Kelsey v Logan City Council[2022] QCA 238

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Ms Kelsey appeals from an order of the President of the Industrial Court of Queensland which dismissed an application to amend her application to appeal from a decision of the Queensland Industrial Relations Commission.
2. [2]
   Ms Kelsey’s application to amend was brought pursuant to s 539(d) and (e) of the Industrial Relations Act 2016 (Qld) (IR Act) and r 226(2)(f) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (IR Rules).  Section 539 relevantly provides:

“539  Powers incidental to exercise of jurisdiction

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

…

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

5. (e)
   correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal.”

3. [3]
   Rule 226 relevantly provides:

“226  Effect of failure to comply with rules

1. (1)
   A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.
2. (2)
   If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may –

…

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

4. [4]
   The effect of the order of the Industrial Court was that Ms Kelsey’s appeal was summarily dismissed.  Although the Industrial Court did not make a specific order dismissing Ms Kelsey’s application to appeal, the subsequent costs order made, which included an order that Ms Kelsey pay the respondents’ costs of the appeal, shows that the effect of the order dismissing the application to amend was that her appeal was summarily dismissed.
5. [5]
   Ms Kelsey also appeals against the costs order.
6. [6]
   The basis for dismissing the application to amend was explained by the learned primary judge as follows:^[1]

“[125]As she has no reasonable grounds of success on the appeal, the application should be dismissed.

3. [126]
   For the reasons I have earlier explained, Ms Kelsey has demonstrated her contumelious disregard for the processes of the Court and the legitimate interest of the respondents and, even now, there is no reason to be confident that she could prosecute the appeal if she was given leave to amend her application to appeal.

3. [127]
   In those circumstances, even if I had identified a reasonably arguable ground of appeal, I would have still dismissed the application on the basis that it was not just and fair to allow the amendments in all the circumstances.”

7. [7]
   His Honour’s reference to “just and fair” is to the relevant test in s 539(d) of the IR Act set out above.
8. [8]
   Ms Kelsey’s appeals to this Court pursuant to s 554(1)(a) of the IR Act which permits a person aggrieved by a decision of the Industrial Court to appeal to this Court on the ground of error of law.
9. [9]
   Ms Kelsey raises four grounds of appeal.  Ground 4, properly analysed, is an allegation that the primary judge, in refusing the application to amend, erred in failing to adequately consider the whole of the evidence in assessing whether Ms Kelsey had no reasonable grounds of success on the appeal.  Grounds 1, 2 and 3 are only relevant to the alternative basis upon which the primary judge would have dismissed the application to amend.
10. [10]
    The appeal is one from an exercise of discretion by the primary judge in relation to a matter of practice and procedure concerning an application to amend an application to appeal.
11. [11]
    This Court will only interfere with such an exercise of discretion in the limited circumstances stated by McMurdo JA in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors [2019] QCA 160 at [2] (Bradley J agreeing):

“The appellants have the formidable task of persuading this Court to reverse a discretionary judgment, and on a matter of practice and procedure.  Nevertheless, each case must be considered in the light of its own particular circumstances, and, if there is a demonstrated basis, according to House v The King, for interfering with the decision, this Court should do what is necessary to avoid a substantial injustice.” (citations omitted).

Background

12. [12]
    On 1 April 2021, the Vice President of the Queensland Industrial Relations Commission (“Commission”), following a 23 day hearing, delivered a 155 page judgment^[2] which dismissed an application by Ms Kelsey.  The application alleged that Ms Kelsey’s employment as Chief Executive Officer of the Logan City Council (“Council”) was terminated for reasons that amounted to a contravention of s 285 of the IR Act and also a contravention of s 40 of the Public Interest Disclosure Act 2010 (Qld) (“the PID Act”).  The named first respondent was the Council.  The second respondent was Mayor Smith with seven Councillors named as the other respondents.
13. [13]
    Ms Kelsey’s contract of employment contained a six month probation period during which her employment could be ended on two weeks’ notice.  On 10 October 2017, two Councillors and Mayor Smith conducted a performance review meeting with Ms Kelsey.  During this meeting the Councillors present told Ms Kelsey there were concerns with her performance.  On 12 October 2017, Ms Kelsey made a Public Interest Disclosure (the PID) to the Council, Minister for Local Government and the Crime and Corruption Commission alleging possible misconduct on the part of Mayor Smith.
14. [14]
    On 7 February 2018 at a meeting of the Council, comprised of twelve Councillors, a vote was conducted on whether Ms Kelsey’s employment should continue.  By a vote of seven to five, her employment was terminated.  The named respondent Councillors were the seven Councillors who had voted in favour of terminating Ms Kelsey’s employment.
15. [15]
    Before the Commission, Ms Kelsey alleged that her termination was procured by Mayor Smith and carried into effect by the seven Councillors as an act of reprisal against her by reason of the complaints and the PID she had made about Mayor Smith.  Before the Commission, it was contended for Ms Kelsey that the termination of her employment was for a prohibited reason, namely a “reprisal” under the PID Act or “adverse action” under the IR Act.  Section 306 of the IR Act applies a reverse onus of proof which required the Council to satisfy the Commission that the reason for the action taken against Ms Kelsey was not the reason alleged by her and which was prohibited by the IR Act.^[3]
16. [16]
    Before the Commission, each of the seven Councillors gave evidence as to their reasons for voting for the termination of Ms Kelsey’s employment.
17. [17]
    On 21 April 2021, Ms Kelsey filed an application to appeal.  Under the heading “Grounds of appeal” in the application to appeal Ms Kelsey provided the following information:

“Final orders have not yet been made in relation to the matter.  However, there has been a Decision which appears to commence the relevant appeal period.

This appeal is filed to preserve my ability to appeal the Decision when final orders are made and when I have had an opportunity to take advice (if my means allow) in relation to appropriate grounds of appeal.  I have not had the opportunity to consider or take advice on appeal prospects or on available grounds of appeal.

If an appeal is pursued, I will file an amended notice of appeal which sets out the grounds of appeal in accordance with the usual requirements.

In the meantime I respectfully ask that the Court does not progress this Appeal until after final orders are made and I am in a position to advise the Court as to whether I wish to proceed with the appeal and have filed an amended application to appeal in compliance with the normal requirements.”

18. [18]
    Ms Kelsey’s application to appeal was filed within the required 21 days: s 564 IR Act.  Her application to appeal however, did not comply with r 139(2)(c) of the IR Rules which requires an application to appeal to state concise grounds of appeal.
19. [19]
    On 14 May 2021, the primary judge conducted a directions hearing and set a timetable for the purpose of Ms Kelsey seeking leave to regularise her non-compliant application to appeal.
20. [20]
    On 31 May 2021, a decision was made by MinterEllison to accept a retainer to assist Ms Kelsey to regularise her appeal.
21. [21]
    On 18 June 2021, MinterEllison on behalf of Ms Kelsey, filed an application to amend seeking to substitute the application to appeal filed 21 April 2021 with a new application to appeal.  The proposed substituted application contained 27 grounds of appeal which had been settled by Senior Counsel.  Paragraph 28 of the grounds of appeal sought leave pursuant to s 565 of the IR Act in relation to ground 13 to 27.  Section 565 deals with when leave for appeal must be given and provides:

“If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench –

1. (a)
   must give leave if it satisfied it is in the public interest to do so; and
2. (b)
   may not give leave other than under paragraph (a).”

22. [22]
    Section 557 deals with appeals from the Commission.  Section 557 relevantly provides:

3. “(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. (a)
   error of law; or

2. (b)
   excess, or want, of jurisdiction.

3. (2)
   Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than –

1. (a)
   error of law; or

2. (b)
   excess, or want, of jurisdiction.

…

3. (4)
   If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).”

23. [23]
    Two affidavits were filed with the application to amend; an affidavit of Ms Kelsey and an affidavit of Mr Williams, a partner of MinterEllison.  In her affidavit Ms Kelsey detailed her financial circumstances.  At the time the Commission’s decision was handed down on 1 April 2021, she did not have any fee arrangement with MinterEllison to assist in advising with respect to grounds of appeal.  While she is legally qualified, Ms Kelsey did not believe that she was capable of sensibly particularising grounds of appeal within the 21 day period for the filing of an appeal.  She was aware that Mr Williams was taking steps to obtain permission from MinterEllison’s governing body to provide her with assistance to regularise her appeal.  She believed that she would be in a position to regularise her appeal within a reasonable time.  In his affidavit, Mr Williams stated that he appeared before the primary judge on 14 May 2021 for the purpose of seeking leave to regularise Ms Kelsey’s non-compliant application to appeal.  As at 21 April 2021, no decision had been made by MinterEllison as to whether there would be any extension of the retainer for Ms Kelsey.  That decision was only made on 31 May 2021 and was limited to assisting Ms Kelsey to regularise her appeal.  Mr Williams stated that the grounds of appeal were being settled by Senior Counsel and that extensive written submissions had been substantially completed.
24. [24]
    On 9 July 2021, MinterEllison, on behalf of Ms Kelsey, filed a 54 page written submission in support of Ms Kelsey’s application to amend.  Those submissions included Annexure B, entitled “Consideration of inadequacy of reasons, failures to take account of relevant evidence, and factual errors.”
25. [25]
    The relevance of Annexure B is explained in paragraph 40 of the written submissions:

“Throughout his review of the evidence, the Vice President failed to forensically assess whether the reasons given by the individual respondents had a rational or factual basis, or whether they were a satisfactory explanation for the respondents’ decisions to act and vote as they did.  Those matters are dealt with in greater detail in Annexure B and in respect of grounds 3 to 10 and 13 to 27.”

26. [26]
    The written submissions, including Annexure B, were also settled by Senior Counsel.
27. [27]
    On 30 July 2021, the Council filed written submissions and on the same day the respondent Councillors also filed written submissions.  The respondents submitted that the application to appeal filed by Ms Kelsey on 21 April 2021 was, in effect, a nullity and incapable of being amended pursuant to s 539(d) or (e) of the IR Act or r 226(2)(f) of the IR Rules.  The respondents submitted that the application to amend should be treated as an application for an extension of time within which to appeal pursuant to s 564(2) of the IR Act.  A relevant consideration for an extension of time within which to appeal is that the applicant must demonstrate that the appeal has prospects of success: Chapman v State of Queensland [2003] QCA 172.  The respondents therefore invited the primary judge to treat Ms Kelsey’s application to amend her application to appeal as an application for an extension of time within which to appeal.  It was within this context that the respondents submitted that the primary judge should have regard to Ms Kelsey’s prospects of success on appeal.

The reasons of the primary judge

28. [28]
    The primary judge considered that the application to appeal was capable of amendment.^[4]  His Honour was therefore considering an application to amend an application to appeal and not an application for an extension of time.  His Honour noted Ms Kelsey’s submission and her reference to Gambaro v Workers’ Compensation Regulator [2017] ICQ 5 and MNSBJ Pty Ltd v Downing [2017] QCA 141  that “generally an appellant ought not be denied an opportunity to run an arguable appeal”.^[5]
29. [29]
    As his Honour was considering an application to amend pursuant to s 539(d) and (e) of the IR Act and r 226(f) of the IR Rules, his Honour considered the relevant test, namely whether proceedings could be amended on terms that appear “fair and just”:^[6]

“The term “fair and just” must compel the taking into account of the interest of all parties.  The legislative intention is that all interest must be balanced in exercise of judgment to determine whether it is “fair and just” to allow the amendment.”

30. [30]
    Prior to considering the prospects of success on appeal, the primary judge had regard to the conduct of Ms Kelsey in filing a non-compliant application to appeal on 21 April 2021.  As this reasoning constitutes the alternative basis for his Honour’s refusal of the application to amend, it is necessary to set it out in detail:

3. “[54]
   Ms Kelsey must have known, when the Vice President reserved his decision on the application on 10 June 2020, that there was a possibility that she would be unsuccessful and that there may be need for her to explore any possible avenues of appeal.  There is no evidence that any step was taken by Ms Kelsey between 10 June 2020 and 1 April 2021 to make any arrangements for legal representation in the event of an appeal being considered.

3. [55]
   Mr Williams is very clear about the present limited commitment of MinterEllison to Ms Kelsey’s cause.  That commitment is limited to assisting Ms Kelsey “to regularise her appeal”.  In other words, there is no present commitment to represent her past the current application.

3. [56]
   Ms Kelsey recognises this. She also says that she did not have the legal skills and experience to draw the grounds of appeal herself. I draw the inference that she does not have the skills or experience to represent herself in the preparation and hearing of any appeal from the Vice President’s judgment. She does not have funds to retain any firm other than MinterEllison.

3. [57]
   The only rational inference is that if Ms Kelsey is successful in the present application, the appeal will only proceed if MinterEllison’s Executive Leadership Team agrees to support her. There is no evidence as to the likelihood or otherwise of that occurring.

3. [58]
   Ms Kelsey, who is a lawyer:

3. 1.
   knew there is a statutory time limit within which to appeal;

3. 2.
   knew that within that time frame she must file an application to appeal;

3. 3.
   knew that the application to appeal must contain matters of substance including an articulation of the grounds of appeal;

3. 4.
   made no attempt to fulfil any of the substantive requirements of the Rules as to the content of the application to appeal;

3. 5.
   did not even commit, in the application to appeal document, to pursuing the appeal.

3. [59]
   Ms Kelsey paid no respect to the Rules and no respect to the rights of the respondents.  She sought to unilaterally extend the time she had to file an application for leave to appeal by filing a non-compliant document.

3. [60]
   Ms Kelsey’s explanation for filing a non-compliant application to appeal is completely unsatisfactory.

3. [61]
   Further, Ms Kelsey brings the present application with no apparent means to prosecute the appeal should she be successful and obtain leave to amend her completely deficient application to appeal.

3. [62]
   The respondents have a right to finality. That is the policy behind time limits such as that in s 564(3) of the IR Act. The legitimate interests of the respondents have been completely disregarded by Ms Kelsey. She firstly puts the respondents “on hold” by filing a non-compliant application and informing the respondents that she is considering whether to pursue an appeal. They are put “on hold” again when she files the present application supported by material which still contains no firm commitment to proceed with the application and where the only rational inference is that if the appeal is regularised, the respondents’ interests will then be at the whim of MinterEllison’s Executive Leadership Team who will then determine whether to support Ms Kelsey. Only at that time will the respondents know whether they are facing an appeal.

3. [63]
   Ms Kelsey’s disregard for the processes of the Court and the legitimate interests of the respondents is egregious.”

31. [31]
    In assessing Ms Kelsey’s prospects of appeal, the primary judge observed that her case before the Commission turned ultimately on questions of credibility of witnesses and that her evidence was not accepted.^[7]  His Honour referred to the positive findings made by the Commission as to the motivation of each of the respondents in circumstances where the Vice President had the advantage of seeing the witnesses give evidence.^[8]  His Honour considered that any appeal founded on alleged errors in factual finding would “face huge difficulty”.^[9]  His Honour stated:

3. “[77]
   In order to overturn findings based on credit, this Court would have to be satisfied “that any advantage enjoyed by [the Vice President] by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the [Vice President’s] conclusion”.

3. [78]
   Such a conclusion will usually only be drawn where the judge has made findings which are inconsistent with non-contentious evidence or are “glaringly improbable”.

3. [79]
   The alleged “factual findings”, which are sought to be challenged here, fall into three categories:

3. 1.
   relevant evidence which the Vice President allegedly did not consider;

3. 2.
   irrelevant evidence which the Vice President did consider;

3. 3.
   the drawing of allegedly wrong inferences.”

32. [32]
    His Honour considered that it was a matter for the Vice President to determine what evidence he thought was important to the factual questions raised.  The Vice President was not therefore obliged to refer to every piece of evidence which Ms Kelsey thought was important.  His Honour stated that:^[10]

“none of these so-called failures throw any doubts upon the central findings made in relation to the motivation of the respondents’ findings made upon the credit assessment of the relevant witnesses.”

33. [33]
    His Honour concluded:

3. “[83]
   As observed, there are central factual findings as to whatmotivated the councillors to vote in favour of terminatingMs Kelsey’s employment. For the reasons explained,Ms Kelsey’s prospects of obtaining leave to challenge thosefactual findings are very poor. I also assess as very poor herprospects of reversing those findings given that they are basedon credit assessment.”

34. [34]
    In considering Ms Kelsey’s prospects of success on appeal, the primary judge made no express reference to Annexure B, nor was there any analysis of this annexure for the purposes of assessing whether the Vice President had, at first instance, palpably misused his advantage.  In oral submissions before the primary judge, Senior Counsel for Ms Kelsey, referred to State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, where the High Court discussed what it means for a trial judge to palpably misuse their advantage.  This includes circumstances where there is a failure by the trial judge to consider relevant bodies of evidence.
35. [35]
    The primary judge, in the course of oral submissions, was alive to this issue:^[11]

“HIS HONOUR:  Well – well, the way I understood Mr Murdoch’s submission – his main submission – was that the question of motivation, as we have defined it, is a question of – it’s a – a question of a state of mind.  In the – in the present circumstances, that can really only be proved circumstantially, and he says it’s an error of law to not take into account relevant bodies of evidence when determining, circumstantially, that question.  Now, I would have thought that – that that, as a broad proposition, is correct.  Whether it can be made out is a completely different kettle of fish, but that is a broad proposition, I think is right.”

Legal principles – The summary dismissal of an appeal in the context of an application to amend

36. [36]
    In Agar v Hyde (2000) 201 CLR 552 at [57] Gaudron, McHugh, Gummow and Hayne JJ, stated:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” (citations omitted).

37. [37]
    As observed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, there is a need for exceptional caution in exercising the power to summarily dismiss a proceeding whether it be inherent or under statutory rules.  While it is appropriate to exercise the power in circumstances where the proceeding amounts to an abuse of process or is vexatious, the court must otherwise take “great care”^[12] if it exercises a discretion to terminate proceedings.
38. [38]
    In MNSBJ Pty Ltd v Downing, Morrison JA refused an application to strike out an appeal.  His Honour stated:

3. “[28]
   There is no doubt that courts in common law jurisdictions hold close their power to protect parties from baseless allegations and conduct which is frivolous or vexatious.  This court has described the discretion to strike out proceedings improperly brought as a power which must be exercised with the utmost caution.  Factors which trigger the exercise of the discretion include: unidentified proceedings and those which make allegations against a party that cannot be understood, attempts to re-litigate points already heard by a court, and applications that are without merit and are therefore an abuse of the Court’s processes.”

Morrison JA explained that “identified proceedings” include appeals that fail to identify a ground of appeal or a potential error below from which an appeal can be brought.  His Honour considered that Mr Downing’s appeal did not provide any reasons, let alone reasons that would warrant an order overturning the decision below.  His Honour nevertheless considered that there were arguable appealable errors in the reasoning of the primary judge.  Accordingly, proceeding with the caution warranted by authority, his Honour refused the application to strike out the appeal.

39. [39]
    In Gambaro v Workers’ Compensation Regulator, Martin J, with specific reference to r 226 of the IR Rules, stated:

“The usual consequence of an appeal not complying with the rules in cases such as this one, would be to set it aside.  To set aside an appeal, however, does not necessarily prevent an appellant from continuing with the appeal.  A finding that the grounds of appeal are not stated concisely is not one which necessitates a finding that there is no arguable case.  Indeed, where an appellant has an arguable case on appeal, they should not be denied the opportunity to have their case heard for mere noncompliance with the rules if appropriate amendments can remedy the situation.”

Martin J did however observe that appeals ought to be dismissed where no arguable ground of appeal is raised.

Summary dismissal on the basis of no reasonable grounds of success on appeal

40. [40]
    No submission was made before the primary judge that the substituted application to appeal was an abuse of process or vexatious.  Nor could such a submission have been made in circumstances where the application to appeal contained 27 grounds of appeal settled by Senior Counsel.
41. [41]
    Before Ms Kelsey’s appeal could be summarily dismissed, the primary judge was required to assess her prospects with regard to the whole of the evidence, including Annexure B.  Ms Kelsey relied on the evidence identified in Annexure B for the purposes of submitting that the Vice President had palpably misused his advantage.
42. [42]
    In Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387, Basten JA at [175] stated:

“… if it can be shown that in reaching his conclusion the primary judge failed to deal in a satisfactory way with the substantial amount of evidence necessary to be dealt with before the relevant finding against the [respondent in the proceeding below] could be made, an appellate court on a rehearing is entitled to order a retrial, Fox v Percy supra [104]; State Rail Authority NSW v Earthline Constructions Pty Limited supra at [60], [90], [94].  This is because in such a situation there has not been a determination of the case upon a consideration of the real strength of the body of evidence presented.”

43. [43]
    Ms Kelsey submits that having regard to the extensive body of evidence dealt with in Annexure B, which was not dealt with in the primary judge’s reasons, it cannot be said that her appeal had no real prospects of success.^[13]
44. [44]
    Apart from the general observations made by the primary judge referred to at [31] above, the only other implicit reference to his Honour considering Annexure B is as follows:^[14]

“Ms Kelsey particularises the alleged inadequacy of reasons in great detail.  The criticisms are, with respect, thinly veiled factual complaints.  It was the prerogative of the Vice President to disagree with Ms Kelsey as to what the important evidence was and how all the evidence should be assessed.  The Vice President’s reasoning is clear.  He highlighted the evidence he thought was important, made findings of credit against Ms Kelsey and in favour of the respondents and applied the correct legal principles to the facts as found.”

These observations do not constitute the detailed analysis of Annexure B that would be required for the purposes of summarily dismissing Ms Kelsey’s appeal.  The first respondent however, submits that in a proceeding in which an additional layer of leave “in the public interest” was required in order to appeal against factual issues, in addition to the leave to amend the non-compliant application to appeal, and where the primary judge was unpersuaded that any of the factual complaints had any capacity to overturn the credibility findings by the Vice President, it was not necessary for the primary judge to provide detailed reasons for dismissing each of those contentions.^[15]  The second to eighth respondents submit that none of the matters identified in Annexure B would cause an appellate court to interfere with the Vice President’s findings.  At its highest, it is submitted, the matters raised in Annexure B are facts from which inferences might be drawn about the second to eighth respondents’ reasons at earlier periods in time.  The submission continues:

“None of the matters identified in Annexure B go to the second to eighth respondents’ reasons as at the time when they cast the vote on 7 February 2018.  Many of the matters complained of concern earlier events which the appellant sought to contend were inconsistent with other evidence given by the second to eighth respondents.  That is, they were matters relied upon to attack the credit of the second to eighth respondents.  Those attacks were not persuasive to the Vice President.  When the [Commission’s decision] is read in its whole, it is apparent that:

1. (a)
   There was objective evidence which was consistent with the second to eighth respondents evidence as to their reasons for voting; and
2. (b)
   That the Vice President believed the second to eighth respondents when they gave their evidence.”^[16]

These submissions of the respondents cannot be accepted.  The submissions ignore the fact that the primary judge did not engage with the matters in Annexure B in the course of summarily dismissing Ms Kelsey’s appeal.  This constituted an error on the part of the primary judge in circumstances where a cautionary approach was required in summarily dismissing Ms Kelsey’s appeal.

The alternative basis for dismissing the application to amend

45. [45]
    As outlined at [6] above, even if the primary judge had identified a reasonably arguable ground of appeal, his Honour would have otherwise dismissed the application to amend on the basis that it was not “just and fair” to allow the amendments.  His Honour’s reasons giving rise to this alternative basis for refusing the application are set out in [6] and [31] above.  His Honour considered that Ms Kelsey “demonstrated contumelious disregard” for the processes of the Industrial Court and that there was no reason to be confident that she could prosecute the appeal.
46. [46]
    Ms Kelsey submits that his Honour, in identifying this alternative basis for dismissing her application to amend, committed House v The King^[17] errors in taking into account extraneous or irrelevant considerations.  First, his Honour was critical of Ms Kelsey failing to explore alternative legal representation in the period between 10 June 2020 which was the date when the Commission’s decision was reserved and 1 April 2021, being the date when the Commission’s decision was delivered.  Ms Kelsey submits that prior to judgment, no sensible commitments could have been given by other solicitors as to their capacity or inclination to assist her with any subsequent appeal.  The Council submits that it was not an error for the primary judge to take into consideration that Ms Kelsey, as a lawyer, should be expected to take some steps (as opposed to no steps at all) to deal with one of the two possible outcomes of the proceedings.  The second to eighth respondents submit that given the appellant’s asserted impecuniosity and asserted inability to consider her prospects of appeal without legal advice, it would have been a reasonable step to make alternative arrangements for the provision of legal advice in the event that she was unsuccessful.^[18]
47. [47]
    In considering the application for amendment, this consideration was of limited relevance.  Within 21 days of the Commission’s decision being delivered, Ms Kelsey filed a non-complying application to appeal which, as found by the primary judge, was capable of amendment.  Within three weeks of the filing of the application to appeal, a directions hearing was held for the purposes of setting a timetable to enable Ms Kelsey to regularise her appeal.  The proposed substituted application to appeal containing 27 grounds of appeal was filed on 18 June 2021.  In those circumstances, any failure on the part of Ms Kelsey to attempt to engage other legal representatives prior to the Commission delivering its judgment on 1 April 2021, did not result in undue delay in the prosecution of the appeal.  Nor was any demonstrated prejudice suffered by the respondents.  While the taking into account of this consideration by the primary judge did not constitute an error in the House v The King sense, the consideration was of limited relevance.
48. [48]
    Secondly, the primary judge inferred that Ms Kelsey did not have the “skills or experience to represent herself in the preparation and hearing of any appeal” and that there was “no reason to be confident that she could prosecute the appeal if she was given leave to amend her application to appeal.”^[19]
49. [49]
    Ms Kelsey submits that these two factors should never, in and of themselves, be relevant factors in determining an application to amend.  By the time the application to amend was heard, extensive written submissions settled by Senior Counsel had been filed on behalf of Ms Kelsey.  These submissions provided a structured basis for Ms Kelsey to pursue her appeal as a self-represented appellant.  In those circumstances, the primary judge erred in taking these factors into account in determining whether it was fair and just for the application to appeal to be amended.
50. [50]
    Thirdly, the primary judge considered that Ms Kelsey “did not even commit, in the application to appeal document to pursuing the appeal.”^[20]  While as a statement of fact this is correct, what Ms Kelsey stated in her application to appeal filed 21 April 2021 was of limited relevance.  Since filing that document, Ms Kelsey had taken significant steps to prosecute her appeal, including the filing of an application to amend, an application to appeal with 27 grounds of appeal and a 54 page written submission.  Further, in those circumstances, it would be difficult to describe the steps taken by Ms Kelsey in prosecuting her appeal as being either “egregious”^[21] or as demonstrating a “contumelious disregard for the processes” of the Industrial Court.^[22]
51. [51]
    None of these factors, whether considered alone or together, could justify the refusal of Ms Kelsey’s application to amend nor the summary dismissal of her appeal.

Disposition

52. [52]
    The following orders should be made:

In Appeal No 6166 of 2022:

1. The appeal is allowed.
2. The order made by the primary judge on 6 May 2022 dismissing the application filed 18 June 2021 is set aside.
3. The application filed 18 June 2021 be remitted to the Industrial Court of Queensland to be considered by Deputy President Merrell.
4. The respondents pay the appellant’s costs of the appeal.

In Appeal No 9189 of 2022:

1. The order for costs made by the primary judge on 14 July 2022 is set aside.