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Horton v State of Queensland (Department of Justice and Attorney-General)[2025] ICQ 7

Horton v State of Queensland (Department of Justice and Attorney-General)[2025] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Horton v State of Queensland (Department of Justice and Attorney-General) [2025] ICQ 007

PARTIES:

JAN HORTON

(Appellant)

v

STATE OF QUEENSLAND (DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL)

(Respondent)

CASE NO:

C/2024/47

PROCEEDING:

General Application and Application in existing proceedings

DELIVERED ON:

23 May 2025

HEARING DATE:

23 May 2025

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

  1. The Appellant's General Application, filed on 14 May 2025 in Matter No. C/2024/47, is dismissed.
  1. The Appellant's Application in existing proceedings, filed on 16 May 2025 in Matter No. C/2024/47, is dismissed.
  1. The Appellant's oral application made today, to amend her application to appeal in Matter No. C/2024/47, so as to appeal on a ground other than error of law or excess, or want, of jurisdiction, is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – Appellant is employed by the Respondent as a Court Services Officer and was the subject of disciplinary proceedings under the Public Sector Act 2022 – the Respondent made a disciplinary finding decision that five disciplinary allegations made against the Appellant were substantiated – the Appellant then, pursuant to  ch 3, pt 10, div 2 of the Public Sector Act 2022, appealed against the disciplinary finding decision to the Queensland Industrial Relations Commission – the Commission decided that four of the five disciplinary allegations were substantiated because they were fair and reasonable and to that extent, pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, confirmed the disciplinary finding decision – the Appellant then, pursuant to s 557(1)(a) of the Industrial Relations Act 2016, appealed against the decision of the Commission to the Industrial Court of Queensland contending that the decision of the Commission was affected by alleged errors of law – after the appeal to the Court had been set down for hearing and the parties had filed and served written submissions, the Appellant, pursuant to s 567(2) of the Industrial Relations Act 2016, made an application to the Court for the Court to hear additional evidence and made an application, pursuant to s 536(f) of the Industrial Relations Act 2016, for certain disclosure – consideration of the relevant principles for an appellate court determining an appeal by way of re-hearing on the record to hear additional evidence – no basis for the Court to exercise its discretion to allow the Appellant to lead additional evidence because the evidence does not go to determining whether the Commission's decision was affected by the errors of law as contended by the Appellant – not appropriate to hear additional evidence to effectively dispose of the appeal – Appellant's application for the Court to hear additional evidence dismissed – as a consequence, no utility for the Court to grant the Appellant's discovery application – Appellant's application to the Court for discovery dismissed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – consideration of the discretion conferred on the Industrial Court of Queensland by s 567(2) of the Industrial Relations Act 2016 the hear additional evidence – whether the evidence is such that there was a high probability that there would be a different result – whether evidence could not have been obtained with reasonable diligence for use at the hearing before the Queensland Industrial Relations Commission – additional evidence is not such that there is a high probability that there would be a different result – Appellant could have obtained the additional evidence with reasonable diligence prior to the hearing before the Commission

LEGISLATION:

District Court of Queensland Act 1967, s 45 and s 46

Industrial Relations Act 1999, s 348

Industrial Relations Act 2016, s 536, s 557, s 562B, s 562C and s 567

Public Sector Act 2022, s 91

Right to Information Act 2009, s 45

CASES:

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

Horton v State of Queensland (Department of Justice and Attorney-General) [2024] QIRC 278

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Kim v Workers' Compensation Regulator [2019] ICQ 14

Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002

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

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

State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 003

Turay v Workers' Compensation Regulator [2023] ICQ 013

COUNSEL:

The Appellant appeared on her own behalf

Mr L. Grant of Counsel for the Respondent

SOLICITORS:

Ms A. Wells of Crown Law for the Respondent

Reasons for Decision

Delivered ex tempore, revised from transcript

Introduction

  1. [1]
    Ms Jan Horton is employed by the State of Queensland, through the Department of Justice and Attorney-General ('the Department'), as a Court Services Officer and Enforcement Officer in the Supreme, District and Land Court Service, Brisbane.
  1. [2]
    In February 2023, the Department asked Ms Horton to show cause in relation to five  disciplinary allegations made against her. Ms Horton responded and in September 2023 the relevant Departmental decision-maker determined the five disciplinary allegations were substantiated ('the disciplinary finding decision').
  1. [3]
    Pursuant to ch 3, pt 10, div 2 of the Public Sector Act 2022 ('the PS Act'), Ms Horton appealed against the disciplinary finding decision to the Queensland Industrial Relations Commission.
  1. [4]
    By decision dated 27 November 2024, the Industrial Commissioner, into whose hands Ms Horton's appeal fell, ordered that, pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), the disciplinary finding decision be set aside and another decision substituted, namely, that of the five disciplinary allegations, only the first four were substantiated ('the Primary Decision').
  1. [5]
    By application to appeal filed on 17 December 2024, Ms Horton appeals to this Court against the Primary Decision. Ms Horton's appeal is made pursuant to s 557(1)(a) of the IR Act. That is, Ms Horton appeals against the Primary Decision on the grounds of error of law.
  1. [6]
    On 13 February 2025, I made Directions Orders for the hearing and determination of Ms Horton's appeal to this Court. Given the written submissions made by Ms Horton, which were attached to her application to appeal, the Department was content for those submissions to be Ms Horton's principal written submissions in the appeal. As a consequence, I made orders that by 6 March 2025, the Department file and serve an Appeal Record Book, by 27 March 2025, the Department file and serve its written submissions; and that by 10 April 2025, Ms Horton file and serve her written submissions in reply. The parties have complied with those orders. The hearing of Ms Horton's appeal to this Court is set down for today.
  1. [7]
    By General Application filed on 14 May 2025, Ms Horton made an application, pursuant to s 567(2) of the IR Act, for the Court '… to adduce additional evidence' on the basis of '…new documentary evidence' she had received pursuant to s 45 of the Right to Information Act 2009 ('Ms Horton's additional evidence application'). An affidavit, purportedly affirmed by Ms Horton on 10 May 2025, accompanied that application ('Ms Horton's Court affidavit').
  1. [8]
    On 16 May 2025, Ms Horton, pursuant to s 536(f) of the IR Act, made an Application in existing proceedings by which she seeks an order for a direction that '…the respondents' having regard to the matters to which she refers in that application, provide their ''preliminary' meetings documents and notes' ('Ms Horton's discovery application'). Ms Horton, in respect of her discovery application, also relies on the affidavit that accompanied her additional evidence application.
  1. [9]
    Today, during the course of argument, Ms Horton made an oral application to amend her application to appeal so that she could appeal on the ground or grounds other than error of law or excess, or want of, jurisdiction, namely, to amend her application to also appeal on grounds of error of fact. I heard further argument about Ms Horton’s oral application to amend her application to appeal, in addition to hearing Ms Horton's additional evidence application and her discovery application.

The Primary Decision

  1. [10]
    The following undisputed facts emerged from a consideration of the Primary Decision.
  1. [11]
    By letter dated 24 February 2023, the Department asked Ms Horton to show cause in relation to five disciplinary allegations. The five disciplinary allegations emerged from an investigation report prepared by the Ethical Standards Unit of the Department dated 24 November 2022.
  1. [12]
    The first disciplinary allegation was that on 24 April 2021, in relation to a particular matter, Ms Horton failed to comply with the Police Action Plan completed by the Registrar in response to a red alert being advised by the police and that she (Ms Horton) proceeded to attend the relevant house and speak with a male occupant.
  1. [13]
    The second disciplinary allegation was that between 13 April 2022 and 22 April 2022, Ms Horton failed to comply with a lawful direction issued by the Deputy Principal Registrar and Sheriff of Queensland, not to perform any enforcement officer or bailiff duties on behalf of the Department whilst under alternative work arrangements, by continuing to engage in arrangements for an eviction scheduled for 23 April 2022.
  1. [14]
    The third disciplinary allegation was that on an unknown date in January 2022, without authority, Ms Horton released a copy of the Department's draft 'Mandatory Vaccination Requirements' policy to Cloe Read, a reporter from the Brisbane Times.
  1. [15]
    The fourth disciplinary allegation was that on 5 November 2018, 21 October 2019, 4 August 2020, 10 March 2022 and 17 March 2022 Ms Horton sent inappropriate emails to her colleagues.
  1. [16]
    The fifth disciplinary allegation was that on 7 April 2021 and on 27 October 2021, Ms Horton sent inappropriate emails to a group of colleagues in which she made derogatory and offensive comments about the Department and its management team.
  1. [17]
    Ms Horton provided a response to the Department in respect of these allegations on 14 March 2023.
  1. [18]
    On 1 September 2023, Ms Horton was notified that the relevant decision-maker had found that the five allegations were substantiated and that, pursuant to various grounds contained in s 91(1) of the PS Act, she was liable for disciplinary action under the PS Act. The disciplinary action proposed by the relevant decision-maker was the termination of Ms Horton's employment. The decision-maker provided Ms Horton with an opportunity to respond as to why her employment should not be terminated. On 14 September 2023, Ms Horton responded to the proposed disciplinary action.
  1. [19]
    On 26 September 2023, pursuant to ch 3, pt 10, div 2 of the PS Act, Ms Horton appealed to the Commission against the disciplinary finding decision.
  1. [20]
    The hearing of that appeal was heard and decided by the Commission under ch 11 of the IR Act. In that regard, s 562B of the IR Act relevantly provides:

562B Public service appeal to commission is by way of review

  1. This section applies to a public service appeal made to the commission.
  1. The commission must decide the appeal by reviewing the decision appealed against.
  1. The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [21]
    Ms Horton's appeal was heard and determined by the Industrial Commissioner on the papers, namely, by giving consideration to the written submissions and material filed by the parties.
  1. [22]
    The powers conferred on the Commission, in respect of such an appeal as the one made by Ms Horton to it, are contained in s 562C of the IR Act. That section relevantly provides:

562C Public service appeals–decision on appeal

  1. In deciding a public service appeal, the commission may–
  1. confirm the decision appealed against; or

…

  1. for another appeal–set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [23]
    After considering the parties' written submissions, the Industrial Commissioner found that:
  • the disciplinary findings made by the relevant decision-maker, in respect of the first four disciplinary allegations, were decisions that were fair and reasonable; and
  • the disciplinary finding made in respect of the fifth disciplinary allegation was a decision that was not fair and reasonable.
  1. [24]
    The order made by the Industrial Commissioner was:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld)–

  1. Allegations 1, 2, 3, and 4 are substantiated and disciplinary findings are confirmed;
  1. Allegation 5 is not substantiated and the disciplinary finding relating to this allegation is set aside.

Ms Horton's appeal to this Court against the Primary Decision

  1. [25]
    Ms Horton makes her application to appeal to this Court against the Primary Decision pursuant to s 557(1)(a) of the IR Act. Section 557 of the IR Act relevantly provides:

557 Appeal from commission

  1. The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of–
  1. error of law; or
  1. excess, or want, of jurisdiction.
  1. [26]
    Having regard to Ms Horton's application to appeal to this Court, and the accompanying written submissions, Ms Horton identifies four grounds of appeal by which she contends the Primary Decision was affected by an error of law. They are:
  • that the Industrial Commissioner ignored relevant considerations, namely s 45 and s 46(1) of the District Court of Queensland Act 1967 ('the first ground of appeal');
  • there was no evidence to support certain facts found by the Industrial Commissioner ('the second ground of appeal');
  • the Industrial Commissioner ignored relevant evidence submitted by her ('the third ground of appeal'); and
  • the Industrial Commissioner failed to provide her (Ms Horton) with procedural fairness in that there was an apprehension of bias on the part of the Industrial Commissioner ('the fourth ground of appeal').
  1. [27]
    An appeal to this Court is by way of re-hearing on the record[1] which is a procedure for the correction of error in that the existence of an error, whether of law or fact, on the part of the Commission in the first instance, is an indispensable condition of a successful appeal.[2] Even where it can be demonstrated that there is an error of law or of fact in the decision appealed against, it must be shown that the error of law or fact vitiates the decision before an appellate court would allow the appeal.[3]
  1. [28]
    If a decision, the subject of a public service appeal, was determined by the Commission to be, or not to be, fair and reasonable,[4] and there is an appeal to this Court against the decision of the Commission alleging it is affected by an error of law, then the deferential standard of appellate review is applied.[5] In that regard, Dixon, Evatt and McTiernan JJ in House v The King relevantly stated:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[6]

Ms Horton's additional evidence application

  1. [29]
    Ms Horton seeks an order from the Court to hear additional evidence. Further, as I understand it, the additional evidence is the documents exhibited to her Court affidavit.
  1. [30]
    From Ms Horton's additional evidence application, the following is a summary of the grounds advanced in support of that application:
  • on 3 February 2025, pursuant to the Right to Information Act 2009, she applied for certain documentation from the Department which she received on 15 April 2025, being '… new documentary evidence' which had not '…previously been availble [sic] or produced throughout these proceedings before the Tribunal/Court/Commission';
  • the new evidence is relevant as it reveals '… the respondents breached' s 923(1) and (2) of the IR Act and '…did knowingly provide false and misleading information in submissions to the Commission' in her appeal against the disciplinary finding decision;
  • a particular officer of the Ethical Standards Unit '…knowingly and willingly did mislead the Commission' in the submissions filed by the Department in respect of the matters referred to by the Industrial Commissioner in paragraphs [27], [28], [29], [99] and [100] of the Primary Decision; and that, in particular, one named officer '… commenced reprisal action against Ms Horton soon after she raised maladministration and bullying within enforcement'; and
  • the Industrial Commissioner was not informed that two named officers of the Department '… acted corruptly and added the emails to inflate the allegations against' her.
  1. [31]
    It is fair to say, having regard to the above grounds for Ms Horton's additional evidence application, she contends that the documents obtained by her, as a consequence of her application pursuant to the Right to Information Act 2009, is evidence that the disciplinary findings made against her amounted to corrupt reprisal action because she had raised allegations of maladministration and bullying within her work area.
  1. [32]
    Ms Horton, in her additional evidence application, correctly identifies s 567(2) of the IR Act as being the source of discretionary power for the Court to hear additional evidence.
  1. [33]
    Section 567(2) of the IR Act relevantly provides that the Court '…may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.' That identified consideration by the Court constrains the exercise of the discretion vested in the Court to hear additional evidence. However, that is not to say that the considerations that the civil courts take into account, in the exercise of a discretion to admit fresh evidence on an appeal by way of rehearing, are irrelevant to the exercise of the discretion vested in this Court.[7]
  1. [34]
    It has been held that a consideration that informs the exercise of the discretion of this Court, namely, whether hearing the additional evidence is appropriate to effectively dispose of the appeal, is if the evidence could not have been obtained with reasonable diligence for use at the primary hearing.[8]
  1. [35]
    Other relevant considerations may include that:
  • the evidence must be such that there is a high probability that there would be a different result; and
  • the evidence must be credible.[9]
  1. [36]
    Ms Horton submitted that it can be inferred from the documents she obtained pursuant to the Right to Information Act 2009, that there has been misinformation and lies told about her, that the Department lied to the Industrial Commissioner and to her and engaged in corrupt behaviour.
  1. [37]
    The Department submitted that:
  • by reference to the decision of Davis J, President in Turay v Workers' Compensation Regulator,[10] where an appeal to this Court is made against a decision on the grounds of error of law, receipt of additional evidence is for the purposes of discerning error of law or jurisdictional error, and not errors of fact;
  • Ms Horton's appeal against the Primary Decision is that it is affected by errors of law, not errors of fact and, as such, the additional evidence she applies to the Court to hear cannot be relevant to her appeal on those grounds because it goes to factual matters; and
  • as a consequence, the Court's discretion, pursuant to s 567(2) of the IR Act to hear additional evidence is not enlivened and, even if it was, because Ms Horton, with reasonable diligence, could have led the evidence she obtained through the Right to Information Act 2009 before the Industrial Commissioner, the Court's discretion, even if it was enlivened, should not be exercised in her favour for that reason.
  1. [38]
    There are two issues with Ms Horton's additional evidence application that lead me to consider that hearing the additional evidence is not appropriate to effectively dispose of the appeal.
  1. [39]
    First, Ms Horton has decided to pursue her appeal against the Primary Decision by alleging that the Primary Decision is affected by errors of law. That is an avenue of appeal Ms Horton has as of right. Ms Horton in her filed application to appeal, did not allege, pursuant to s 557(2) of the IR Act, that there are errors of fact in the Primary Decision in respect of which she must apply for, and obtain, the Court's leave to advance.
  1. [40]
    The additional evidence sought to be heard could not result in a conclusion that there is a high probability that there would be a different result in this Court. This is because the additional evidence could not have any bearing on whether or not the errors of law, said to be made by the Industrial Commissioner in the Primary Decision, are made out.
  1. [41]
    The first ground of appeal is that the Industrial Commissioner ignored relevant considerations, namely, certain provisions of the District Court of Queensland Act 1967. Whether that ground of appeal is made out depends upon whether the provisions in that Act, to which Ms Horton refers, had any relevance to the Industrial Commissioner's determination that the disciplinary finding decisions made in respect of the first, second, third or fourth disciplinary allegations were fair and reasonable; and if they were, whether they were not taken into account by the Industrial Commissioner and that failure had a material effect on the Industrial Commissioner's ultimate decision. No additional evidence could have any bearing on whether this ground of appeal is made out.
  1. [42]
    The second ground of appeal is a no evidence ground. Ms Horton alleges that the Industrial Commissioner made certain findings of fact that were not supported by any evidence before the Industrial Commissioner. Whether that ground of appeal is made out depends upon whether there was evidence before the Industrial Commissioner which would support the impugned findings of fact made by the Industrial Commissioner. No additional evidence could have any bearing on whether this ground of appeal is made out.
  1. [43]
    The third ground of appeal is that the Industrial Commissioner ignored evidence submitted by Ms Horton which she contends was relevant. Assuming that this ground of appeal gives rise to an alleged error of law, no additional evidence could have any bearing on whether this ground of appeal is made out.
  1. [44]
    The fourth ground of appeal is that the Industrial Commissioner denied Ms Horton procedural fairness on the basis of apprehended bias. The additional evidence of the kind Ms Horton seeks the Court to hear could not have any bearing on whether that ground of appeal is made out.
  1. [45]
    For all these reasons, I am not persuaded that the additional evidence Ms Horton asked the Court to admit, if admitted, would result in a high probability that there would be a different result than that reached by the Industrial Commissioner in the Primary Decision.
  1. [46]
    Secondly, I am not persuaded that the additional evidence Ms Horton now wishes this Court to hear, namely, the evidence exhibited to her Court affidavit, could not have been obtained with reasonable diligence for use in her appeal before the Commission against the disciplinary finding decision.
  1. [47]
    The disciplinary finding decision was notified to Ms Horton on 1 September 2023. Ms Horton commenced her appeal before the Commission on 23  September 2023 following which the Industrial Commissioner issued various Directions Orders for the parties to file and serve submissions which, having regard to the Primary Decision and indeed to the Appeal Record Book, included various attachments. The Industrial Commissioner's decision was delivered on 27 November 2024.
  1. [48]
    In her additional evidence application, Ms Horton states that she did not, pursuant to the Right Information Act 2009, apply for the documents she now seeks to be considered as evidence by this Court until 3 February 2025. Having regard to the additional documentary evidence contained in Ms Horton's Court affidavit, these are primarily emails, but also other documents, which were sent or created in 2021, 2022 and 2023.
  1. [49]
    Having regard to the Primary Decision, Ms Horton expressly submitted to the Industrial Commissioner that the disciplinary allegations made against her by the Department were in retaliation due to her allegations of maladministration made by her to the Department and to external agencies. Ms Horton claims that the documents she has now retrieved pursuant to the Right to Information Act 2009 go to proving that same claim.
  1. [50]
    However, while Ms Horton has provided an explanation as to why she did not receive the documents she sought from her application pursuant to the Right to Information Act 2009 until April 2025 (due to various objections being made), no explanation has been provided by Ms Horton as to why she could not have made her application, pursuant to the Right to Information Act 2009 about the emails and other documents she has now obtained (which were sent or created in 2021, 2022 and 2023), prior to 3 February 2025. That is, Ms Horton has provided no explanation why she did not take the steps she took on 3 February 2025, to obtain the documents now in her possession, at or about the time she made her submissions to the Industrial Commissioner. Indeed, today Ms Horton frankly conceded in her submissions that she could have made her application pursuant to the Right to Information Act 2009 sometime well in the past.
  1. [51]
    For these reasons, I am not persuaded that the evidence, which Ms Horton now wishes to admit, could not have been obtained with reasonable diligence for use at the hearing before the Industrial Commissioner.
  1. [52]
    For these two reasons, I do not consider it appropriate, for the effective disposition of Ms Horton's appeal, to grant Ms Horton's additional evidence application.

Ms Horton's discovery application

  1. [53]
    Ms Horton applies, pursuant to s 536(f) of the IR Act, for the Department to discover certain documents and notes.
  1. [54]
    By way of summary, Ms Horton provides the following as the grounds for her discovery application:
  • upon receipt of the documents under the Right to Information Act 2009 on 15 April 2025, she '…discovered evidence of the respondents [sic] corrupt conduct within the disciplinary process' currently involving her;
  • the new documentary evidence supports her argument that the allegations made against her '…are reprisals and retaliatory in nature';
  • two officers of the Department, including the decision-maker, '…participated in unethical unlawful behaviours';
  • one of those officers '…admitted holding several 'preliminary meetings' with other employees’ and '…It is expected that these notes and documents from the meetings will provide further evidence as to what this group was discussing about' her and '…how they came to the decisions they made';
  • one of the officers '…misled' the Industrial Commissioner '…with misleading information and disinformation'; and
  • the order sought is '… for a direction that the respondents [sic] provide their 'preliminary' meetings documents and notes.'
  1. [55]
    Ms Horton, in requesting the above order, applies to the Court to exercise its discretion pursuant to s 536(f) of the IR Act. Section 536 of the IR Act provides:

536 Interlocutory proceedings

For conducting proceedings under this Act or another Act, the court, commission or registrar may make orders or give directions the court, commission or registrar considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings, including matters about the following–

  1. naming and joinder of parties;
  1. persons to be served with notice of proceedings;
  1. calling of persons to attend in proceedings;
  1. particulars of the claims of the parties;
  1. the issues to be referred to the court or commission;
  1. admissions, discovery, interrogatories or inspection of documents or property;
  1. examination of witnesses;
  1. costs of the interlocutory proceedings;
  1. place, time and mode of hearing of the cause.
  1. [56]
    In essence, Ms Horton today submitted that the disclosure application may reveal further documents that support her contention that the Respondent lied to the Industrial Commissioner and to her and engaged in corrupt conduct.
  1. [57]
    The Department submitted that if Ms Horton's additional evidence application was incompetent on the basis it contended then, similarly, Ms Horton's discovery application was also incompetent.
  1. [58]
    I will not exercise my discretion to make the orders sought by Ms Horton.
  1. [59]
    It is obvious, having regard to the grounds of Ms Horton's discovery application, that it is directly linked to her additional evidence application.
  1. [60]
    As stated earlier in these reasons, in respect of Ms Horton's additional evidence application, her contention is that the documents she obtained through her application made pursuant to the Right to Information Act 2009 is evidence of corrupt reprisal action against her because she had raised allegations of maladministration and bullying within her area of work.
  1. [61]
    For the reasons I have given above, having regard to Ms Horton's grounds of appeal, namely, that the Primary Decision was affected by the errors of law of which she contends, it cannot be said that the additional evidence upon which she wishes to rely is such that there is a high probability there would be a different result from the Primary Decision.
  1. [62]
    Ms Horton's discovery application is put on the basis that, having regard to the documents that were provided to her by virtue of her application pursuant to the Right to  Information Act 2009, there may be other documents, namely notes and documents associated with certain meetings, which she contends may provide further proof of the corrupt reprisal action she alleges led to the disciplinary findings being made against her.
  1. [63]
    I will not exercise my discretion to make the orders Ms Horton seeks by her discovery application. This is because there is no utility in making the order for discovery she seeks. Any such disclosure would have no bearing in respect of the errors of law she contends affects the Primary Decision. As a consequence, it is not necessary for me to make the orders sought by Ms Horton to achieve a just outcome.[11]
  1. [64]
    For these reasons, I am not persuaded that it is just and necessary for me to make the orders sought by Ms Horton in her discovery application.

Ms Horton's oral application to amend her application to appeal

  1. [65]
    During the course of submissions this morning, when I was asking Ms Horton questions that went to the competency of her additional evidence application and particularly, when I pointed out that Ms Horton's appeal to this Court against the Primary Decision was on the basis that the Primary Decision was affected by errors of law and not errors of fact, Ms Horton made an oral application to amend her application to, as I understand it, also appeal against the Primary Decision on the ground or grounds other than error of law or excess, or want, of jurisdiction.
  1. [66]
    In the course of making that application, Ms Horton did not give any reasons why she was making such an application, namely, to amend the basis of her application to appeal against the Primary Decision at such a late stage, and did not articulate any particular alleged errors of fact in the Primary Decision.
  1. [67]
    It seems to me that Ms Horton made her oral application today on the basis of the difficulties, pointed out to her today, that confronted her in respect of her additional evidence application. That is that her appeal to this Court, as it currently stands, is that the Primary Decision was affected by errors of law.
  1. [68]
    The Department opposes the oral application made by Ms Horton to amend the basis of her application to appeal to this Court against the Primary Decision because the application was made very late, namely, on the day the appeal is to be heard by the Court. The Department further submits that the appeal that it has come to meet today is the appeal made by Ms Horton as of right, namely, that the Primary Decision is affected by errors of law.
  1. [69]
    Indeed, as Mr Grant, Counsel for the Department submits, the Department's written outline of submissions filed on 27 March 2025, in respect of Ms Horton's application to appeal against the Primary Decision on the grounds of error of law, point out that Ms Horton did not apply for leave to appeal against facts in the Primary Decision.
  1. [70]
    I have discretionary power to allow Ms Horton to amend her application to appeal. That is not disputed by the Department. However, in the circumstances, I refuse to allow Ms Horton to amend her application to appeal on the basis she seeks. This is for a number of reasons.
  1. [71]
    First, the application is made very late, namely, on the day the appeal is being heard by the Court.
  1. [72]
    To allow Ms Horton at this late stage to amend her application to appeal would require the hearing of her appeal to be adjourned, for directions to be made for her to file and serve an amended application to appeal, and then for the parties to be heard about the question of whether or not it is in the public interest for Ms Horton to be allowed to appeal against the Primary Decision on alleged errors of fact whatever those alleged errors may be. The appeal to this Court was made in December 2024 and Directions Orders issued on 13 February 2025. Having regard to these facts, it is not in the public interest for the resources of the Court to be wasted.  There are other litigants before the Court who could have had their matter heard and determined today, but could not because Ms Horton's appeal was listed for today.
  1. [73]
    Secondly, there is no guarantee that Ms Horton could appeal against the Primary Decision on the grounds of errors of fact. To be able to appeal on such grounds, Ms Horton would have to demonstrate that it is in the public interest that she can appeal on such grounds. It seems to me that the alleged errors of fact Ms Horton may wish to agitate before the Court arise out of the documentation she received from the application she made pursuant to the Right to Information Act 2009. As set out earlier in these reasons, Ms Horton did not make that application until February this year and that she frankly admits she could have made it well before that time. This is a reason also against allowing Ms Horton, at this late stage, to amend her application to appeal.  The documentation upon which she wishes to agitate an appeal on errors of fact could have been obtained by her well before she made her application to appeal to this Court.
  1. [74]
    Finally, there is the prejudice to the Department. The appeal the Department has come to meet today is Ms Horton's appeal against the Primary Decision on alleged errors of law. The Department would suffer prejudice in terms of time and cost if the appeal was adjourned and Ms Horton was then allowed to argue whether it was in the public interest that she could appeal on the grounds of errors of fact. While I appreciate that, throughout this appeal, Ms Horton has represented herself, that is a misfortune and not a privilege. Ms Horton's past failure to appreciate that she could have sought leave to appeal against the Primary Decision on the grounds of error of fact should not be visited upon the Department.
  1. [75]
    For all these reasons, I refuse Ms Horton's oral application to amend her application to appeal as she seeks.

Conclusion

  1. [76]
    For the reasons I have given:
  • I dismiss Ms Horton's additional evidence application;
  • I dismiss Ms Horton's discovery application; and
  • I dismiss Ms Horton's oral application to amend her application to appeal on grounds other than error of law or excess, or want, of jurisdiction.

Orders

  1. [77]
    The Court makes the following orders:
  1. The Appellant's General Application, filed on 14 May 2025 in Matter No. C/2024/47, is dismissed.
  1. The Appellant's Application in existing proceedings, filed on 16 May 2025 in Matter No. C/2024/47, is dismissed.
  1. The Appellant's oral application made today, to amend her application to appeal in Matter No. C/2024/47, so as to appeal on a ground other than error of law or excess, or want, of jurisdiction, is dismissed.

Footnotes

[1] Industrial Relations Act 2016, s 567(1).

[2]Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [30] (Gageler J).

[3] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 645 (Shepherdson J, Kelly J at 640 agreeing) and McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7, [5] (Martin J, President).

[4] Within the meaning of s 562B(3) of the Industrial Relations Act 2016.

[5] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 003, [58]-[64].

[6] [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[7] See the cases referred to by Martin J, President in Local Government Association of Queensland Limited v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002 ('LGAQ'), [13],[14] and [15]. This decision was in respect of the almost identical provision in the Industrial Relations Act 1999 (s 348(2)) to s 567(2) of the Industrial Relations Act 2016.

[8] Ibid [11]-[15].

[9] LGAQ (n 7), [11] and Kim v Workers' Compensation Regulator [2019] ICQ 14, [16]-[20] (Martin J, President) in respect of s 561(3) of the Workers' Compensation and Rehabilitation Act 2003 which is similar, but not identical to, s 567(2) of the Industrial Relations Act 2016.

[10] [2023] ICQ 013, [52].

[11] See Kelsey v Logan City Council & Ors (No 9) [2022] QIRC 342, [39] (Vice President O'Connor).

Close

Editorial Notes

  • Published Case Name:

    Horton v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Horton v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2025] ICQ 7

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    23 May 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 639
Cite 2 - [1983] 2 Qd R 639
Horton v State of Queensland (Department of Justice and Attorney-General) [2024] QIRC 278
1 citation
Jump To
Cite 1 - [2024] QIRC 278
House v R (1936) HCA 40
2 citations
Jump To
Cite 1 - (1936) HCA 40
Cite 2 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kelsey v Logan City Council (No 9) [2022] QIRC 342
2 citations
Jump To
Cite 1 - [2022] QIRC 342
Cite 2 - [2022] QIRC 342
Kim v Workers' Compensation Regulator [2019] ICQ 14
2 citations
Jump To
Cite 1 - [2019] ICQ 14
Cite 2 - [2019] ICQ 14
Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees [2017] ICQ 2
2 citations
Jump To
Cite 1 - [2017] ICQ 2
Cite 2 - [2017] ICQ 2
McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7
2 citations
Jump To
Cite 1 - [2019] ICQ 7
Cite 2 - [2019] ICQ 7
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
1 citation
Jump To
Cite 1 - (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW (2018) CLR 541
1 citation
Jump To
Cite 1 - (2018) CLR 541
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
2 citations
Jump To
Cite 1 - [2018] HCA 30
Cite 2 - [2018] HCA 30
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3
Turay v Workers' Compensation Regulator [2023] ICQ 13
2 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13

Cases Citing

Case NameFull CitationFrequency
Horton v State of Queensland (Department of Justice and Attorney General) [2025] QIRC 2063 citations
Horton v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2025] ICQ 132 citations
1

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