Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Costanzo v State of Queensland (Office of Industrial Relations) - [2022] QIRC 446

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Costanzo v State of Queensland (Office of Industrial Relations)[2022] QIRC 446

Costanzo v State of Queensland (Office of Industrial Relations)[2022] QIRC 446

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Costanzo v State of Queensland (Office of Industrial Relations) [2022] QIRC 446

PARTIES:

Costanzo, John Baptist

(Applicant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO:

TD/2021/52

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

18 November 2022

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The Applicant's application for my recusal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – interlocutory application – application for recusal – allegation of beneficial relationship with Minister – allegation of bias due to lack of legal representation – allegation that rulings on disclosure reveal bias – lack of evidence to support relevant test – grounds for recusal not made out

LEGISLATION:

Industrial Relations Act 2016 ss 442, 445, 447

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

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

R v Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2015] ICQ 23

Re JRL; Ex parte CJL (1986) 161 CLR 342

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 247

Reasons for Decision

Background

  1. [1]
    By application filed 23 August 2022 Mr Costanzo seeks my recusal from this matter. The relevant background is that Mr Costanzo filed an application for reinstatement on 14 June 2021. Mr Costanzo seeks reinstatement to his position with the Office of Industrial Relations ('OIR').
  1. [2]
    Mr Costanzo has been represented at all times by Mr Barry Lowe who appears as an agent for Mr Costanzo. Mr Lowe has previously described himself as 'assisting' Mr Costanzo and does not purport to be qualified or experienced as either a legal practitioner or industrial advocate.[1]
  1. [3]
    The events leading to Mr Costanzo's termination arose following a lengthy absence from work that commenced in February 2018. In late 2020 Mr Costanzo was referred to two Independent Medical Examinations ('IMEs') which took place in or about December 2020. Mr Costanzo was examined by an occupational physician and a psychiatrist. A joint report was prepared by the doctors but there is also a full report from the psychiatrist setting out the details of her examination and her diagnosis and opinion.[2]
  1. [4]
    Relevantly, the occupational physician concluded that Mr Costanzo had a recent diagnosis of dilated cardiomyopathy ('the cardiac condition'). It was further concluded that notwithstanding this diagnosis Mr Costanzo was fit to perform his duties with OIR, but that his psychological symptoms were a significant barrier for him returning to the workplace.[3]
  1. [5]
    The report of the psychiatrist relevantly concluded that Mr Costanzo was suffering from an adjustment disorder with mixed disturbance of emotions and conduct ('the psychiatric condition'). The psychiatrist concluded that Mr Costanzo continued to experience symptoms and that they precluded his return to work.[4]
  1. [6]
    As a consequence of the medical opinions confirming Mr Costanzo's incapacity to return to work his employment was terminated on or about 25 May 2021.
  1. [7]
    Mr Costanzo's application for reinstatement purports to rely on the 'Industrial Relations Bill 2016' ('the IR Bill'). In reliance of the 'IR Bill' Mr Costanzo seeks certain orders which inter alia include (in essence):
  • A ruling that his dismissal was unfair;
  • A ruling that OIR breached the ‘IR Bill’ in that it breached the implied term of mutual trust and confidence;
  • Rescinding the decision by OIR to forcibly retire him;
  • Reinstate his QSuper Income Protection payments from May 2021;
  • An independent investigation by the Ombudsman or the Crime and Corruption Commission into the workplace incident at the Townsville Golf Club in January 2018 ('the golf club incident'); or
  • A specified amount of compensation.
  1. [8]
    The matter was unsuccessfully conciliated before another member of the Commission.  The matter then was allocated to me in January 2022.
  1. [9]
    On 23 August 2022, following a series of mentions before me between 10 February and 3 June 2022 Mr Costanzo now makes application for me to recuse myself from dealing with his matter further. A number of matters relied on by Mr Costanzo in support of his application for my recusal are said to arise out of interactions with his agent Mr Lowe at the mentions.

The mentions

The mention on 10 February 2022

  1. [10]
    The matter was mentioned on 10 February 2022 to determine if the parties were ready to program the matter for hearing. OIR indicated they were ready to proceed to hearing and had draft directions ready.
  1. [11]
    Mr Lowe (on behalf of Mr Costanzo) resisted the draft directions prepared by OIR notwithstanding that he was assured they were in the nature of relatively standard directions issued by the Commission leading up to an unfair dismissal hearing.[5]
  1. [12]
    During the course of discussion at this mention about the types of documents relevant for disclosure it became apparent that Mr Lowe was contemplating traversing a number of factual matters that were of questionable relevance to the termination of Mr Costanzo's employment on medical grounds. Mr Lowe alluded to having 'five large plastic crates' full of documents and it was going to take 'many months' for them to establish which were relevant.[6]
  1. [13]
    As the discussion with Mr Lowe ensued it became a matter of immediate concern to me that Mr Lowe was intent on delving into historical grievances which, while they may form antecedents to the onset of Mr Costanzo's psychiatric condition, were not materially relevant to the assessment of his capacity to return to work that led to his termination.
  1. [14]
    Notwithstanding my concerns, Mr Lowe's request for an extended period to examine the 'many' documents he had in his possession was indulged. Directions were issued relating only to disclosure. The matter was then re-listed for further mention on 6 May 2022. 

The mention on 6 May 2022

  1. [15]
    A further mention was held on 6 May 2022 to ascertain the status of the disclosure and any disputes arising from the exchanging of lists of documents. Mr Lowe contended that certain documents had not been included on the list of documents provided by OIR and that he sought disclosure of those documents. Counsel for OIR indicated that they had not had any request for such documents.
  1. [16]
    In those circumstances I gave Mr Lowe some assistance by way of instruction as to how he might bring this disclosure issue to a conclusion. It was suggested that Mr Lowe write to Crown Law with a list of the documents he wanted. Mr Lowe was then advised that if any further disputes arose, he could make a formal application for disclosure which would then be considered.[7]
  1. [17]
    A directions order was issued on 6 May 2022 that relevantly provided:

Either party wishing to make an application regarding disclosure must file in the Industrial Registry, and serve on the other party, the application, together with any supporting affidavit material and a written outline of argument by 20 May 2022. 

(Emphasis added)

The application regarding disclosure

  1. [18]
    On 17 May 2022, Mr Lowe, on behalf of Mr Costanzo emailed the registry enclosing a document titled 'QIRC disclosure of documents May 2022'. The document outlined a number of documents the applicant requested from OIR.
  1. [19]
    On 23 May 2022 the Registry wrote to Mr Costanzo and indicated the document received by email on 17 May 2022 was not compliant with the directions order of 6 May 2022 and was therefore not accepted for filing.
  1. [20]
    Mr Costanzo wrote to the Registry on 24 May 2022 asking which part did not comply with the directions order.
  1. [21]
    On 25 May 2022 Mr Costanzo filed a document identical to the document filed and served on 17 May 2022 but on this occasion, it was accompanied by a short affidavit. It was not accompanied by a formal application.
  1. [22]
    The matter was listed for a further mention on 3 June 2022.

The mention on 3 June 2022

  1. [23]
    At the outset of the mention, as an introduction to dealing with the disclosure dispute, it was reinforced to Mr Lowe (appearing for Mr Costanzo) that when an application for unfair dismissal is brought, an applicant is entitled to conduct their case as they see fit but within very clear limits. It was pointed out that evidence cannot be called or led that is not relevant to the matters materially in issue or in dispute.[8] Specifically it was noted that Mr Costanzo could not, for example, litigate or re-litigate historical matters which may relate to grievances in the workplace, workers compensation claims etc where such matters were not relevant.[9]
  1. [24]
    The categories of documents sought for disclosure and outlined in the document filed on 25 May 2022 and Mr Costanzo's affidavit were then discussed at length, without any objection or complaint from Mr Lowe. It is noted that this was done despite the form of the document filed on 25 May 2022 not complying with the directions issued on 6 May 2022. The informal approach was in keeping with the Commission's obligations pursuant to s 447(2) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 
  1. [25]
    The mention proceeded for approximately one hour. The transcript reveals that Mr Costanzo (through Mr Lowe) had an extensive opportunity to make submissions as to why he said that each of the nominated categories of documents ought to be disclosed. Each category was considered in turn and rulings made.
  1. [26]
    It is not necessary in these reasons to set out in detail how each category was dealt with, suffice to say that the vast majority of Mr Costanzo's disclosure requests were refused. For the most part, Mr Costanzo's requests were refused because he sought documents that related to historical events and grievances in his workplace which were considered irrelevant. In some cases, the documents requested were identified as being publicly available. In one instance OIR conceded a request to supply certain emails sought by Mr Costanzo.
  1. [27]
    There was significant discussion about the relevance of documents (or facts) connected to the golf club incident. Mr Lowe continued to press the point that he considered these matters relevant. Mr Lowe contended that these historical events were relevant because the doctors conducting the IMEs were misinformed as to the circumstances giving rise to the onset of Mr Costanzo's psychiatric condition.
  1. [28]
    As an aside, an examination of the IME reports reveals that the historical events (including the golf club incident) are mentioned only as part of the antecedent facts with respect to the development of Mr Costanzo's psychiatric condition. They are by no means critical to the opinions expressed by the doctors about Mr Costanzo's capacity to return to work which, in both cases, were largely based on their clinical examinations of Mr Costanzo (as at January 2021).
  1. [29]
    Despite my continued attempts to explain to him what matters were relevant, Mr Lowe was wholly unable or unprepared to accept that the dismissal was founded on medical opinions to the effect that Mr Costanzo was unlikely to be fit to return to his employment in the foreseeable future. Mr Lowe was wholly unprepared to accept that the cause of the incapacity identified by the IMEs will not be a factor relevant to determining whether a dismissal on the grounds of incapacity was unfair.
  1. [30]
    When pressed on the issue Mr Lowe contended that the facts as to the golf club incident were misrepresented to the doctors conducting the IMEs and therefore the validity of their opinions can be challenged once the facts (as contended by Mr Costanzo) are established. There are two difficulties with these submissions.
  1. [31]
    Firstly, the IMEs were engaged to evaluate Mr Costanzo's capacity to return to his employment. The factual basis for the onset of any incapacity that he presented with in the IMEs could not influence a clinical opinion of the symptoms displayed by Mr Costanzo at the IME or what they indicated about his capacity to return to his employment.
  1. [32]
    Secondly, to the extent it might be relevant, it was pointed out to Mr Lowe that if he intended to argue that the doctors opinions were flawed because they had relied on some misrepresentation of events dating back to January 2018, he could simply put his alternative factual scenario to the doctors during the proceedings and invite them to indicate whether those alternative facts would alter their opinions about  Mr Costanzo's capacity at the time they examined him.
  1. [33]
    Ultimately, I ruled that documents sought pertaining to these historical issues did not have to be disclosed.
  1. [34]
    Towards the end of the mention on 3 June 2022 Mr Lowe appeared to be confused as to the nature of the proceeding that had just taken place.[10] Despite almost one hour of fulsome discussion about the categories of documents sought to be disclosed in the document filed on 25 May 2022, Mr Lowe appeared to consider that he should still have an opportunity to file an application for disclosure.[11]
  1. [35]
    There is no basis for Mr Lowe to reasonably believe this. The direction issued on 6 May 2022 was clear enough. Any application for disclosure was required to be filed and served (with accompanying evidence and arguments) by 20 May 2022. Mr Costanzo made his first attempt to comply on 17 May 2022. When advised on 23 May 2022 that the document he emailed did not comply with the directions, Mr Costanzo then made another attempt (without leave) on 25 May 2022.
  1. [36]
    Despite his non-compliance with the directions (on both occasions) it was explained to Mr Lowe at the conclusion of the mention that we had just dealt with Mr Costanzo's disclosure 'application'.[12] Ironically my reference to 'not following the rules'[13] (which was a reference to my departure from technicalities and procedural formality to allow Mr Costanzo's non-compliant application to be considered) has now been seized upon by Mr Lowe as an example of some form of 'misconduct' on my part.

The application for recusal

  1. [37]
    On 15 July 2022, Mr Costanzo sent an email to the Industrial Registry titled 'Complaint – Removal of Commissioner J.C. Dwyer'. The email includes three attachments, titled 'deceptive conduct', 'errors by Commissioner' and 'Bias and Prejudice'.
  1. [38]
    Mr Costanzo was advised by return email that the 'complaint' was not compliant and would be dealt with at an upcoming mention scheduled for 5 August 2022.  Mr Costanzo replied again by email directly requesting I 'disqualify' myself.
  1. [39]
    An email was sent on behalf of my chambers on 29 July 2022 indicating that while the correspondence did not constitute a formal application, to avoid unnecessary technicalities, it would be treated as if it were a formal request for recusal. The mention scheduled for 5 August was vacated and the parties were advised that directions would be issued with respect to the filing of submissions.
  1. [40]
    Directions were subsequently issued inviting submissions in respect of the application. Notwithstanding it was not necessary, on 23 August 2022 Mr Costanzo then filed a formal application for recusal accompanied by inter alia submissions. 
  1. [41]
    The material attached to the recusal application on 23 August 2022 is extensive and appears to deal with matters beyond the submissions in support of recusal. The attachments are primarily in two sections. The first attachment is seven pages long and is headed 'Application for recusal of Commissioner Dwyer' ('the recusal application').
  1. [42]
    The second attachment is 27 pages long and is headed 'QIRC Complaint Code of Conduct breach against Commissioner Dwyer' ('the complaint').
  1. [43]
    Before dealing with the recusal application, it is necessary to dispense with the complaint.

The complaint

  1. [44]
    The complaint cannot properly be characterised as part of the recusal application. Apart from a request that I be removed from the matter (set out on the first page) the remaining 26 pages either seek orders in the nature of remedies for Mr Costanzo's substantive application or alternatively seek to re-visit my rulings regarding the numerous categories of disclosure that were refused at the hearing of those matters on 3 June 2022. While they are described as complaints about my conduct, the essence of the 'complaint' is that Mr Costanzo considers those rulings are wrong. 
  1. [45]
    The complaint is, in effect, an appeal against my decision on 3 June 2022. Consequently, with the exception of some contextual comments below relevant to the allegation of bias, I do not intend to consider those matters in any detail.

The recusal application

  1. [46]
    The recusal application is a somewhat disorganised document but, what is clear, is that it purports to be based on grounds of bias. The particulars of the allegations made are (broadly):
  • That I have beneficial links to The Minister for Industrial Relations because I was appointed by her, and she is the Minister for OIR;
  • The disclosure decisions I made on 3 June 2022 are such that a fair-minded lay observer would reasonably apprehend they were not impartial because they 'protect the actions and decisions' of the Deputy Director General of OIR; and
  • That I have made comments revealing a bias against Mr Costanzo because he is not legally represented.
  1. [47]
    Before dealing with each of these grounds it is necessary to consider the relevant principles to which I must have regard in determining whether I ought to recuse myself.

Relevant principles

  1. [48]
    An allegation of bias is serious, and attracts the considerations outlined in Briginshaw v Briginshaw.[14] A conclusion of bias will not be reached lightly.[15]
  1. [49]
    The test for disqualification on the ground of bias is set out in Ebner v Official Trustee in Bankruptcy[16] where it was said:

... A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[17]

…

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[18]

(emphasis added)

  1. [50]
    Additionally, in Minister for Immigration and Multicultural Affairs v Jia Legeng,[19] it was held:

Decision-makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-makers mind is blank; it is whether it is open to persuasion.…

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.[20]

(Emphasis added)

  1. [51]
    The rule against bias is directed to prejudgment which is not capable of being altered by evidence or argument.[21]
  1. [52]
    Mason J elaborates on this point in Re JRL; Ex parte CJL:[22]

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party…

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[23]

(Emphasis added)

Submissions of the Applicant

  1. [53]
    Mr Costanzo contends that I fail the apprehended bias test as articulated in Ebner v Official Trustee.[24]
  1. [54]
    Mr Costanzo submits bias has arisen because 'the Commission Member has some direct or indirect relationship, experience or contact' with persons involved in the case. Mr Costanzo submits that as the Minister for Industrial Relations portfolio covers both the Queensland Industrial Relations Commission ('the Commission') and OIR, a beneficial link exists between me and the Minister and OIR.
  1. [55]
    Mr Costanzo submits that the President of the Commission thanked Deputy Director General Craig Allen (who terminated Mr Costanzo's employment) and the Minister for Industrial Relations 'for their assistance' and their roles in the functions of the Court and Commission. Mr Costanzo submits that he has informed me he intends to call Mr Allen as a witness and contends key statements made by him are false and misleading.
  1. [56]
    Mr Costanzo submits that when he raised this at the mention on 3 June 2022 I said 'if you seek to start trawling through those events in evidence at the hearing of this matter, I'll be stopping you quick smart' in response to Mr Costanzo indicating he would call Mr Allen as a witness.
  1. [57]
    Mr Costanzo also broadly asserts that I have made decisions (presumably on 3 June 2022) which lack impartiality and are prejudiced against him.
  1. [58]
    Mr Costanzo's submissions also contend that I refuse to accept that Mr Costanzo has been denied the support of Legal Aid and that the state of Queensland is denying him the assistance of legal aid, and that I have a 'disdain' that he is not legally represented.

Submissions of OIR

  1. [59]
    OIR opposes the application for recusal. OIR's submissions provide that the application for recusal must fail because firstly, the grounds of apprehended bias are not substantiated, and secondly Mr Costanzo failed to articulate any logical connection between the alleged grounds and the asserted apprehension that I may not bring an impartial mind to determining Mr Costanzo's case on its merits.
  1. [60]
    OIR submits that Mr Costanzo's application appears to be an attempt to re-litigate the disclosure application, and that his dissatisfaction with my findings in that application is not a proper basis to assert a reasonable apprehension of bias.
  1. [61]
    OIR notes that Mr Costanzo's submissions in relation to the Minister appointing and promoting commissioners to the Commission are not correct as such appointments are made by the Governor of Queensland, not the minister.[25]
  1. [62]
    OIR notes Mr Costanzo's assertion in respect of the tripartite relationship between the Minister, OIR and the QIRC such that I am not impartial in matters of my decision making involving OIR misapprehends the fundamental doctrine of the separation of powers on which the government is based.
  1. [63]
    OIR submits that comments relied upon by Mr Costanzo such as 'if you seek to start trawling through those events' were not in response to any suggestion by Mr Costanzo that he intended to call Mr Craig Allen, the Deputy Director-General as a witness; rather it was an expression of the lack of direct relevance of the category of documents sought to any issue in dispute in the substantive matter. OIR submits this is clear when the comment is read in the context of the transcript.
  1. [64]
    OIR submits that the transcript makes it clear that I went to some length to explain why categories of disclosure, such as the documents sought pertaining to the golf club incident were not material to the determination of whether Mr Costanzo was unfairly dismissed.
  1. [65]
    OIR submits that Mr Costanzo's submission that 'his flawed reasoning is apparent in the Transcripts' does not identify any passage in the transcript or elaborate on what the flaws are. OIR, citing relevant authorities, notes the mere dissatisfaction with an adverse decision does not support an argument for bias.[26]
  1. [66]
    OIR notes the assertion of Mr Costanzo in relation to his denial of Legal Aid Support has not been raised on the record before me. OIR notes even if the submissions of Mr Costanzo that he has been denied Legal Aid due to his claim being against the State of Queensland were accurate, it is not a matter of relevance to the apprehension of bias against me.
  1. [67]
    OIR also provided submissions in response to Mr Costanzo's complaint letter but given I do not intend to deal with the complaint letter in these reasons I do not intend to summarise the submissions of OIR in this regard.
  1. [68]
    Overall OIR submits that the matters relied on by Mr Costanzo fall short of demonstrating, to the requisite degree of probability that there is a reasonable apprehension of bias. OIR contends the matters do not demonstrate a reasonable apprehension that I am predisposed to preferential treatment of OIR, nor do they demonstrate that I am incapable of bringing a fresh mind to the determination of the case.
  1. [69]
    OIR also notes that Mr Costanzo has not addressed the essential second step in the application of the bias principle. Mr Costanzo must articulate how the matters he says demonstrate the apprehended bias might be thought by a reasonable observer to prevent his case being determined on the merits. OIR submits as this connection has not been articulated, the application should fail.
  1. [70]
    OIR concludes their submissions by contending that I ought not to accede too readily to a recusal request in the absence of properly substantiated grounds and a clear and articulated link as to how those matters may divert me from deciding the final case on its merits.

Consideration

Beneficial links to the Minister for OIR

  1. [71]
    The assertion of a beneficial relationship is misconceived. The appointment of members to the Commission is ultimately made by Governor in Council. Further, once appointed, a Member sits and determines matters independently. Contrary to Mr Costanzo's submission I was not appointed to the Commission by the Minister for OIR nor am I answerable to her. 
  1. [72]
    Further, and for completeness, my oath of office that I swore on 9 July 2019 relevantly provides:

As a Commissioner…I will at all times and in all things do equal justice to all persons and discharge the duties and responsibilities of the office according to law to the best of my knowledge and ability without fear favour or affection.

  1. [73]
    The bias asserted by Mr Costanzo is akin to an allegation of corruption i.e. that as a member of the Commission and a judicial officer I am prepared to disregard my oath and determine matters with partiality in return for (or perhaps in restitution for) some alleged benefit from either the Minister responsible for or senior members of OIR.
  1. [74]
    It is a naïve characterisation of the governmental machinations necessary for appointment to the Commission to assert that they present in a way such that a reasonable lay observer would apprehend bias. Notwithstanding this, it is a very serious allegation which, beyond 'connecting dots' in an overly simplistic way by Mr Costanzo, is not supported by evidence sufficient to meet the requisite standard of proof.
  1. [75]
    In the circumstances I reject the assertion by Mr Costanzo that there is any beneficial relationship as alleged or at all. I further reject the assertion that the circumstances of my appointment to the Commission would give any reasonable observer an impression to the contrary.

The disclosure decisions made on 3 June 2022 are such that a fair-minded lay observer would reasonably apprehend they were not impartial

  1. [76]
    As observed earlier in these reasons, the material accompanying Mr Costanzo's recusal application includes a complaint about my conduct that predominately deals with the proceedings and the decisions made on 3 June 2022. As I indicated earlier, I do not intend to deal directly with complaints about my conduct in that broader context, but instead I will address the allegations only to the extent that Mr Costanzo seeks to rely on them as 'evidence' of bias.
  1. [77]
    It must be remembered that the relevant setting for the proceedings that occurred on 3 June 2022 begins with the direction issued on 6 May 2022. Those directions prescribed the actions open to Mr Costanzo should he wish to seek disclosure of documents beyond what OIR had listed or already disclosed. Mr Costanzo had until 20 May 2022 to execute such actions.
  1. [78]
    Prior to the mention on 3 June 2022 Mr Costanzo had made two attempts to file material that he presumably thought would serve as an application for disclosure. He first filed material on 17 May 2022 which was rejected by the Registry. He then (without leave) made a second attempt to file more expansive material on 25 May 2022.
  1. [79]
    Neither attempt was successful in the technical sense in that, neither attempt included an actual application. Nevertheless, it was sufficiently apparent to me from the material filed what documents or classes of documents were sought by Mr Costanzo. Given the Commission's obligations to avoid unnecessary technicalities and facilitate the fair and practical conduct of proceedings, Mr Costanzo's 'application' was dealt with on 3 June 2022.[27]
  1. [80]
    Mr Costanzo (and Mr Lowe) could not reasonably have been labouring under any misunderstanding as to the nature of the proceeding on 3 June 2022. Indeed, it was established at the outset (without objection from Mr Lowe) that I intended to 'work through' the material he had filed on 25 May 2022 to see whether we could reach some 'middle ground'.[28]
  1. [81]
    Following my introductory comments Mr Lowe then proceeded to robustly participate in the process, making fulsome submissions as to the relevance of the documents he sought disclosed. Further, he was given ample opportunity to hear and respond to submissions from counsel for OIR and also questions or comments from the bench. 
  1. [82]
    Even if the manner in which the disclosure request was dealt with on 3 June 2022 was in some way procedurally unfair to Mr Costanzo (which is not accepted), such unfairness could not, of itself, give rise to a reasonable apprehension of bias of the type contemplated in the authorities set out above.
  1. [83]
    With respect to the decision made, I do not intend to delve into the particulars of each part of the decision I made on 3 June 2022. Suffice to say the vast majority of documents sought by Mr Costanzo were determined to be irrelevant or otherwise not amendable to disclosure. Quite apart from that, many of the categories were too broad and lacked particularity, though I note that those additional objectional aspects were not considered during proceedings. 
  1. [84]
    At the outset of the proceedings on 3 June 2022 the parameters of the relevant factual matrix of this matter were identified.[29] This was not done by way of a final determination but rather, to inform Mr Lowe of the context within which I would be considering his request for disclosure and what was likely to be relevant at the final hearing. It remained open for Mr Costanzo (through Mr Lowe) to persuade me that broader factual matters were relevant, but despite having the opportunity to do so, he did not.
  1. [85]
    Despite numerous opportunities to persuade me otherwise, Mr Lowe failed to present any compelling argument as to how the facts surrounding the golf club incident could be relevant to a decision to dismiss Mr Costanzo on medical grounds of incapacity. Further, many of the other aspects of Mr Costanzo's request for disclosure are connected to the broader workplace issues that he apparently was experiencing at and around January 2018. No compelling argument was made in respect of these matters either.
  1. [86]
    For completeness, I note the transcript clearly reveals that my comments to the effect that I will not allow Mr Lowe to 'trawl through events' is a reference to these historical matters and is in no way a response to a suggestion that Mr Allen was being called to give evidence. It ought to be noted for completeness and clarity that Mr Allen is entirely unknown to me in any capacity.
  1. [87]
    It is more than clear that Mr Costanzo and Mr Lowe are unprepared to accept my ruling on these matters. I accept they hold their view most vehemently. But their opportunity to argue their case has come and gone. It was open to Mr Costanzo to appeal my decision. Instead, he has elected to seek that I recuse myself and has consequently now lost the opportunity to have the Industrial Court consider my 3 June 2022 decision.
  1. [88]
    Dissatisfaction with a decision is not grounds for an allegation of bias. Even if I were subsequently found by an appeal court to be wrong about the relevance of these historical events, that could not give rise to a reasonable apprehension of bias in the mind of a reasonable lay observer on the current state of the evidence.

Comments revealing a bias against Mr Costanzo because he is not legally represented

  1. [89]
    The particulars of this allegation would appear to be a singular reference in the transcript of the first mention held in this matter on 10 February 2022 where I said to Mr Lowe words to the effect of: 'if you want to take this thing seriously, get someone who knows what they are doing'.[30] As always, context is everything in appreciating the true meaning of a comment.
  1. [90]
    The matter was listed for mention on 10 February 2022 so that it could be programmed for hearing. It was at this mention that Mr Lowe (appearing for Mr Costanzo) first revealed that the disclosure process would be delayed for 'months' while he and Mr Costanzo examined 'five large plastic tubs' of documents.
  1. [91]
    It is something of a concerning anomaly for an applicant in reinstatement proceedings to foreshadow a need for a delay of 'many months' before they can comply with a direction to provide a list of documents. Having done just that, it was of immediate concern to me that Mr Lowe was demonstrating a number of misconceptions about these proceedings, including a failure to understand what was relevant. It was a matter of immediate concern for me that this was going to cause prejudicial delay in the finalisation of proceedings.
  1. [92]
    To be clear, my concern to inform and correct Mr Lowe about his apparent misconceptions was primarily born out of a concern for Mr Costanzo. Given the likely narrow scope of relevant issues, Mr Costanzo's interests would likely be best served by an expeditious determination of his application, especially where reinstatement was sought.
  1. [93]
    Throughout the course of the mention on 10 February 2022 it became apparent that Mr Lowe could not be dissuaded in his view as to the importance of the historical events and documents apparently related to them. Ultimately, and without any dilution of his wishes, Mr Lowe's proposals were acceded to and there was a period of two months allocated for the process of document lists being prepared and exchanged, and for disclosure. That is to say, despite my express misgivings about the course of action proposed by Mr Lowe, the proposed extended time frame was allowed precisely according to his wishes.
  1. [94]
    It would appear that in forming his allegation of bias Mr Lowe has misconstrued my comment 'if you want to take this thing seriously'. This phrase (in any context) is not used in a derisory way e.g., as a suggestion that someone is not serious. It is most commonly used as a form of counsel to encourage a different or more fulsome effort by a participant in some endeavour. That was certainly the intent of the comment I made, and the transcript confirms this.
  1. [95]
    A review of the transcript reveals that in its context, my comment was likely a feature of increasing concern at the alarming lack of insight being shown by Mr Lowe, rather than any bias. In addition to demonstrating an unwillingness to depart from his plan to examine 'many' boxes of historical documents of questionable relevance, Mr Lowe then directly asked me to provide him with guidance about the structure and content of document lists. It ought to be noted that this was in the broader context of the substantive application that purported to rely on the IR Bill and seeks some fanciful orders and remedies well beyond the powers of this Commission.
  1. [96]
    At the point in the transcript where I make the comment said to reveal bias against Mr Costanzo for not being legally represented, it is clear my motivation was an increasing concern that Mr Lowe's involvement may lead to serious disadvantage to the parties, including Mr Costanzo.
  1. [97]
    Importantly, my comment does not suggest Mr Costanzo should or must get a lawyer to represent him. My comment encourages him to 'get somebody who knows what they are doing'. My comment is a reflection about Mr Lowe's concerning ineptitude, not about legal representation. The comment was entirely motivated by increasing concern about Mr Lowe's mishandling of Mr Costanzo's application and how that could unfairly impact on Mr Costanzo. 
  1. [98]
    Mr Costanzo points to no other comment or action on my part that he says demonstrates bias against him because he is not legally represented. In his recusal application Mr Costanzo makes a submission about a retired public servant being unable to obtain legal aid. I am at a loss to relate this to any aspect of my dealings with Mr Costanzo or Mr Lowe. Moreover, the submission makes no sense.
  1. [99]
    For completeness it is noted that there is an exchange in the transcript of the proceedings of 3 June 2022 where Mr Lowe indicates 'they' will be getting legal advice and I make a comment encouraging that course of action but again, this is a reflection of my concern that Mr Lowe's inept handling of Mr Costanzo's matter will cause unfairness to Mr Costanzo, not a preference for legal representation.[31]
  1. [100]
    Mr Costanzo is entitled to be represented by any person he chooses. There is no expectation or preference for him to be legally represented. Further, there are a great many non-legally qualified advocates who competently represent parties before this Commission.
  1. [101]
    Mr Costanzo has chosen to place his reinstatement application into the hands of Mr Lowe. Mr Lowe specifies that he is not 'acting' for Mr Costanzo but is instead 'assisting' him.[32] Notwithstanding that distinction, Mr Costanzo filed a 'Notice of Appointment of Agent' form on 23 August 2022 appointing Mr Lowe as his agent in these proceedings.
  1. [102]
    In all of his appearances before me to date, Mr Lowe has demonstrated a propensity for belligerence when he is challenged or when he is refused a request. Many self-represented or unqualified advocates will struggle from time to time to maintain composure when they become frustrated or confused. Such responses are well within the normal tolerances of the Commission when they occur at appropriate junctures in proceedings. Mr Lowe's combative demeanour goes beyond these tolerances at times and descends to outright unreasonableness.[33]
  1. [103]
    Ultimately, however well-meaning he might be, I consider that Mr Lowe is likely to do more harm than good to Mr Costanzo's cause. But choice of representative is entirely a matter for Mr Costanzo.
  1. [104]
    Notwithstanding this, it is my duty to intervene (where appropriate) to manage the proceedings and to ensure that the parties (including Mr Costanzo) have a fair and efficiently conducted hearing. My commitment in this regard, which is consistent with my oath of office, is the antithesis of bias. It could certainly not  be considered by a fair minded lay observer as an indication of bias against Mr Costanzo for not being legally represented.
  1. [105]
    In those circumstances I reject the application for recusal on these grounds.

Conclusion

  1. [106]
    Mr Costanzo has sought my recusal in circumstances where he has made serious allegations of bias. He has entirely failed to demonstrate the bias he alleges either because of misconceived arguments or a lack of any evidence (or both). In reality his application appears to have been precipitated by dissatisfaction with rulings I made with respect to disclosure on 3 June 2022. This dissatisfaction cannot form a valid basis for my recusal.
  1. [107]
    Mr Costanzo may well be dissatisfied with those rulings. The appropriate mechanism for airing such a grievance would have been an appeal but instead, Mr Costanzo has elected to 'attack the decision maker rather than the decision'. It is a flawed and misconceived approach which is ominously consistent with his conduct of this matter more broadly.
  1. [108]
    In all of the circumstances I consider Mr Costanzo's application for my recusal wholly fails to meet the evidentiary standard necessary for me to accede to such a request. I am mindful of the words of Mason J in Re JRL; Ex parte CJL.[34] My duty to sit is an important one, and not one that ought to be readily compromised.
  1. [109]
    In this instance there is no case for recusal.

Order

  1. The Applicant's application for my recusal is dismissed.

Footnotes

[1]T 1-12, l 31 (10 February2022).

[2]See bundle of documents filed by Mr Costanzo on 21 June 2021.

[3]See report of Dr Oltvolgyi dated 13 January 2021 (contained in bundle of documents filed 21 June 2021).

[4]See report of Dr O'Hare dated 13 January 2021 (contained in bundle of documents filed 21 June 2021).

[5]T 1-6, ll 9-11 (10 February 2022).

[6]T 1-7, ll 1-20 (10 February 2022).

[7]T 1-5, ll 26-34.

[8]T 1-2, ll 29-32.

[9]T 1-2, ll 35-44.

[10]T 1-20 - 1-21 (3 June 2022).

[11]T 1-21, l 15 (3 June2022).

[12]T 1-20 ll 40-45 (3 June 2022).

[13]T 1-20, ll 40-45 (3 June 2022).

[14](1938) 60 CLR 336.

[15]R v Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546 at 553-554.

[16](2000) 205 CLR 337.

[17]Ibid, 344.

[18]Ibid, 345.

[19](2001) 205 CLR 507.

[20]Ibid, 531.

[21]Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2015] ICQ 23 at [9].

[22](1986) 161 CLR 342.

[23]Ibid at 352.

[24](2000) 205 CLR 337.

[25]Industrial Relations Act 2016 (Qld) ss 442, 445.

[26]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 247 per Gummow A-CJ, Crennan and Bell JJ at [64], cited in New Acland Coal Pty Ltd v Smith (supra) at 119.

[27]T 1-20, ll 3 - T 1-21, l 10. See also Industrial Relations Act 2016 (Qld) s 447(2).

[28]T 1-2 ll 10-25.

[29]T 1-2 - T 1-3 (3 June 2022).

[30]T 1-12, ll 30-45.

[31]T 1-20, ll 10-20 (3 June 2022).

[32]T 1-12, l 31 (10 February 2022).

[33]See for example T 1-11, ll 25-45 (3 June 2022).

[34](1986) 161 CLR 342.

Close

Editorial Notes

  • Published Case Name:

    Costanzo v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    Costanzo v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2022] QIRC 446

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    18 Nov 2022

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
5 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
Cite 4 - (2000) 205 CLR 337
Cite 5 - (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 247
2 citations
Jump To
Cite 1 - (2011) 244 CLR 247
Cite 2 - (2011) 244 CLR 247
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
3 citations
Jump To
Cite 1 - (2001) 205 CLR 507
Cite 2 - (2001) 205 CLR 507
Cite 3 - (2001) 205 CLR 507
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
2 citations
Jump To
Cite 1 - (1969) 122 CLR 546
Cite 2 - (1969) 122 CLR 546
Re JRL; Ex parte CJL (1986) 161 CLR 342
4 citations
Jump To
Cite 1 - (1986) 161 CLR 342
Cite 2 - (1986) 161 CLR 342
Cite 3 - (1986) 161 CLR 342
Cite 4 - (1986) 161 CLR 342
Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2015] ICQ 23
2 citations
Jump To
Cite 1 - [2015] ICQ 23
Cite 2 - [2015] ICQ 23

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.