] of the Primary Decision.

[121] The Council's costs submissions, para. 16. Emphasis in the original.

[122] The Council's costs submissions, para. 18.

[123] The Council's costs submissions, para. 18.

[124] The Council's costs submissions, para. 19.

[125] The Council's costs submissions, para. 21.

[126] The Council's costs submissions, para. 17.

[127] [2017] VSCA 88; (2017) 372 ALR 440, [101] (Santamaria, Ferguson and Kaye JJA).

[128] Ms Kelsey's costs submissions, paras. 24-25.

[129] [1999] HCA 3; (1999) 160 ALR 588.

[130] [2005] NSWCA 476.

[131] Ms Kelsey's costs submissions, para. 26.

[132] Appeal Decision (n 1), [240], [267], [271] and [451].

[133] Ibid [280], [283], [341], [386], [390] and [393].

[134] Ibid [414]-[415].

[135] Ibid [516], [524] and [536].

[136] Ibid [545] and [554].

[137] Ibid [569].

[138] Ibid [585].

[139] Ibid [605].

[140] Ibid [616].

[141] Ibid [625].

 

[142] Appeal Decision (n 1), [309]-[324].

[143] The Councillors' costs submissions, paras. 13-15.

[144] [2003] HCA 22; (2003) 214 CLR 118.

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

[146] Ms Kelsey's costs submissions, para. 14.

[147] See 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.

[148] Ms Kelsey's amended outline of closing submissions, paras. 2.28 to 2.38, ARB pages 4565 to 4566 and 4.1 to 4.10, ARB 4623-4625. Ms Kelsey's specific written submissions about the liability each of the Councillors followed the above submissions.

[149] See the Councillors' final submissions, paras. 82 to 90, ARB pages 4846-4848.

[150] Primary Decision (n 2) [737], [765] and [822].

[151] I acknowledge that Ms Kelsey, in respect of part D.4 of her principal submissions in the proceeding before me, did not specifically complain about Vice President's findings about Cr Schwarz and Cr Smith. The other two complaints in part D.4 concerned all the Councillors, namely, the way the PID was sent and the Councillors'

reliance on legal advice.

Close

Editorial Notes

  • Published Case Name:

    Kelsey v Logan City Council & Ors (No. 6)

  • Shortened Case Name:

    Kelsey v Logan City Council (No. 6)

  • MNC:

    [2025] ICQ 2

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    29 Jan 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

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AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10
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AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300
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Algahamdi v State of Queensland (Queensland Health) (No 2) [2022] ICQ 19
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Australian Building and Construction Commissioner v Parker (2017) 266 IR 340
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Australian Building and Construction Commissioner v Parker [2017] FCA 564
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Australian Workers' Union v Leighton Contractors Pty Limited (No 2) (2013) 232 FCR 428
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Azzopardi v Tasman UBE Industries P/L (1985) 4 NSWLR 139
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Baker v Salva Resources Pty Ltd (2011) 211 IR 374
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Degiorgio v Dunn (No 2) [2005] NSWSC 3
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DeGiorgio v Dunn (No.2) (2005) 62 NSWLR 284
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Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
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Fox v Percy (2003) 214 CLR 118
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Fox v Percy (2003) HCA 22
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Giorgianni v The Queen (1985) 156 CLR 473
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Goldsmith v Sperrings Ltd (1977) 1 WLR 478
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Imogen Pty Ltd v Sangwin (1996) 70 IR 254
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Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
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Kanan v Australian Postal and Telecommunications Union [1992] FCA 539
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Oshlack v Richmond River Council (1998) 193 CLR 72
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Oshlack v Richmond River Council (1998) HCA 11
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R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51
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R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470
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South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402
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State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
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TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
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Wanninayake v Queensland [2015] ICQ 35
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Williams v Spautz (1992) 174 CLR 509
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Yorke and Anor v Lucas (1984) 158 CLR 661
1 citation
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Yorke v Lucas (1985) 158 CLR 661
2 citations
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Yorke v Lucas [1985] HCA 65
2 citations
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Cite 1 - [1985] HCA 65
Cite 2 - [1985] HCA 65

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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