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Smith v Kelsey & Ors; Dalley & Ors v Kelsey & Ors
 QCA 55
This case involved an appeal against a refusal to stay proceedings in the Industrial Relations Commission (“IRC”). Respondents in those proceedings had subsequently been charged with fraud arising out of the same factual circumstances. They argued that the IRC proceedings, if they were not stayed, would determine similar issues to those that would arise in criminal proceedings subsequently. Further, that adverse publicity would prejudice a fair trial. The Court of Appeal found that the application for a stay had been correctly refused. The IRC proceedings involved distinct issues, and any adverse publicity could be remedied by directions to a jury. The balance of convenience also favoured refusal of a stay.
Morrison and Philippides JJA and Brown J
27 March 2020
Ms Kelsey was appointed the CEO of Logan City Council in June 2017. . In October 2017, she made a Public Interest Disclosure (PID) alleging possible misconduct by the then Mayor, Mr Smith. . In February the following year, her employment was terminated following a vote of the Council. . She commenced proceedings in the Industrial Relations Commission (IRC) against the Council, Mr Smith, and Councillors who voted for her termination. She alleged contraventions of s 285 of the Industrial Relations Act 2016 (IR Act) (which prohibits adverse action against a person who exercises a workplace right – such as the making of a PID), and s 48 of the Public Interest Disclosure Act 2010 (which provides relief in the event of a “reprisal” for making a PID). , , .
In April 2019, the appellants (Mr Smith and Councillors who voted for Ms Kelsey’s termination) were charged by the Crime and Corruption Commission with fraud under s 408C of the Criminal Code 1899. It was alleged that they dishonestly caused a detriment to Ms Kelsey by terminating her employment. . As a result of the criminal charges, the appellants applied to the IRC for a stay of those proceedings, on the basis that the same issues may need to be determined in a criminal trial, and that a decision by the IRC would prejudice a fair trial. .
The IRC refused to grant a stay. . The Industrial Court (per Martin J) dismissed an appeal against that refusal. . This case involves a further appeal from the Industrial Court’s decision. The Court of Appeal unanimously dismissed the appeal (per Morrison JA, with whom Philippides JA and Brown J agreed).
Issues on the appeal
There were four issues that received the bulk of the Court of Appeal’s attention: (1) whether the same (or sufficiently similar) issues would need to be determined in the criminal proceedings; (2) whether there was a “strict rule” whereby civil proceedings should be stayed if similar issues arise in criminal proceedings; (3) whether the risk of prejudice through adverse publicity justified a stay; and (4) whether the balance of convenience weighed in favour of a stay. In relation to those issues, the court concluded as follows:
1) There is a substantial difference between the IRC proceedings and the anticipated criminal proceedings. Most importantly, the criminal charges would require proof that the appellants had acted dishonestly. . In comparison, the IRC proceedings would not necessitate a finding of dishonesty. , . For example, a contravention of s 285 of the IR Act may be found if the appellants are unable to rebut a presumption that adverse action was taken because of the exercise of a workplace right (due to s 306(2) of the IR Act). . The court was also satisfied that the IRC would “properly observe the need for restraint so that relevant findings only go so far as they need to”. .
2) There is no strict rule whereby civil courts should not interfere with criminal proceedings in another court. As Wooten J recognised in McMahon v Gould (1982) 7 ACLR 202, a balancing exercise had to be undertaken, which would take into account such matters as: the burden on a plaintiff of interfering with his ordinary rights to have his action tried in the ordinary way; and the risk of a miscarriage of justice in the criminal proceedings (among other matters). –.
3) To the extent that a decision in the IRC proceedings would attract publicity, there was no reason to doubt that proper directions could be given to a jury to exclude those matters from their consideration. . The court considered that it should ‘proceed on the basis that the jury will conduct itself in accordance with directions given to it’ (applying R v Ferguson (2008) 186 A Crim R 483). , .
4) The balance of convenience (utilising factors outlined in McMahon v Gould, discussed above) did not favour the grant of a stay. The court emphasised that the IRC proceedings were “at the point of finalisation” (with only oral submissions and a decision of the IRC remaining to be completed), while the criminal proceedings “have only just begun”. –. Given how long resolution of the criminal proceedings could take, a stay of the IRC proceedings would have to be for “a very considerable period of time”. . That would be prejudicial to Ms Kelsey, who would not have her name cleared, and would bear financial and personal strain, for that period of time. .
Lastly, the court considered whether alternative relief should be granted – such as the IRC not publishing its reasons, publishing them only to the parties, or hearing the remainder of the IRC proceedings in camera. However, the court considered that “the circumstances here do not warrant secrecy”, and that the IRC could make those orders itself if it considered them appropriate. , .
The Court of Appeal’s conclusion on the above issues broadly aligned with the Industrial Court’s treatment of them. . The court considered that there had been no error in the Industrial Court’s dismissal of the appeal from the IRC. , , , . Accordingly, this further appeal was also dismissed. .