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Kelsey v Logan City Council & Ors (No.6)[2018] QIRC 115

Kelsey v Logan City Council & Ors (No.6)[2018] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kelsey v Logan City Council & Ors (No.6) [2018] QIRC 115

PARTIES: 

Kelsey, Sharon Rae Marie

(Applicant)

v

Logan City Council

(First Respondent)

&

Smith, Timothy Luke

(Second Respondent)

&

Dalley, Cherie Marie

(Third Respondent)

&

Lutton, Russell Bruce

(Fourth Respondent)

&

Swenson, Stephen Frederick

(Fifth Respondent)

&

Smith, Laurence William

(Sixth Respondent)

&

Pidgeon, Philip Wayne

(Seventh Respondent)

&

Schwarz, Trevina Dale

(Eighth Respondent)

&

Breene, Jennifer Rachael Julie

(Ninth Respondent)

CASE NO:

PID/2017/3

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

5 September 2018

HEARING DATES:

21 August 2018

MEMBER:

HEARD AT:

O'Connor DP

Brisbane

ORDERS:

1. The applications for further discovery in respect of categories 1(a) to (d) inclusive of the application for discovery filed on 3 August 2018 are dismissed.

2. Pursuant to Rule 46 of the Industrial Relations (Tribunals) Rules 2011 the applicant, produce to the 1st to the 9th respondents within 14 days of the date of this decision all the documents coming within the class of the documents specified in category 1(e) and 1(f) of the application for further discovery filed on 3 August 2018.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC INTEREST DISCLOSURE – Application for disclosure – where the 3rd to 9th respondents seek orders that the applicant disclose documents falling within six discrete categories – where the application is opposed – principles of disclosure – whether disclosure should be ordered in the circumstances.

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld), s 451, s 452, s 314, s 531

Industrial Relations (Tribunals) Rules 2011 (Qld), r 41, r 46, r 60, r 61

Associated Dominions Assurance Society Pty Ltd v. John Fairfax & Sons Pty Ltd (1952) 72 WN 250

Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320

Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5

Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 2) [2015] QSC 124

Murrays Australia Ltd v Training Recognition Council and Others (2002) 170 QGIG 11

NSW Crime Commission v Hawes (1992) 74 A Crim R 199

Patrick Stevedores No. 1 Limited & Anor v MUA & Ors Print P8680.

QNU v Sundale Garden Village, Nambour [2004] QIRComm 2312

Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No) [1995] FCA 1418

Western and Parer v State of Queensland (No.4) [2016] QIRC 075

APPEARANCES:

Mr D Williams of Minter Ellison Lawyers for the Applicant.

Mr A Herbert of Counsel, instructed by King & Company Solicitors for the First Respondent.

Ms A Szczepanski of Gadens Lawyers for the Second Respondent.

Mr C Massy of Counsel, instructed by McInnes Wilson Lawyers for the Third to Ninth Respondents.

Reasons for Decision

  1. [1]
    This is an application in existing proceedings by the 3rd to 9th respondents pursuant to rule 41(2)(o) of the Industrial Relations (Tribunal) Rules 2011 that the applicant disclose documents falling within six discrete categories.
  1. [2]
    The applicant opposes the orders sought. Simply put, the applicant contends that the application for discovery is premature and that the pleadings remain uncertain.
  1. [3]
    Disclosure follows the closing of pleadings. The applicant submits that pleadings are not closed because the 3rd to 9th respondents have not indicated whether their current response is the response that they intend to take to trial. In answer to that assertion, the 3rd to 9th respondents advised the Commission that at no time have the 3rd to the 9th respondents resiled from or suggested that they wish to amend the response filed by them in response to the direction order of the Commission.[1]
  1. [4]
    The 3rd to 9th respondents seek that the applicant provide discovery of all relevant documents in six categories:
  1. (a)
    which evidence, record and/or otherwise describe the Applicant's contact with Councillors Darren Power, Laurie Koranski, Stacey McIntosh, Jon Raven and Lisa Bradley from 27 June 2017 to present;
  1. (b)
    which evidence, record and/or otherwise describe the Applicant's contact with Mayoral candidate John Freeman from 1 December 2017 to present;
  1. (c)
    which evidence, record and/or otherwise describe the Applicant's contact with Former Mayor Ms Pam Parker from 1 December 2017 to present;
  1. (d)
    which evidence, record and/or otherwise describe the Applicant's contact with media organisations or journalists from 1 December 2017 to present, relating to her employment or these proceedings;
  1. (e)
    referred to in [118] of the Applicant's affidavit of 11 January 2018;
  1. (f)
    which evidence, record and/or otherwise describe the meetings and discussions alleged to have been witnessed or participated in by the Applicant as pleaded to by the Applicant in her Further Amended Application, or Affidavits as filed in the proceeding.

Background

  1. [5]
    On 27 June 2017, Ms Kelsey was appointed as the Chief Executive Officer of Logan City Council with her contract of employment containing a six month probationary period during which her employment could be brought to an end on two weeks' notice.
  1. [6]
    The third to ninth respondents, Cherie Marie Dalley, Russell Bruce Lutton, Stephen Frederick Swenson, Laurence William Smith, Phillip Wayne Pidgeon, Trevina Dale Schwarz and Jennifer Rachel Julie Breene, are elected Councillors of Logan City Council.
  1. [7]
    On 10 October 2017, Ms Dalley, Ms Schwarz and Mr Smith, conducted a performance review meeting with Ms Kelsey. During this meeting, the Councillors present told
    Ms Kelsey that there were concerns with her performance.
  1. [8]
    On 12 October 2017, Ms Kelsey, through her solicitors, issued correspondence to each of the Councillors, the Crime and Corruption Commission, and to the Minister for Local Government, alleging possible misconduct on behalf of the Mayor of Logan City,
    Mr Timothy Luke Smith (Second Respondent).
  1. [9]
    On 1 December 2017, Ms Kelsey commenced proceedings against the Council and Mr Smith, alleging contraventions of s 285 of the Industrial Relations Act 2016 and s 48 of the Public Interests Disclosure Act 2010.
  1. [10]
    On 25 January 2018, Ms Kelsey sought interlocutory orders restraining the Council from voting on the continuation of her employment, and restraining Mr Smith from being involved in the consideration of her employment. Ms Kelsey was unsuccessful against Logan City Council, but interlocutory orders were made restraining Mr Smith from taking certain steps in respect of Ms Kelsey’s employment.
  1. [11]
    On 7 February 2018, the Council voted to terminate Ms Kelsey's appointment as Chief Executive Officer. Her employment was brought to an end by the Council giving her two weeks notice.

Disclosure in the Commission

  1. [12]
    Rule 41(2)(o) of the Rules provides that the Commission may make an order requiring disclosure of documents.
  1. [13]
    Rule 46 governs the duty to disclose and is in the following terms:

  46  Duty of disclosure

  (1) If a directions order requiring disclosure of documents is made, a party must disclose any document that—

   (a) is relevant to the proceeding or a matter in issue in the proceeding; and

   (b) is in, or comes into, the possession of the party.

  (2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.

  (3) Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

  1. [14]
    The "train of inquiry" test, as propounded in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co[2] (Peruvian Guano) remains the test of general application for discovery in the Commission.[3] In the Peruvian Guano case, Brett LJ stated:

It seems to me that every document relates to the matters in question in the action, which not only would be evidenced upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.[4]

  1. [15]
    In the Supreme, District and Magistrates Courts, r 211 of the UCPR requires that each party has a duty to disclose each document in its possession or under its control that is directly relevant to an allegation in issue in the pleadings, or a matter in issue in the proceeding.  Unlike what is required by Rule 46 of the Rules, the directly relevant test is intended to impose a threshold on the process of discovery.  It replaced the old Peruvian Guano test. The Peruvian Guano test requires disclosure of every document relating to matters in question in the proceeding including those containing information which could directly or indirectly enable either party to advance its case. 
  1. [16]
    The obligation in respect of disclosure applies to documents relevant to an allegation in issue in the pleadings. Where disclosure has been made by a party, another party seeking further disclosure must establish there are documents in the possession or power of the first party which are relevant to issues in dispute which have not been disclosed by that first party. The respondents referred the Commission to the decision of Fisher IC in Western and Parer v State of Queensland (No 4) where Fisher IC identified the following principles concerning orders for disclosure:[5]

A decision of the Commission to order disclosure is a quintessential exercise of discretion.[6]

To be discoverable a document must relate to the question or issues to be decided by the proceedings.[7]

A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.[8]

A party will not be required to produce documents where to do so would be oppressive.[9]

A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.[10]

Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.[11]

The Facts supporting disclosure

  1. [17]
    The 3rd to 9th respondents submit that they did not initially seek disclosure from the applicant on the basis that the predominate issue in contention was the subjective reasons of the respondents for acting as they did to terminate the applicant's employment. However, the production by Cr Koranski of the text messages demonstrated according to the 3rd to the 9th respondents that there was a significant amount of coordination going on between the existing councillors and others.
  1. [18]
    The material facts said to support the application for further disclosure by the 3rd to 9th  respondents are as follows:
  • On 5 July 2018, a number of documents, including text messages between Cr Laurie Koranski and Ms Kelsey, and Cr Koranski and Former Mayor Ms Pam Parker, were disclosed by Cr Koranski. Those text messages reveal that Councillor Koranski and the Applicant have been discussing the progress of this litigation and that the Applicant has thanked Cr Koranski for her attempts to gain media attention about the Applicant's case.
  • The text message produced by Cr Koranski also reveal that Cr Koranski and Ms Parker have been in regular contact about the conduct of the Applicant's proceeding.
  • Mr John Freeman, a former Mayor of the first respondent and who was an unsuccessful candidate for Mayor at the 2016 election has established a "Go Fund Me" page on behalf of the Applicant.
  • On 9 July 2018, McInnes Wilson Lawyers wrote to the Applicant's lawyers:
  • Advising that a number of documents had been provided which called into question statements made in the applicant's sworn affidavit material in regards to her ability to be reasonably returned to her role; and
  • Requesting voluntary disclosure of certain categories of documents relevant to those matters.
  • On 16 July 2018, the Applicant's lawyers responded to this request by advising that the documents requested were not directly relevant to matters in issue in the proceeding and that the time for disclosure had passed.

The category of documents sought

  1. [19]
    I now turn to consider the request in respect of each of the six identified categories. In dealing with each, it is, in some instances, convenient to deal with the individual categories as a group.

Category 1(a), 1(b) and 1(c)

  1. [20]
    The 3rd to the 9th respondents contend that whether the applicant has remained apolitical or entered the political domain by associating with or aligning herself with the five councillors is a matter relevant to the question of whether she should, if her application is successful, be reinstated to her former position. Accordingly, the extent to which the applicant has or has not entered the political fray is a matter relevant to the issue of reinstatement. 
  1. [21]
    The affidavit of James Fraser Christensen sworn on 21 August 2018 annexes to it a series of text messages and extracts from a Facebook page of contact primarily between
    Cr Koranski and others, including the applicant.
  1. [22]
    The 3rd to 9th respondents submit: "If the applicant has allied herself with the five councillors, it is impossible to see how she can be re-instated to a role which requires her to be apolitical and impartial."
  1. [23]
    It is not in dispute that the applicant's termination was voted for by the 3rd to 9th respondents and opposed by the five named councillors in 1(a). The applicant argues that her position is not a political one. Rather, political people have divided amongst themselves and have voted to terminate her employment. If a political dimension exits then it is in that context. The applicant also submits that she can hardly be blamed for having an association with those who have supported her.[12] Many of the text messages are personal in nature. They offer encouragement and support.
  1. [24]
    It is fair to say that the initiator of the texts has primarily been Cr Koranski. The texts do not show any communication with Darren Power, Stacey McIntosh, Jon Raven or Lisa Bradley the other four councillors identified in 1(a).
  1. [25]
    The applicant's evidence is that she denies that she has formed an alliance with the five named councillors.[13] Indeed, in her affidavit of 18 May 2018 she states at paragraph 10:

As CEO, I believed, and still believe that it was and is important for me to work with all councillors to assist them in doing their best work for their respective Divisions. This involved me having a knowledge of each councillor, their division and each councillors working style.

  1. [26]
    The applicant further states at paragraph 13 of her affidavit of 18 May 2018 that she remains committed to working with all councillors should she be reinstated.
  1. [27]
    Mr Freeman was a former Mayor and an unsuccessful candidate for the Mayoralty at the 2016 election. I was advised by Counsel for the 3rd to the 9th respondents that Mr Freeman intends on running for the Mayoralty at the next local government election.
  1. [28]
    It is submitted that Mr Freeman has established a Go Fund Me account to assist with the applicant's legal costs.[14] It is said that certain assertions against the 1st respondent and by implication, the 3rd to 9th respondents are published on the site.
  1. [29]
    The affidavit of Aaron Raymond Bradford sworn on 18 April 2018 upon which the 3rd to 9th respondents rely and to which my attention was directed sets out at paragraph 29 the following quotes:

This is a social justice campaign to raise funds to help fund the legal fees of Ms Sharon Kelsey;

This talented women is fighting for social justice and fairness in decision making in the Queensland Industrial Court for wrongful dismissal as CEO of Logan City Council;

She is single-handedly taking on the City's Mayor, Seven Councillors and the body corporate Council; and

I ask that you give as little or as much as you can afford, every dollar will count in this fight and, I know that Sharon will return the funded amount a hundred times over through the dedication and the commitment she has to the Logan community should she be reinstated.

  1. [30]
    Exhibit AB3 to the affidavit of Aaron Raymond Bradford is an extract taken from the Go Fund Me website:

The Mayor being charged is only the beginning, the saying that the fish rots from the head down is very applicable in this situation. The smell from the council chambers is so bad at the moment it is going to take a long time to clean up. The gang of seven shamefully got rid of the CEO, a change manager not a yes person and she upset a few of the gang. Now they are going to have their day in court as well, and it will be on the public purse as we the rate payers give them the ability to pay the insurance premium.

If the community really wants change, NOW is their chance to get Shannon (sic) Kelsey back as CEO so we can put our Council back into the hands of the Logan community and send a clear message that we need, want and deserve answers and social justice in all the council's decision making.

Some of our councillors need to be reminded that they are the servants of community not the other way around.

  1. [31]
    The affidavit of Mr Bradford also states that the Go Fund Me campaign had raised $670 of which $20 was donated by Mr Freeman.
  1. [32]
    It is also submitted by the 3rd to 9th respondents that the applicant has "…not disavowed that page or Mr Freeman's support". Instead, the applicant has posed for photographs with Mr Freeman and Ms Parker which have been published alongside stories about the proceedings in the Commission which include comment from the applicant.
  1. [33]
    Ms Parker, like Mr Freeman, is a former Mayor of Logan City. It is the contention of the 3rd to 9th respondents that the applicant has attempted to gain support from Ms Parker and involve her in the litigation.
  1. [34]
    In relation to category 1(c) it is asserted that:

The applicant's attempt to gain support from a former Mayor and involve the former Mayor in strategising about the case with existing councillors is plainly a matter which goes to whether the applicant can be reinstated to the position of CEO.[15]

  1. [35]
    The 3rd to the 9th respondents have not directed me to any evidence to support that contention. The text messages do not in my view support the contention that the applicant has actively sought out Ms Parker in order to gain her support. Nor do I think that the text messages suggest that Ms Parker has been "…strategising about the case with existing councillors".
  1. [36]
    Both Ms Parker and Mr Freeman are private citizens and as such are free, within the bounds of the law, to make comment about the respondents.  They are entitled to express their personal view. Ms Parker was a onetime supporter of the 2nd respondent. She now expresses her disappointment. I do not accept that it is for the applicant to publically disavow herself of the comments of Mr Freeman and Ms Parker.
  1. [37]
    Both Mr Freeman and Ms Parker are not parties to the litigation and neither have an active or current involvement with the 1st respondent. At the highest, Mr Freeman has apparently expressed a desire to run for office at the next local government election.
  1. [38]
    It is not immediately clear to me how the text messages between Cr Koranski and Ms Parker, has any evidential materiality to the applicant's claim for reinstatement and the respondents' opposition to it.
  1. [39]
    The 1st respondent has taken the position in its instructions to support the decision to terminate the employment of the applicant and to oppose any application to have that decision set aside. However, there is merit in the submission of the applicant that should the Commission determine that the decision was unlawful then the 1st respondent might not maintain its current position and, in those circumstances, may adopt a different stance and the issue of reinstatement may become irrelevant.
  1. [40]
    In Associated Dominions Assurance Society Pty Ltd v. John Fairfax & Sons Pty Ltd, Owen J, with whose judgment the other members of the Full Court agreed:

A 'fishing expedition' in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.[16]

  1. [41]
    What is requested in category 1(a), (b) and (c), is in my view, a purely speculative investigation. A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.
  1. [42]
    I am of the view that the request as set out in 1(a), 1(b) and 1(c) is properly characterised as a fishing expedition. The 3rd to 9th respondents, not knowing what will be produced; not knowing whether there is anything relevant in any documents which may be produced; and not aware if it is reasonably likely to add, in any relevant way, to the evidence in the proceedings asks the Commission to allow it to "drag the pool"[17] in the hope that something of the description in 1(a),(b) or (c) may be discovered.
  1. [43]
    I do not accept that the request in respect of either Mr Freeman or Ms Parker is relevant to the issue of the applicant's reinstatement. I am unconvinced that an order should be made requiring the applicant to undertake discovery in relation to either person on the off-chance that something might show up based upon some relatively weak inference.
  1. [44]
    The respondents must demonstrate that the document or category of documents offer a real probability of evidential materiality in the sense that it must be a document or category of documents of which, in the ordinary way, can be expected to yield information of substantial evidential materiality to the pleaded claim and the response to it. If it cannot be demonstrated that the document or category of document is clearly connected to the issues in the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, the application concerning categories 1(a), (b) and (c) should be dismissed.

Category 1(d)

  1. [45]
    The respondents contend that the applicant seeks to rely on the significant media attention to justify a claim for reinstatement and damages. The 3rd to 9th respondents argue, somewhat unconvincingly in my view, that in the event of a successful application, the extent to which the applicant has attempted to increase media attention surrounding her dismissal goes directly to the question of damages the applicant might receive based on the notoriety of her case. Moreover, it is relevant if the applicant is going to claim that as a consequence of the media attention she ought to be reinstated because she would be unable to secure a position elsewhere.
  1. [46]
    With respect to the media coverage, reference is made to pages 13, 19 and 45 of the affidavit of Aaron Bradford.  The first of the three articles by Ms Judith Kerr to which I was referred, has the by-line "CCC officers return to Logan council, councillors in turmoil". The second article written by Ms Kerr on 13 February 2018 is titled "Outspoken councillors fears reprisal in planning committee restructure." It makes only a passing reference to the applicant and her dismissal. The final article referred to by the 3rd to 9th respondents is headed "Dumped Logan CEO Sharon Kelsey attends Mayor's Gala Ball". The applicant is photographed with Councillors Koranski, Power and Raven and makes reference to her rubbing shoulders with the "…glitterati of Logan City – and some of those who sacked her – at the Mayor's Annual Ball." However, the main focus of the article is to acknowledge that it was a charity fundraiser for a terminally ill 18 month old.
  1. [47]
    It is also contended that the text messages support the view that the applicant has been in contact with Ms Kerr. It is argued that it is relevant to the exercise of the discretion to know whether or not "she [Ms Kelsey] was the author of that misfortune".[18] I disagree. The dismissal of the applicant, the involvement of the Crime and Corruption Commission in the affairs of the 1st respondent, the subsequent standing down of the Mayor and a councillor have, of themselves been sufficient to provoke media attention.
  1. [48]
    Again, the request is based on mere speculation and I am not persuaded that an order for disclosure ought to be made.

Category 1(e) and (f)

  1. [49]
    The applicants contend that the documents in category 1(e) and (f) are directly relevant to matters raised in the proceedings. In paragraph [118] of the affidavit of the applicant dated 11 January 2018 it states: "I spent the next few weeks documenting my concerns."
  1. [50]
    I accept that the 3rd to 9th respondents are entitled, if not already disclosed, to documents referred to in paragraph [118] of the applicant's affidavit of 11 January 2018.
  1. [51]
    In reference to 1(f), the 3rd to 9th respondents seek documents which relate to meetings at which it is suggested that one or more of the 3rd to 9th respondents took action which was either adverse action or they behaved in a manner which suggested that they were unhappy with her. In particular, the 3rd to 9th respondents make reference to paragraph 14.4 of the Further Amended Application filed on 10 April 2018 and paragraphs [59] to [63] of the applicant's affidavit of 12 March 2018 to support their contention. I am of the view that the 3rd to 9th respondents are entitled to documents which describe the meetings and discussions alleged to have been witnessed or participated in by the applicant as pleaded in her Further Amended Application, or as contained in the applicant's affidavit of 12 March 2018 as filed in these proceedings.

Some general observations

  1. [52]
    It goes without saying that it is in the interests of the proper administration of justice that all relevant information is disclosed at an early stage in proceedings to assist the parties to assess the strengths and weaknesses of their respective cases. 
  1. [53]
    The current approach within the Commission for discovery as expressed in Rule 46 reflects the Peruvian Guano test or "train of inquiry" approach. This test, as noted above, enables documents to be discovered that are not directly relevant but that may fairly lead the parties to a train of inquiry that would advance their own case or damage their adversary's case.
  1. [54]
    In my view, the test ought to be narrowed to reflect modern practice so as to require discovery of documents that are directly relevant to the issues in dispute. The advantages are that such a test reflects the approach in the UCPR and will assist to reduce the time and cost involved in the discovery process. Importantly in this jurisdiction, it is likely to assist in focusing the parties' minds on the parameters of discovery and to narrow the issues to be determined by the Commission at the hearing.
  1. [55]
    I wish to emphasis again the comments made by me at the hearing of this application concerning the desirability of having this matter progress expeditiously to hearing. 
  1. [56]
    In this regard, I make reference to the comments of Young J in Field v Inglis,[19] where it was observed:

It is a little unsatisfactory having to make a determination of this sort of matter on an interlocutory basis because sometimes the full facts and circumstances do not come to light until the final hearing. However, it is also in the interests of everybody to keep costs and expenses to a minimum in litigation and to get the real questions between the parties on for trial as soon as possible.

  1. [57]
    I respectfully endorse the comments of his Honour Justice Young and impress upon all parties to move expeditiously to a final hearing of this matter.

Conclusion

  1. [58]
    This case is a good example of the practical difficulty that a Court or Tribunal faces to resolve a contest as to an order sought for further disclosure based on a highly contentious factual matrix.[20]
  1. [59]
    Reinstatement is one of the orders which can be made under s 314 of the Industrial Relations Act 2016. The 3rd to the 9th respondents argue that the issue of the applicant's reinstatement should her application be successful is a live issue. The issue underpins this application.
  1. [60]
    The 3rd to 9th respondents have raised the issue as to whether reinstatement would be impracticable. Whilst the question of whether the applicant should or should not be reinstated is a matter for determination at a later stage it is worth remembering the reasoning of de Jersey P in Auto Logistics Pty Ltd v Kovacs, where his Honour considered the meaning of word "impracticable". He wrote:

That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible.[21]

  1. [61]
    For the reasons advanced above, I am not persuaded to exercise my discretion to grant the application for discovery in respect of categories 1(a), (b), (c), or (d). In respect of categories 1(e) and (f), I am of the view that they ought to be the subject of an order for discovery. Those two categories are relevant to an allegation or allegations in issue in the pleadings.

Order

  1. The applications for further discovery in respect of categories 1(a) to (d) inclusive of the application for discovery filed on 3 August 2018 are dismissed.
  1. Pursuant to Rule 46 of the Industrial Relations (Tribunals) Rules 2011 the applicant, produce to the 1st to the 9th respondents within 14 days of the date of this decision all the documents coming within the class of the documents specified in category 1(e) and 1(f) of the application for further discovery filed on 3 August 2018.

Footnotes

[1] T8-29 Ll 6-16.

[2] (1882) 11 QBD 55.

[3] Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5, 3 Per Bechly C; QNU v Sundale Garden Village, Nambour [2004] QIRComm 2312, 6.

[4] Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.

[5] [2016] QIRC 75, [4].

[6] Murrays Australia Ltd v Training Recognition Council and Others (2002) 170 QGIG 11, 12.

[7] Henderson Greetings Pty Ltd AND Bernadette Andrews (1999) 160 QGIG 47, 48.

[8] Compagnie Financiere du Pacifique v. Peruvian Guano Co. (45) (1882) 11 QBD 55, 63; Queensland Nurses' Union of Employees AND Sundale Garden Village, Nambour (2004) 177 QGIG 861, 864 citing Mulley v Manifold (1959) 103 CLR 341, 345; Trade Practices Commission v CC (New South Wales) Pty Ltd [1995] FCA 1418; (1995) 131 ALR 581.

[9] Patrick Stevedores No. 1 Limited & Anor v MUA & Ors Print P8680.

[10] Ibid.

[11] Murrays Australia Ltd, op cite, citing Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125.

[12] T8-24 Ll. 46-47, T3-25 Ll.1-4.

[13] Affidavit of Sharon Kelsey sworn on 18 May 2018.

[14] Paragraph 28 of the Affidavit of Aaron Raymond Bradford sworn on 18 April 2018.

[15] T8-14 Ll 1-6.

[16] (1952) 72 WN 250, 254.

[17] NSW Crime Commission v Hawes (1992) 74 A Crim R 199, James J (at 203).

[18] T8-14 Ll 28-30.

[19] unreported, 8 February 1994, SCNSW, Equity Division.

[20] See: Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 2) [2015] QSC 124 per Jackson J.

[21] (1997) 155 QGIG 320.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QIRC 115

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor DP

  • Date:

    05 Sep 2018

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
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN 250
2 citations
Jump To
Cite 1 - (1952) 72 WN 250
Cite 2 - (1952) 72 WN 250
Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs (1997) 155 QGIG 320
2 citations
Jump To
Cite 1 - (1997) 155 QGIG 320
Cite 2 - (1997) 155 QGIG 320
Ballantine and Son Limited v F.E.R. Dixon and Son Limited [1974] 1 WLR 1125
1 citation
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Cite 1 - [1974] 1 WLR 1125
Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QB.D 55
4 citations
Jump To
Cite 1 - (1882) 11 QB.D 55
Cite 2 - (1882) 11 QB.D 55
Cite 3 - (1882) 11 QB.D 55
Cite 4 - (1882) 11 QB.D 55
Henderson Greetings Pty Ltd AND Bernadette Andrews (1999) 160 QGIG 47
1 citation
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Cite 1 - (1999) 160 QGIG 47
Henderson Greetings Pty Ltd v Bernadette Andrews [1999] QIRComm 5
2 citations
Jump To
Cite 1 - [1999] QIRComm 5
Cite 2 - [1999] QIRComm 5
Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124
2 citations
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Cite 1 - [2015] QSC 124
Cite 2 - [2015] QSC 124
Mulley v Manifold (1959) 103 CLR 341
1 citation
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Cite 1 - (1959) 103 CLR 341
Murrays Australia Ltd v Training Recognition Council and Others (2002) 170 QGIG 11
2 citations
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Cite 1 - (2002) 170 QGIG 11
Cite 2 - (2002) 170 QGIG 11
New South Wales Crime Commission v Hawes (1992) 74 A Crim R 199
2 citations
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Cite 1 - (1992) 74 A Crim R 199
Cite 2 - (1992) 74 A Crim R 199
QNU v Sundale Garden Village, Nambour [2004] QIRComm 2312
2 citations
Jump To
Cite 1 - [2004] QIRComm 2312
Cite 2 - [2004] QIRComm 2312
Queensland Nurses' Union of Employees AND Sundale Garden Village, Nambour (2004) 177 QGIG 861
1 citation
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Cite 1 - (2004) 177 QGIG 861
Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 131 ALR 581
1 citation
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Cite 1 - (1995) 131 ALR 581
Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No) [1995] FCA 1418
2 citations
Jump To
Cite 1 - [1995] FCA 1418
Cite 2 - [1995] FCA 1418
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75
2 citations
Jump To
Cite 1 - [2016] QIRC 75
Cite 2 - [2016] QIRC 75

Cases Citing

Case NameFull CitationFrequency
Bond v State of Queensland (No. 2) [2020] QIRC 782 citations
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 2) [2024] QIRC 2592 citations
Mohr-Edgar v State of Queensland (Legal Aid Queensland) (No. 2) [2020] QIRC 1854 citations
Peng v Bak10Cut Pty Ltd [2020] QIRC 1153 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2025] QIRC 2033 citations
Watton v TAFE Queensland (No.2) [2021] QIRC 2992 citations
Zarin Amavand v Kanjini Co-Op Ltd [2025] QIRC 863 citations
1

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