Horton v State of Queensland

1. It is apparent from the recent High Court authorities that what is sometimes referred to as the "third step", follows Ebner's two step process and requires the assessment of the "reasonableness of that apprehension from the perspective of a fair-minded lay observer": Isbester at [59] (Gageler J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [293] (Jagot J); Director of Public Prosecutions v Smith [2024] HCA 32; (2024) 98 ALJR 1163 at [92] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

• [13] In Michael Wilson & Partners Ltd v Nicholls,[10] Gummow ACJ, Hayne, Crennan and Bell JJ distinguished between the relevant enquiries in respect of actual and apprehended bias:

1. Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue.

• [14] In oral submissions, Ms Horton stated that she formed the view that there was bias on the part of the Industrial Commissioner after she had received the Primary Decision.[11]

• [15] Ms Horton contends there was actual bias on the part of the Industrial Commissioner by pointing to five reasons given by the Industrial Commissioner in the Primary Decision.

• [16] The first is that the Industrial Commissioner gave more weight to the Department's submissions.[12]

• [17] The second is that, at paragraph [29] of the Primary Decision, the Industrial Commissioner concurred with the submissions of the Department that the time delay in the Ethical Standards Unit ('ESU') investigation of her was reasonable[13] and, as a consequence, the Industrial Commissioner:

• turned '...a blind eye' to that delay as being a breach of procedural fairness by the ESU because the Department '...took a year to build up a case against' her;[14]

• overlooked the breach by the ESU of the '...Disciplinary Directive 14/20 4 principles, which "directs for an early intervention and avoiding an unnecessary and disproportionately protracted dispute"';[15] and

• ignored the Department's violation of the '... (PS Act) employment law, directives, policies and procedures.'[16]

• [18] The third is that at paragraph [44] of the Primary Decision - where the Industrial Commissioner summarised an email exchange on 13 April 2022 between Mr Steve Thompson, Senior Case Manager of Moresol Pty Ltd ('Mr Thompson') and Ms Horton - the Industrial Commissioner '... intentionally produced a statement of a false email, replacing the actual email.'[17]

• [19] The fourth is that at paragraph [100] of the Primary Decision - where the Industrial Commissioner set out Ms Horton's submission that the investigator and the decision-maker had close relationships with other staff members, and particularly, that there was a friendly relationship between one of the staff members who made the allegations against her and the investigator - the Industrial Commissioner did not give the name of a particular public service officer from the ESU and thereby protected that public service officer '...from being associated with allegations of misconduct.'[18]

• [20] The fifth is that at paragraph [107] of the Primary Decision - where the Industrial Commissioner referred to Ms Horton's submission that the Queensland Human Rights Commission ('QHRC') '...agrees' with her that the disciplinary finding decisions involve evidence of victimisation against her because the QHRC referred her complaint of reprisals to the Queensland Industrial Relations Commission - the Industrial Commissioner called her (Ms Horton):

'[M]isguided' and will not recognise a fact that the QHRC accepted the actions of the ESU as reprisals, against the appellant, yet to be proven.[19]

• [21] In oral submissions, Ms Horton submitted that while the Industrial Commissioner was correct to state that her complaint to the QHRC had not been proven, she felt that, in reading the Industrial Commissioner's reasons, the Industrial Commissioner '...was annoyed' that she had made a submission about that topic.[20]
• [22] Ms Horton also submitted:
  1. The appellant is aware there are other biases throughout the Commissioners [sic] document, some are more obvious than others. The appellant did not receive a fair review as the Commissioner throughout the process was too biased towards the respondent's protection and invested in their success. There are no other ways to explain but through bias, how a Commissioner can accumulate so many errors including ignoring relevant material evidence, misinterpreting documents, ignoring the respondents' misconduct, making fake statements and disregarding and finding no substance in the appellant submissions etc. The Commissioners findings were not fair and reasonable and should be dismissed.
  2. On the balance of probabilities, the Commissioners [sic] biased review process and subsequent Order in favour of the respondents, has not proven the allegations of misconduct against the appellant. There is no reasonable satisfaction that the facts as presented are correct and occurred as stated by the respondents. In Briginshaw v Briginshaw 1930, the standard of proof was established for decision makers to be satisfied on the balance of probabilities
     1. To a comfortable degree; and
     2. Based on very clear and cogent evidence

No 'fair-minded person' would agree that the Commissioner has satisfied this standard. The appellant asks the Commission considering these facts, that the appeal be allowed and the substantiation of the allegations against the appellant be dismissed.

• [23] The Department submitted that, on a fair reading of the Primary Decision, the Industrial Commissioner determined the matter on its merits in accordance with s 562B(3) of the IR Act.[21]
• [24] I accept the Department's submissions. Ms Horton's submissions must be rejected. For the reasons that follow, Ms Horton does not raise any proper grounds to contend that the Industrial Commissioner was actually biased.

• [25] Similarly, the issues raised by Ms Horton cannot give rise to a conclusion that there was apprehended bias on the part of the Industrial Commissioner.

• [26] Ms Horton's submission is that actual bias is demonstrated because the Industrial Commissioner gave more weight to the Department's submissions. This submission cannot be accepted. For the reasons given in paragraph [62] of these reasons, the issue to be determined by the Industrial Commissioner was whether the decisions by the decision-maker, that the five disciplinary allegations were substantiated, were fair and reasonable.

• [27] In Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital),[22] Gleeson JA relevantly stated:

1. The circumstances in which actual bias can be demonstrated solely from the published reasons for decision are considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J), approved in Toth v State of New South Wales [2022] NSWCA 185 at [46]; Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [47]. See also Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [74]. This is not an exceptional case. The credit and demeanour findings by his Honour do not provide any basis for a conclusion that the judge was not open to persuasion on any issue to be decided at the trial.

• [28] In one of the cases referred to by Gleeson JA, SCAA v Minister for Immigration and Multicultural & Indigenous Affairs,[23] von Doussa J relevantly stated:
  1. In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

[29] On a plain reading of the Primary Decision, the Industrial Commissioner preferred the Department's submissions to those of Ms Horton's because the Department's submissions were backed by cogent evidence that led to the Industrial Commissioner's conclusions that the decisions by the decision-maker, that the first four of the disciplinary allegations were substantiated, were fair and reasonable.[24]

• [30] The hearing before the Industrial Commissioner was on the papers. There is nothing exceptional about the Industrial Commissioner, having regard to the evidence to which reference was made in the reasons in the Primary Decision, preferring the Department's submissions. The mere acceptance by the Industrial Commissioner of the Department's submissions cannot support a conclusion that the Industrial Commissioner was not open to persuasion on any issue to be decided in Ms Horton's appeal under the PS Act.[25]

• [31] In addition, for the reasons given below in respect of the remaining three grounds of appeal, none of the errors of law that Ms Horton contends affect the Primary Decision are made out. There is no basis to conclude that the Industrial Commissioner did not take into account all relevant considerations in determining whether the decision-maker's decisions were fair and reasonable.

• [32] Ms Horton does not address the fact that the Industrial Commissioner found that the decision-maker's conclusion, that the fifth disciplinary allegation was substantiated, was not fair and reasonable. It is difficult to accept Ms Horton's contention that the Industrial Commissioner was actually biased against her when the Industrial Commissioner found that the decision-maker's decision, that the fifth disciplinary allegation was substantiated, was not fair and reasonable.

• [33] This matter is not one that forms a basis to conclude that the Industrial Commissioner was actually biased.

• [34] The Industrial Commissioner did not, at paragraph [29] of the Primary Decision, concur with the submissions of the Department. What the Industrial Commissioner recorded in paragraph [29] of the Primary Decision was the decision-maker's response to one of a number of submissions made by Ms Horton to the decision-maker as part of the internal Departmental disciplinary process. At paragraph [30] of the Primary Decision, the Industrial Commissioner did state that the decision-maker's response to Ms Horton's general submissions made to the decision-maker, as part of the internal Departmental disciplinary process (set out in paragraphs [26] to [29] of the Primary Decision) was fair and reasonable.

• [35] However, on the authorities referred to under the previous sub-heading, the fact that the Industrial Commissioner found that the Department's response was fair and reasonable cannot, on its own, lead to a conclusion that the Industrial Commissioner had embarked on the whole of Ms Horton's appeal with a closed mind and that the Industrial Commissioner was not open to persuasion.

• [36] The fact that the ESU commenced an investigation after conducting preliminary enquiries into Ms Horton's alleged conduct, which led to the identification of further allegations, cannot logically result in a conclusion that Ms Horton was denied procedural fairness. This is because Ms Horton does not suggest that once the further allegations were in fact made against her, she was then denied the right to be heard in respect of those allegations.

• [37] Further, the allegations Ms Horton makes from the Industrial Commissioner's acceptance of the Department's response as contained in paragraph [29] of the Primary Decision - that the Industrial Commissioner turned a blind eye to her (Ms Horton) not receiving procedural fairness, that the Industrial Commissioner overlooked a breach of the relevant Directive, and that the Industrial Commissioner ignored the violation of the PS Act and of '... employment law, directives, policies and procedures' - are speculative and made with a high degree of generality. Ms Horton does not particularise the alleged contraventions of the PS Act or any other contraventions of relevant instruments or of the general law.

• [38] This matter is not one that forms a basis to conclude that the Industrial Commissioner was actually biased.

• [39] The submission made by Ms Horton about paragraph [44] of the Primary Decision is one without any foundation in fact. For the reasons given in paragraphs [109] to [114] of these reasons, the Industrial Commissioner's summary of the email exchange between Mr Thompson and Ms Horton was entirely accurate.

• [40] This matter is not one that forms a basis to conclude that the Industrial Commissioner was actually biased.

• [41] Ms Horton accuses the Industrial Commissioner of protecting a particular public service officer from being associated with allegations of misconduct because the Industrial Commissioner did not refer to that public service officer by name in the published reasons.

• [42] In paragraph [100] of the Primary Decision, the Industrial Commissioner was recording serious allegations of misconduct, made by Ms Horton in her submissions, against the public service officer, in circumstances where the public service officer was not a party to the appeal and was not able to be heard in respect of those serious allegations. In those circumstances, it is entirely unsurprising that the Industrial Commissioner did not refer to that public service officer by name.

• [43] In any event, on the authorities referred to under the first sub-heading, the mere fact that the Industrial Commissioner exercised discretion not to name that public service officer in the published reasons, cannot logically give rise to a conclusion that the Industrial Commissioner had prejudged the whole of the case against Ms Horton.

• [44] This matter is not one that forms a basis to conclude that the Industrial Commissioner was actually biased.

• [45] Ms Horton's submission about this matter is entirely without any foundation. This is for two reasons.

• [46] First, Ms Horton misrepresents the Industrial Commissioner's reasons in paragraph [107] of the Primary Decision. The Industrial Commissioner did not state that Ms Horton was misguided. The Industrial Commissioner stated that Ms Horton's '...submission is entirely misguided.'

• [47] Secondly, the reason why the Industrial Commissioner concluded that Ms Horton's submission was entirely misguided was, with respect, correct.

• [48] In the Primary Decision, the Industrial Commissioner relevantly stated:

• [107] The Appellant contends that the QHRC "agrees" with her that the decision involves evidence of victimisation against the Appellant. The evidence that reprisals have been taken against her is, according to the Appellant, the referral of her complaint to this Commission. This submission is entirely misguided. Matters are referred to the Commission from the QHRC without judgement as to the prospective merits of the claim. The only assessment conducted by the QHRC for a matter of this type is whether the allegation can be characterised as being capable of contravening the Anti-Discrimination Act if the facts in matter are proven. Any judgement as to the merits of a claim of victimisation is then made by this Commission after a formal legal process.

• [49] Complaints that a reprisal has been taken against a person, because a person has made a public interest disclosure under the Public Interest Disclosure Act 2010 ('the PID Act'), may be made under the Anti-Discrimination Act 1991 ('the AD Act').[26] By s 44(2) of the PID Act, such a complaint may be dealt with under chapters 6 and 7 of the AD Act '... as if the complaint were about an alleged contravention of ' the AD Act.

• [50] Under ch 7, pt 1 of the AD Act, such complaints are made to the Queensland Human Rights Commissioner ('the Human Rights Commissioner'). Section 139 of the AD Act provides that the Human Rights Commissioner must reject a complaint if the Commissioner is of the reasonable opinion that the complaint is frivolous, trivial or vexatious, or is misconceived or lacking in substance. Pursuant to s 141(1) of the AD Act, the Commissioner must decide whether to accept or reject a complaint within 28 days of receiving the complaint.

• [51] Chapter 7, pt 1 div 3 of the AD Act deals with the conciliation process by the Human Rights Commissioner. Section 158 of the AD Act provides that if the Human Rights Commissioner believes that a complaint may be resolved by conciliation, the Human Rights Commissioner must try to resolve it in that way. Chapter 7, pt 1, div 4 of the AD Act deals with unconciliated complaints and for the referral of unconciliated work-related complaints to the Queensland Industrial Relations Commission. Chapter 7, pt 2 of the AD Act sets out the functions and powers of the Queensland Industrial Relations Commission in respect of such a complaint.

• [52] No determination is made by the Human Rights Commissioner, at any point, about whether there has in fact been any contravention of the PID Act. Further, there is no provision in the AD Act that provides any support for the conclusion that the acceptance of a complaint about an alleged reprisal under the PID Act, or the referral by the Human Rights Commissioner of such a complaint to the Queensland Industrial Relations Commission, is evidence that there has been a contravention of the PID Act. Whether there has been a work-related contravention of the PID Act is a matter that is ultimately determined by the Queensland Industrial Relations Commission following an adversarial hearing and determination of such a complaint.

• [53] For these reasons, the Industrial Commissioner's characterisation of Ms Horton's submission as ' ... entirely misguided' was entirely correct.

• [54] Furthermore, the inference Ms Horton seeks to draw as a basis for her contention that the Industrial Commissioner was actually biased against her - that the Industrial Commissioner was '...annoyed' she had made the submission - is not one that is open to be drawn. The Industrial Commissioner was, very properly, responding to a submission that Ms Horton had made as part of her case that the substantiated disciplinary allegations were not fair and reasonable. To conclude that a submission is '...entirely misguided' is an accurate, and not inappropriate, way for a court or tribunal to characterise a submission that is misconceived.

• [55] Ms Horton seemed to faintly argue,[27] for the same reasons she advanced that there was actual bias on the part of the Industrial Commissioner, that there was an apprehension of bias on the part of the Industrial Commissioner. That argument must fail. For the same reasons I have given in respect of the allegation that the Industrial Commissioner was actually biased, there is no evidence that a fair-minded lay observer might reasonably apprehend that the Industrial Commissioner might not bring an impartial mind to the resolution of the questions the Industrial Commissioner was required to decide.

• [56] This matter is not one that forms a basis to conclude that the Industrial Commissioner was actually biased.

• [58] By the first ground of appeal, Ms Horton contends that the Industrial Commissioner erred in law in that the Industrial Commissioner ignored relevant considerations, namely s 45 and s 46(1) of the District Court of Queensland Act 1967.

• the Industrial Commissioner was bound to take into consideration relevant legislation associated with her appeal under the PS Act and, in applying relevant legislation, '...this could have dismissed the allegations of misconduct against the appellant';[28] and

• the Industrial Commissioner erred in law in not applying the District Court of Queensland Act 1967, under which she was appointed as a bailiff, in particular s 45 and s 46 of that Act.[29]

• [60] Sections 45 and 46 of the District Court of Queensland Act 1967 provide:

(1) A bailiff shall be paid a salary on account of the bailiff's general duties, and shall also be entitled to receive and retain for the bailiff's own use the fees prescribed as bailiffs' fees, unless a judge in any case otherwise orders.

(2) The bailiff shall, out of such fees, provide for the performance of the duties for which the fees are allowed.

(3) The fees received for enforcing an enforcement warrant must be paid by the registrar to the bailiff on the issue of the enforcement warrant.

1. Bailiff answerable for escape and neglect to levy execution

(1) If a bailiff who is directed to levy execution loses by neglect, connivance, or omission, the opportunity of levying the execution, a judge may, upon complaint of the party aggrieved, inquire into the matter in a summary way, and for that purpose may summon and enforce the attendance of the necessary parties in the same manner in which the attendance of witnesses in an action may be enforced, and may order the bailiff to pay such damages as it appears that the plaintiff has sustained, not exceeding in any case the sum of money for which the execution was issued, and the bailiff shall be liable to pay the same.

(2) Upon demand made, and on the bailiff's refusal to pay and satisfy the damages, payment may be enforced in the manner provided by this Act.

• [61] Ms Horton contends that the alleged omission to refer to these provisions concerned the second disciplinary finding against her.

• [62] By virtue of s 562B(3) of the IR Act, the issue before the Industrial Commissioner was whether the conclusions reached by the decision-maker, that the five disciplinary allegations were substantiated, were fair and reasonable. The Industrial Commissioner determined that the first four substantiated disciplinary allegations were fair and reasonable but the fifth substantiated disciplinary allegation was not.

• [63] The second disciplinary finding, which the Industrial Commissioner found to be fair and reasonable within the meaning of s 562B(3) of the IR Act, was that between 13 April 2022 and 22 April 2022, Ms Horton failed to comply with a lawful written direction issued by the Deputy Principal Registrar and Sheriff of Queensland ('the Sheriff') - not to perform any enforcement officer or bailiff duties on behalf of the Department whilst under alternative work arrangements - by continuing to engage in arrangements for an eviction scheduled for 23 April 2022 ('the Sheriff's Direction').

• [64] There is no dispute that the direction to Ms Horton by the Sheriff (Ms Amanda O'Brien), the subject of the second disciplinary finding, was given on 4 April 2022.[30]

• the Sherrif provided her with a warrant of execution which she (Ms Horton) served on 30 March 2022 which was before the direction given to her by the Sheriff of Queensland on 4 April 2022;[31]

• the direction given to her by the Sheriff on 4 April 2022 did not give any direction about the warrant already in progress;[32]

• the effect of s 46(1) of the District Court of Queensland Act 1967 is that she was under a legal obligation to execute the warrant;[33]

• s 45(3) of the District Court of Queensland Act 1967 provides that the Department was legally required to pay her upon enforcement of the warrant;[34]

• the Sherrif did not remove the warrant from her and delegate it to another bailiff, and the Sheriff did not ask for the warrant to be returned;[35] and

• she was legally required to execute the warrant.[36]

• [66] Ms Horton then submits that the failure of the Industrial Commissioner to take into consideration s 45(3) and s 46(1) of the District Court of Queensland Act 1967 meant that in the Primary Decision:

• the Industrial Commissioner, at paragraph [43] of the Primary Decision, was wrong to accept the Department's submission that it was reasonable that she (Ms Horton) should have sought clarification from the Sheriff;[37]

• the Industrial Commissioner drew '...the wrong inference' in paragraph [47] of the Primary Decision by concluding that her failure to take any steps, to advise that the eviction was proceeding and needed to be reallocated, was sufficient evidence she intended to engage in attending the eviction;[38]

• the Industrial Commissioner's finding in paragraph [48] of the Primary Decision - that the email from Ms Horton to Ms Kristine Gillespie, Acting Deputy Senior Registrar (in which Ms Horton stated that she would not do the eviction if she was not going to be paid for doing it) did not indicate that she was confused as to her obligations - was wrong in that the Industrial Commissioner inferred that she (Ms Horton) only had one obligation to consider and, further, the Industrial Commissioner misunderstood the legalities of her situation;[39] and

• the Industrial Commissioner erred by concluding at paragraph [49] of the Primary Decision, that the Sheriff's direction was unambiguous, because she (Ms Horton) was legally required to hold the warrant, a fact of which the Industrial Commissioner was unaware.[40]

• this ground of appeal should not be entertained by the Court because Ms Horton has never raised the argument, the subject of this ground of appeal, either before the Departmental decision-maker or before the Industrial Commissioner;[41] and

• Ms Horton's argument that s 46(1) of the District Court of Queensland Act 1967 is the source of her legal obligation to execute a warrant is wrong because that section creates a cause of action that a party may pursue for loss resulting from the conduct of a bailiff.[42]

• [68] Ms Horton's submissions cannot be accepted.

• [69] It is obvious from the Primary Decision that Ms Horton, when making her submissions to the Industrial Commissioner, did not argue what she now argues before this Court about s 46(1) of the District Court of Queensland Act 1967.

• [70] As Martin J, President stated in Irving v Blackwood (citations omitted):[43]

[14] The approach sought to be taken by the appellant before this Court is inconsistent with that which she took in the hearing before the Deputy President. As Hall P observed in the excerpt from Wallis v Q-Comp set out above, an appeal is not a second chance trial. It is about the correction of error.

**[15] A party which carefully and deliberately conducts its case on the basis that a particular issue is to be decided by the Commission will not be allowed (save in exceptional circumstances) to retreat from that position on appeal and seek to demonstrate that an error has been committed with respect to an issue which was not put before the Commission.

[16] This appeal is, of course, a rehearing but:**

"To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

[17] The inability of a party in an appeal to change the ground rules upon which the primary decision was given was summarised in University of Wollongong v Metwally (No 2) where six justices of the High Court said:

"[7] It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

[18] The appellant is bound by the way she conducted her case in the Commission. She cannot now depart from that and attempt to demonstrate an error on that basis.

• [71] In the present case, Ms Horton is bound by her conduct before the Industrial Commissioner. Ms Horton did not make the case about the purported effect of s 45(3) and s 46(1) of the District Court of Queensland Act 1967 to the Industrial Commissioner. Ms Horton has given no explanation why she did not raise the issue before the Industrial Commissioner.

• [72] For the reasons given by Martin J, President in Irving v Blackwood, Ms Horton will not be permitted to raise this new argument on appeal.

• [73] In any event, Ms Horton's submissions about the purported effect of s 45(3) and s 46(1) of the District Court of Queensland Act 1967 are wrong for the reasons submitted by the Department.

• [74] On the statutory text used in s 46(1) of the District Court of Queensland Act 1967, the purpose of that provision is clearly to confer power on a judge to order a bailiff to pay damages for loss resulting from the conduct of a bailiff. That provision does not create a legal obligation on the part of a bailiff to execute a warrant that has been served by the bailiff.

• [75] Section 45(3) of the District Court of Queensland Act 1967 provides that Ms Horton had an entitlement to receive the prescribed fees for enforcing an enforcement warrant. That provision does no more. Specifically, that provision does not support Ms Horton's argument about the purported effect of s 46(1) of the District Court of Queensland Act 1967. Ms Horton's arguments about the effect of these provisions are misconceived.

• [76] As a consequence, even if Ms Horton had made these arguments before the Industrial Commissioner, and the Industrial Commissioner dismissed those arguments, that could not result in a conclusion that the Industrial Commissioner's decision was affected by any error.

• [77] Further, Ms Horton has not applied for leave to argue such a new point. Even if such an application was made, where no adequate explanation is provided by an appellant in such circumstances, particularly where the new point is of doubtful merit, leave should generally be refused.[44]

• [79] In paragraph 10 of her written submissions, Ms Horton submits:
  1. The Commissioner ignored relevant evidence from the ESU investigation report, which stated in relation to the ambiguity of the Sheriffs [sic] letter "...it could be accepted that further specific information regarding the management of Enforcement Officer matters already in progress, may have assisted Ms Horton...", this conclusion was overlooked by the Commissioner as it supports the appellants [sic] position.
• [80] This submission cannot be accepted.

• [81] First, it has no relevance to the first ground of appeal_._

• [82] Secondly, Ms Horton does not state how such evidence has any relevance to the other errors of law she contends affects the Primary Decision. The particular part of the ESU investigation report, to which reference is made by Ms Horton in her submissions, is speculative opinion. Assuming the Industrial Commissioner did ignore that precise part of the ESU investigation report, she was correct to do so.

• [83] Thirdly, Ms Horton has selectively relied on a part of one paragraph of the ESU investigation report. The entire paragraph is:

Ms Horton did raise that she believes that Ms O'Brien "did not provide any instructions or directions as to how to deal with work that was already in progress" and "did not contact external parties to inform them of her decision. This failure in communication by Amanda O'Brien resulted in the external party being unaware of these changes as they carried out their own duties as expected. Part of their duties is to inform the E/O, who served the documents of the plans that have been made for the eviction, even if there may be a different E/O for the execution". Whilst it could be accepted that further specific information regarding the management of Enforcement Officer matters already in progress, may have assisted Ms Horton, it is considered that the direction provided to Ms Horton was a clear and lawful direction and Ms Horton was advised to contact Ms O'Brien via email with any questions.[45]

• [85] By the second ground of appeal, Ms Horton contends that the Industrial Commissioner erred in law in that there was no evidence to support certain facts found by the Industrial Commissioner.
• [86] The question of whether there is any evidence of a particular fact is a question of law. Likewise, the question of whether a particular inference can be drawn from facts found or agreed is a question of law. An error of law will occur where there was no evidence to support a finding of fact relevant to a decision.[46]

• [87] The question of whether evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish a fact, is itself a question of fact and not a question of law.[47] There is no error of law in simply making a wrong finding of fact.[48]

• [88] In cases where it can be demonstrated that there is an error of law in the decision appealed against, it must be shown that the error of law vitiates the decision.[49]

• [89] This ground of appeal concerns the first, second and fourth substantiated disciplinary allegations.

The first substantiated disciplinary allegation

• [90] The first substantiated disciplinary allegation was that on 24 April 2021, in relation to an enforcement warrant for the possession of land, Ms Horton failed to comply with the Police Action Plan completed by the Registrar (Ms Gillespie) in response to a red alert being advised by the Queensland Police Service because Ms Horton proceeded to attend the relevant house and speak with a male occupant.[50] The Industrial Commissioner found that the decision-maker's decision about this substantiated disciplinary allegation was fair and reasonable.[51]

• [91] In paragraph [37] of the Primary Decision, the Industrial Commissioner found:

[37] The decision maker also considered that even if the Appellant had not received the Action Plan, the Appellant, as a very experienced enforcement officer, ought to have known that she was not permitted to visit the property in the absence of a police officer and was only authorised to serve the warrant by placing it in the letterbox at the property in accordance [sic] cl 5.3 of the Department's procedure - Request Police Information Check and Allocate Warrant. This procedure provides that where a red alert has been received an enforcement officer "shall not proceed with the enforcement or visit the premises in the absence of at least one police officer and must comply with the plan devised".

• [92] Ms Horton alleges that in paragraph [37] of the Primary Decision, the Industrial Commissioner '... mistakenly applies the procedures for execution rather than a service' in that she '... was not conducting an execution just a service'.[52]

• [93] The Department submits that Ms Horton's argument cannot be accepted because she is effectively arguing that, despite the Police Action Plan, she was not bound by it when visiting the relevant residence because she was effecting service, not enforcing the warrant, and therefore was entitled to engage with residents of the property.[53]

• [94] Ms Horton's contention does not reveal any error of law.

• [95] The Departmental procedure concerning the issuing of police action plans is contained in the Appeal Record Book at pages 270-275. It was included in the material submitted by the Department to the Industrial Commissioner as part of Ms Horton's appeal under the PS Act. This document is headed 'Procedure - Request Police Information Check and Allocate Warrant' ('the Procedure'). The Procedure reflects the liaison between Court Services Queensland and the Queensland Police Service for the exchange of information so that the enforcement of warrants can be undertaken in a safe manner.

5.3.1 Where a RED assessment has been made by QPS, or if other information comes to hand that causes the registrar to hold concerns about the safety of any person should the enforcement process proceed, the registrar must:

• Place a highlighted RED ALERT notice on the front of the warrant to be used to record communication with QPS and, using the REQUEST FOR QPS ASSISTANCE FORM (DOCX, 557.9 KB), contact the police station relevant to the enforcement location to:
• Advise that a red assessment has been received;
• Request that a police officer be designated to collaborate in developing a suitable plan to execute the warrant to ensure the enforcement process can occur without compromising the safety of any person; and
• Document the plan on Request for Police Assistance-Action Plan (DOCX 557.9 KB) and provide the enforcement officer with a written copy of the plan.

NOTE: the plan should include the name and phone number of the appropriate QPS station and officer to contact if assistance should become necessary during the enforcement process.

Ensure the respective Regional Director/Deputy Principal Registrar is promptly informed and provided with all necessary information, including a copy of the plan.

The enforcement officer must comply with the provided action plan as devised.

NOTE: a plan that does not involve the presence of police officers at the execution of the warrant should not be accepted as satisfactory. The enforcement officer shall not proceed with the enforcement or visit the premises in the absence of at least one police officer and must comply with the plan devised.[54]

• [97] The relevant red alert Police Action Plan, the subject of this ground of appeal, is found at page 277 of the Appeal Record Book. It formed part of the material submitted by the Department at first instance. The terms of this Police Action Plan are unequivocal. The enforcement officer (Ms Horton) was authorised to serve the notice of eviction in the debtor's letterbox, but she would need to contact the Queensland Police Service and arrange for their attendance at the eviction.

• [98] As a consequence, there was evidence, namely, the Procedure as well as the Police Action Plan, upon which the Industrial Commissioner was able to make the finding of fact referred to in paragraph [37] of the Primary Decision. Indeed, the last sentence in paragraph [37] of the Primary Decision is a direct quote from the last sentence in of cl 5.3 of the Procedure.

• [99] The error of law as alleged is not made out.

The second substantiated disciplinary allegation

• [100] The second substantiated disciplinary allegation was that between 13 April 2022 and 22 April 2022, Ms Horton failed to comply with a lawful direction issued by the Sheriff, not to perform any enforcement officer or bailiff duties on behalf of the Department whilst under alternative work arrangements, by continuing to engage in arrangements for an eviction scheduled for 23 April 2022.

• [101] The Industrial Commissioner found that the decision-maker's decision about this substantiated disciplinary allegation was fair and reasonable.[55]

• [102] Three errors of law are said to have been made in respect of the Industrial Commissioner's determination that the decision about this substantiated disciplinary allegation was fair and reasonable.

• [103] In paragraph [41] of the Primary Decision, the Industrial Commissioner found:

• [41] The letter from Ms O'Brien to the Appellant dated 4 April 2022 advised that the Appellant was to undertake alternate work arrangements on and from 5 April 2022 and advised the following-

you are not authorised to perform any enforcement officer or bailiff duties on behalf of the department under these interim work arrangements.

• [104] Ms Horton alleges that the Industrial Commissioner '... erred in law by misinterpreting the Sheriffs [sic] 'lawful direction' letter,' in that because the letter referred to '... the department' she (Ms Horton) '... was still able to conduct bailiff duties in an independent capacity.'[56]

• [105] While this allegation is not about a finding of fact not being supported by evidence, it fails in any event.

• [106] As the Department correctly submits (footnotes omitted):[57]

1. Bailiffs are appointed for the State, by the chief executive, as an officer of the sheriff. Bailiffs appointed under the DCQ Act and SCQ Act are employed under the PS Act. The functions of a bailiff derive from statute; they are conferred by delegation of the Sheriff or under an Act. A particular function conferred on a bailiff is to 'execute enforcement warrants' which are made under s 90 of the Civil Proceedings Act 2011. A bailiff is an enforcement officer who is indemnified by the State when acting in that capacity; proceedings have to be started against 'The Sheriff of Queensland' and not the officer and any order made against the Sheriff must be paid by the Treasurer out of the consolidated fund. The structure of the DCQ Act and SCQ Act is consistent with the historical duties of a bailiff to assist the sheriff to enforce orders of the Court, as the Court is unable to enforce its own orders. That duty is 'ministerial'.

• [107] For these reasons, a person so appointed as a bailiff has no independent capacity to work as an enforcement officer or bailiff. The direction given by Ms O'Brien to Ms Horton, by letter dated 4 April 2022, was unequivocal and binding.

• [108] The error of law as alleged is not made out.

• [109] In paragraph [44] of the Primary Decision, the Industrial Commissioner held:

[44] The decision maker considered an email exchange between the Appellant and a Mr Thompson, who was a creditor's agent, in relation to the eviction on 13 April 2022 in which the Appellant responded, "sounds good" to Mr Thompsons's statement, "I'll see you at the property on the morning of 23 April (8.30am)". I accept that the Appellant's actions in liaising with Mr Thompson and confirming approval of the eviction arrangements were enforcement officer duties.

[T]here is no documented 'cogent evidence' which shows that the appellant bailiff said in an email on the (13/4/22) that "Ill [sic] see you at the property on the morning of the 23 April (8:30).'[58]

• [111] The Department submits that paragraph [44] of the Primary Decision, in respect of the email to which reference is made, does not attribute those words, or the email, to Ms Horton but to Mr Thompson.[59]

• [112] The Department's submissions are clearly correct. On the text used in paragraph [44] of the Primary Decision, the reference to seeing '... you at the property on the morning of the 23 April (8:30)' is clearly and unmistakably attributed to Mr Thompson by the Industrial Commissioner.

• [113] Furthermore, the actual email exchange between Mr Thompson and Ms Horton is contained in the Appeal Record Book at page 481. The Industrial Commissioner's summary of the email exchange between Mr Thompson and Ms Horton is entirely accurate.

• [114] The error of law as alleged is not made out.

• [115] Ms Horton submits:
  1. Issue: The Commissioner has erred in law by accepting allegation two (2) evidence despite there being no evidence, that the appellant did from the 13 April 2022 and 22 April 2022 (ten days) "...was continuing to engage in arrangements for an eviction...for 23 April 2022", No documented, oral or other evidence was provided to the Commissioner to satisfy this allegation. The Commissioners [sic] finding is unreasonable and unfair and the decision is an error of law.
• [116] The Industrial Commissioner clearly sets out the evidence upon which she concluded that the substantiation by the decision-maker of the second disciplinary allegation was fair and reasonable.

• [117] Firstly, the Industrial Commissioner referred to Ms Horton's response to Mr Thompson's email sent on 13 April 2022, as referred to in paragraph [44] of the Primary Decision.[60]

• [118] Secondly, in paragraphs [45] and [46] of the Primary Decision, the Industrial Commissioner referred to the email exchange between Ms Horton and Ms Gillespie on 22 April 2022, namely:

• [45] The decision maker also considered an email sent to the Appellant from Ms Gillespie, A/Deputy Senior Registrar, on 22 April 2022 -

Thanks Jan. With the one scheduled tomorrow [23 April 2022], I was of the understanding that you were not currently authorised to perform enforcement officer duties. Are you intending on doing this one yourself or have you asked another EO to do it for you?

• [46] The Appellant provided the following response to Ms Gillespie's email-

This eviction was scheduled before the questionable action made by Amanda O'Brien which has been reported ... I will be doing this eviction myself however, if I am not going to get paid I am not doing it.

• [119] The Industrial Commissioner, having regard to this evidence, then decided:

• [47] The email exchanges outlined above and the failure of the Appellant to take any steps to advise the Registry that the eviction was proceeding and needed to be reallocated was sufficient evidence that the Appellant intended to engage in enforcement officer duties by attending the eviction on 23 April 2022.

• [48] The email from the Appellant to Ms Gillespie did not indicate that the Appellant was 'confused' as to her obligations, rather, it clearly stated that the Appellant would be attending the eviction unless she was not going to be paid for it.

• [49] The direction to undertake alternate work arrangements and the confirmation that the Appellant was not authorised to perform any enforcement officer of [sic] bailiff duties was unambiguous. It was reasonable for the decision maker to determine that the Appellant failed to comply with Ms O'Brien's direction not to perform any enforcement officer of [sic] bailiff duties and this conduct was insubordinate and inappropriate.

• [120] The evidence upon which the Industrial Commissioner found that the decision-maker's substantiation of the second disciplinary allegation was fair and reasonable is set out in the Primary Decision. There clearly was evidence upon which the Industrial Commissioner found that Ms Horton failed to comply with the relevant direction not to perform any enforcement officer or bailiff duties.

1. The Commissioner in agreeance with the respondents [sic] breaches the (Wednesbury) rule with an irrational decision based upon the email of (13/4/22) see (append:4). The appellant being found at fault for actions outside of the appellants [sic] control, see below

(a) The appellant whilst undertaking administration duties did upon receipt of the unexpected email reply to email as is the duty. The appellant in replying to the email had breached the Sheriffs direction, by participating in enforcement duties. There are no policies or procedures related to receiving emails for employees who have dual roles.

(b) The appellant in receiving an unexpected email and replying "...the Appellants actions in liaising with Mr. Thomson and confirming approval of the eviction arrangements were enforcement officer duties". The Commissioner was provided with no evidence of liaising with Mr. Thompson. There was no conversation nor exchanging of information, and the appellant did not confirm approval of eviction arrangements.

• [122] The task of a court, where it is alleged a decision is legally unreasonable, is to ask whether the exercise of power by the decision maker was beyond power because it was legally unreasonable.[61] An error which alleges legal unreasonableness requires the meeting of a stringent test.[62] In Minister for Immigration and Citizenship v Li,[63] Hayne, Kiefel and Bell JJ relevantly stated (citations omitted):

[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

• [124] It cannot be said that the Industrial Commissioner's decision, in respect of the second substantiated disciplinary allegation, lacks an evident and intelligible justification. This is because:

• the Industrial Commissioner, in coming to her conclusion about the second substantiated disciplinary allegation, had regard to the content of Ms Horton's email communications with Mr Thompson (as set out in paragraph [44] of the Primary Decision) and with Ms Gillespie (as set out in paragraphs [45] and [46] of the Primary Decision);

• those email communications were of such a nature that it was open to the Industrial Commissioner to conclude that Ms Horton was continuing to engage in arrangements for the eviction scheduled for 23 April 2022, because they contained:

• - Ms Horton's response to Mr Thompson of '... sounds good' in response to his prior statement that he would see her at the property at 8:30 am on the morning of 23 April; and

• - Ms Horton's response to Ms Gillespie that the eviction was scheduled before Ms O'Brien's direction (given on 4 April 2022 which was that Ms Horton was not authorised to perform any enforcement officer or bailiff duties on behalf of the Department) and that she (Ms Horton) would be doing the eviction herself; and

• it was the content of those email communications that led to the Industrial Commissioner coming to the conclusion that the substantiation of the second disciplinary allegation was fair and reasonable.

• [125] The error of law as alleged is not made out.

The fourth substantiated disciplinary allegation

• [126] The fourth substantiated disciplinary allegation was that on 5 November 2018, 21 October 2019, 4 August 2020, 10 March 2022 and 17 March 2022, Ms Horton sent inappropriate emails to her colleagues.

• [127] The Industrial Commissioner found that the decision-maker's decision about this substantiated disciplinary allegation was fair and reasonable.[64]

• [128] Ms Horton submits:
  1. Issue: The Commissioner has erred in law by not considering the lack of 'due process' within allegation four, the four (4) emails. Thus, the Commissioner substantiated the emails as documented 'cogent evidence' of misconduct. The Commissioner overlooked that the emails all relate to enforcement work and deal with addressing issues of concern and misconduct within enforcement and with enforcement managers. The Commissioner does not afford the appellant the right to question her employees on identified wrong doings, without being accused of misconduct. The content of the emails as misconduct is overstated. The Commissioners [sic] unreasonableness is an error of law in consideration of the (Associated Provincial Picture Houses Ltd v Wednesbury Corp) case by not considering the context in which the emails were made, and if had could have made a more logical decision.

• the issue with the subject emails has always been with the disrespectful, unprofessional tone and language used, not Ms Horton's right to communicate with colleagues and managers about matters; a matter of which the Commissioner was squarely conscious in her review of whether it was 'fair and reasonable' for the decision-maker to substantiate this allegation;[65]and

• it was open for the Industrial Commissioner to determine that the decision-maker's finding that this allegation amounted to misconduct within the meaning of s 91(5)(a) of the PS Act was 'reasonable,' particularly where, at paragraph [93] of the Primary Decision, the Industrial Commissioner properly identified the relevant interpretation of the term 'misconduct' and in doing so accepted that the conduct could be characterised as '... a deliberate departure from accepted standards.'[66]

• [130] Ms Horton's submissions cannot be accepted.

• [131] There was no dispute that Ms Horton sent the emails that are the subject of this substantiated allegation.[67]

• [132] The content of the emails sent by Ms Horton, the subject of this substantiated allegation, are set out in the Primary Decision.

• [133] The first email is contained in paragraphs [57] and [58] of the Primary Decision:

• [57] The email in allegation 4(a) was sent by the Appellant in response to an email from Ms Adams in which she stated "Please do not engage or harass members of the enforcements team in regard to how they are discharging the duties of their role".

But dont accuse me of harassment, as I have not spoken to the Enforcement team for 7 days, and the only time I spoke to them, was to inform them that they have made a mistake in not legally providing us with documents we have a legal right to serve. You need to bring this up with the Attorney General, if what I told them was incorrect.

You forget that we are a part of the enforcement team, where is your support for team members who have basically had their rights and incomes illegally stolen from them. Look up what harassment is, merely pointing out a mistake by co-workers is not harassment. Don't let your hate of me, cloud the truth of what has been done.

Additionally, I would not see it as appropriate to communicate any queries with Linda [Gardner, Registrar Applications]. Remember this is the person who has taken it upon herself to "take money from our pocket" do you realise how serious this is.

• [134] The second email is contained in paragraph [64] of the Primary Decision:

• [64] The email referred to in allegation 4(b) was sent by the Appellant to Ms O'Brien, Acting Deputy Principal Registrar and Sheriff of Queensland. The email is as follows -

If it is not my turn, please do not allocate the next Arrest Warrant to myself ... To give an EO consecutive Arrest Warrants would be unjust. For the past 13 years that I have been serving these, this has always been the practice. Who decided that this was to change? ... To allocate another Arrest warrant to myself without others having had their turn, would be to act unethically and discriminatory towards myself. When the other E/Os have had their turn at enforcing an Arrest Warrant, then I will take my turn with Arrest Warrants as per normal.

• [135] The third email is contained in paragraph [69] of the Primary Decision:

• [69] The email referred to in allegation 4(c) was sent by the Appellant to Ms Adams, Senior Registrar and Sheriff of Queensland. In response to an email from Ms Adams advising that a component of a claim for payment made by the Appellant would not be paid while that claim was subject to further review, the Appellant sent the following email -

There was no additional time after the locksmith had left, the Locksmith, agent and myself all left at the same time. What are you talking about. This is illegal and I will take further action.

• [136] The two further emails, the subject of this substantiated disciplinary allegation, are contained in paragraphs [74] and [75] of the Primary Decision:

• [74] Allegation 4(d) refers to emails sent by the Appellant to Mr Davies outlined below -

... the ATO informs me that whilst it can be timely, I should be hearing something from DJAG now. We need dates. Also E/Os have informed me that they are not prepared to accept a five year back payment. We want all of our unpaid superannuation not just five years.

The Audit exposed the error and management from Julie Steel down proceeded to cover it up ... The lack of transparency and accountable as it has been hidden by management. Qld E/Os have been exploited by the Department and I believe it is time the Integrity commission is also informed. We need to be shown some respect and we want action now not in several years.

• [75] Mr Davies sent an email to the Appellant reminding her of the obligation under the Code of Conduct to be respectful in her correspondence with him. The Appellant responded to Mr Davies with the following email -

... I said that the audit report findings of 2019 were covered up, not this investigation. When the department refused to acknowledge the error and answer questions about the unpaid fees - what would you call this? It definitely was not transparency and accountability. I have sought information from a number of external sources as to the departments activities and they are of the same opinion ... My conduct towards you and others has been respectful, provided me with evidence that I was not respectful to you. Where in the below email [a reference to the email above at [75]] has this been dis-respectful...

• [137] The Industrial Commissioner decided that the decision by the decision-maker - that the emails were disrespectful and unprofessional and that some contained offensive and, or in the alternative, derogatory comments about the Department and its management team - was fair and reasonable.[68] Having regard to the content of the emails, it cannot be said that the Industrial Commissioner's decision was one which lacks an evident and intelligible justification.

• [138] By their terms, the first, second and third emails, and the second of the further emails, were disrespectful and unprofessional. The last paragraph of the first email did contain derogatory comments about a member of the management team. The first of the further emails did contain offensive and derogatory comments about the Department and a member of the management team.

• [139] In any event, as the Department submits, the task which the Industrial Commissioner had to undertake was whether or not it was fair and reasonable for the decision-maker to come to the conclusion that was reached about the content of the emails. The decision-maker's determination was not about Ms Horton's right to question others and raise issues of alleged misconduct. As a consequence, it was not the task of the Industrial Commissioner to review the decision in that respect. The argument Ms Horton makes on appeal to this Court, and the correct question to which the Industrial Commissioner had to turn her mind in determining Ms Horton's appeal, are two different things.

• [140] The error of law as alleged is not made out.

• [142] By the third ground of appeal, Ms Horton contends that the Industrial Commissioner erred in law by ignoring relevant evidence submitted by her.

• [143] Ms Horton begins by referring to paragraph [28] of the Primary Decision where the Industrial Commissioner stated:

• [28] The Appellant raised allegations regarding the motives for complainants, alleging that people have colluded to make false allegations against her. The Appellant repeats these allegations in her written submissions, contending that the Department's disciplinary process is "in retaliation" to the Appellant's previous complaints to the Respondent and external agencies. It was reasonable for the decision maker to not accept these submissions, noting that the evidence in relation to the allegations is entirely documentary and the findings were made on the basis of cogent evidence regardless of the motivations of other employees. At no stage did the Appellant contend that the conduct did not occur as alleged, rather, she challenged the disciplinary findings. In these circumstances it was open to the decision maker to dismiss the allegations regarding motivations of other employees.[69]

• [144] In her submissions, Ms Horton referred to the emphasised part of the above paragraph of the Primary Decision and then submitted:

• the Industrial Commissioner put too much faith in the Department's '... alleged documentary 'cogent evidence', to the exclusion of other relevant evidence' which resulted in the Industrial Commissioner disregarding her (Ms Horton's) evidence of '...'motivation', and inconsistencies in the treatment of employees, which underlies the allegations of misconduct made against the appellant'; and

• had the Industrial Commissioner considered the evidence of the (alleged) motivation behind the allegations, '... it could have had an impact upon the decisions made'.[70]

• [145] Then, at paragraph 31 of her submissions, Ms Horton submits:
  1. The Commissioner made an unfair decision in not considering motive evidence which could had it been accepted, rationally affected directly or indirectly, the Commissioners [sic] assessment within the review process. As the appellants [sic] evidence of untoward 'motivation' for the allegations is not "speculation" para: 98. and it is not 'far reaching' to conclude that it is more than likely the respondents [sic] attempt to end the appellants employment.
• [146] In paragraphs 34 to 41 of her submissions, Ms Horton refers to '...evidence of probative value'[71] that supports her contention about the alleged retaliation behind the disciplinary allegations made against her. In summary, Ms Horton alleges that what motivated the relevant Departmental persons to make the (alleged) vexatious allegations against her was:

• the successful legal action taken by her in the Queensland Civil and Administrative Tribunal and in the Queensland Industrial Relations Commission, and other action taken by her to the Australian Tax Office against the Department, concerning bailiffs' unpaid wages and superannuation benefits;[72]

• the complaints made by her to the ESU about the alleged misconduct of Enforcement Managers, alleged bullying, alleged wage theft and alleged unfair managerial decisions being made, which were never acted upon by the Acting Executive Director of the ESU;[73]

• the fact that the persons who made the present disciplinary allegations against her were the same people who have made other allegations against her that were not substantiated;[74] and

• that other (unnamed) bailiffs have not been treated the same way as her for speaking to persons '...on a red alert service'.[75]

• [147] As stated in Horton No. 1, in an appeal against a decision such as the Primary Decision, the deferential standard of appellate review, as espoused in House v The King,[76] is applied.[77]

• [148] In terms of what makes a consideration relevant in respect of the application of the deferential standard of appellate review, the applicable principles were recently summarised by Perry J in Ramsay Health Care Australia Limited v President, Australian Human Rights Commission:[78]
  1. With respect to the principles governing relevant considerations, it was not in issue that a failure to have regard to a relevant consideration, or the taking into account of an irrelevant consideration, which affects the exercise of power is an error of law and gives rise to jurisdictional error: see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J); and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (McHugh, Gummow and Hayne JJ). Whether or not a consideration is a relevant or irrelevant consideration, in this sense, turns upon the proper construction of the provision in question. To answer this question, it is necessary "to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93] (McHugh, Gummow, Kirby and Hayne JJ) (quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24).
  2. Similarly, Kiefel and Bennett JJ explained in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [71] that:

A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act ...

(Emphasis added.)

• [149] Further, a tribunal may fall into jurisdictional error by failing to consider particular documents and other evidence, depending on their importance to the exercise of the tribunal's function and the seriousness of any error.[79] Similarly, the failure of a tribunal to respond to a substantial, clearly articulated argument relying upon established facts would amount to a failure to accord an applicant natural justice or could amount to a constructive failure to exercise jurisdiction.[80]

• [150] As the Department correctly submits,[81] these arguments to which Ms Horton refers were not overlooked by the Industrial Commissioner at all. The Department refers[82] to paragraph [98] of the Primary Decision, where the Industrial Commissioner gave reasons for rejecting Ms Horton's retaliation contentions:

• [98] The Appellant submits that the Department's disciplinary process has been undertaken "in retaliation" to the Appellant's previous complaints to the Respondent and external agencies. The Appellant submits that complaints were vexatious, and the "origins" of the complaints were not investigated, annexing an appendix about past "vexatious allegations". This decision does not relate to allegations made by the Appellant against other employees. If the Appellant is of the view that the ESU did not act appropriately regarding her complaints, there are other processes that can be pursued to review that decision. As outlined in this decision, the evidence in relation to the allegations is entirely documentary. Speculation as to the motivations of other employees does not displace the existence of cogent evidence supporting the substantiation of the allegations. The allegations were substantiated in a fair and reasonable decision, with the exception of Allegation 5. There is no dispute that the Appellant sent the emails upon which Allegation 5 was based, with my finding relating solely to the characterisation of the conduct. I do not consider this or any of the allegations to be vexatious in nature.

• [151] From paragraphs [28] and [98] of the Primary Decision, three matters may be confidently asserted.

• [152] First, having regard to s 562B(3) of the IR Act, the Industrial Commissioner correctly identified the task that she had to perform, namely, to determine whether or not the decisions of the decision-maker, that the five disciplinary allegations were substantiated, were fair and reasonable.

• [153] Secondly, to undertake that task, the Industrial Commissioner correctly took into account the cogency of the documentary evidence upon which the decision-maker concluded that the five disciplinary allegations were substantiated.

• [154] Thirdly, while the Industrial Commissioner considered Ms Horton's argument about the alleged motivations behind the disciplinary allegations being made against her, the Industrial Commissioner was correct to ignore the speculative basis upon which Ms Horton made that argument. The Industrial Commissioner correctly contrasted the speculative basis upon which Ms Horton made that argument with the cogency of the documentary evidence upon which the five disciplinary allegations were found to be substantiated.

• [155] For these reasons, the Industrial Commissioner's approach to Ms Horton's claims about the motivations behind the disciplinary allegations, reveals no error of law and no jurisdictional error.

• [157] Ms Horton did file further written submissions, however, contrary to the Directions Order made by the Court, those submissions were not in reply to the Department's written submissions. Further, those submissions raised new arguments, which were not addressed by Ms Horton in her oral submissions to the Court, or, addressed the same matters as contained in her principal written submissions and in her oral submissions.

• [158] For the reasons I have given, Ms Horton's appeal is dismissed.

Pursuant to s 558(1)(a) of the Industrial Relations Act 2016, the Appellant's appeal against the decision of the Queensland Industrial Relations Commission dated 27 November 2024 in Case No. PSA/2023/192, is dismissed.

[1] [2025] ICQ 007 ('Horton No. 1.').

[2] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, [117] (Kirby and Crennan JJ), [2] (Gummow ACJ) and [179] (Callinan J), Mohareb v State of New South Wales (No 2) [2024] NSWCA 69, [6] (Gleeson and Stern JJA) and M v Secretary, Department of Communities and Justice [2024] NSWCA 283, [92]-[95] (Basten AJA).

[3] The written submissions of Ms Jan Horton filed on 17 December 2024 ('Ms Horton's submissions'), para. 44.

[4] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, [3]-[6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J at [38] agreeing).

[5] Rangiah, Charlesworth and Banks-Smith JJ.

[6] [2022] FCAFC 169; (2022) 294 FCR 346.

[7] Mohareb v State of New South Wales (No 2) [2024] NSWCA 69, [8] (Gleeson and Stern JJA).

[8] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, [69] (Gleeson CJ and Gummow J) and [127] Kirby J.

[9] [2025] NSWCA 123.

[10] [2011] HCA 48; (2011) 244 CLR 427.

[12] Ms Horton's submissions, paras. 49-50.

[13] Ms Horton's submissions, para. 51.

[14] Ms Horton's submissions, para. 52.

[15] Ms Horton's submissions, para. 53.

[16] Ms Horton's submissions, para. 54.

[17] Ms Horton's submissions, para. 56.

[18] Ms Horton's submissions, para. 55.

[19] Ms Horton's submissions, para. 57.

[21] The written submissions of the State of Queensland through the Department of Justice and Attorney-General filed on 27 March 2025 ('the Department's submissions'), para. 51.

[22] [2023] NSWCA 288.

[23] [2002] FCA 668.

[24] Horton v State of Queensland (Department of Justice and Attorney-General) [2024] QIRC 278 ('The Primary Decision'):

• in respect of the first substantiated disciplinary allegation, paras. [31]-[40], in particular paras. [33], [34] and [37];
• in respect of the second substantiated disciplinary allegation, paras. [41]-[50], in particular paras. [44], [45] and [46];
• in respect of the third substantiated disciplinary allegation, paras. [51]-[55], in particular para. [51]; and
• in respect of the fourth of substantiated disciplinary allegation, paras. [56]-[81], in particular paras. [58], [64], [69] and [74]-[75].

[25] See Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259 [62] (Flanagan JA, Buss AJA at [65] and Kelly J at [66] agreeing).

[26] Public Interest Disclosure Act 2010, s 44(1).

[27] Ms Horton's submissions, para. 59.

[29] Ms Horton's submissions, paras. 1, 2 and 15.

[30] The Primary Decision (n 24), [41] and Ms Horton's submissions, para. 7.

[31] Ms Horton's submissions, paras. 5 and 7.

[33] Ms Horton's submissions, paras. 2 and 5.

[34] Ms Horton's submissions, para. 15.

[39] Ms Horton's submissions, paras. 13-14.

[40] Ms Horton's submissions, para. 11.

[41] The Department's submissions, paras. 17-19.

[42] The Department's submissions, paras. 20-21.

[43] [2014] ICQ 030.

[44] Avard v Australian Capital Territory [2025] FCAFC 72, [38]-[39] (Charlesworth, Stellios and Longbottom JJ).

[45] Appeal Record Book ('ARB'), page 248. Emphasis added.

[46] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-356 (Mason CJ).

[47]Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, 155 (Glass JA, Samuels JA at 157 agreeing).

[48] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

[49] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 645 (Shepherdson J, Kelly J at 640 agreeing).

[50] The Primary Decision (n 24), [3].

[52] Ms Horton's submissions, para. 22 and T 1-28, ll 30-42.

[53] The Department's submissions, para. 38.

[55] The Primary Decision (n 24), [41]-[50].

[56] Ms Horton's submissions, para. 24.

[57] The Department's submissions, paras. 22-25.

[58] Ms Horton's submissions, para. 23.

[59] The Department's submissions, para. 40.

[60] Set out in paragraph [109] of these reasons.

[61] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 ('SZVFW'), [78] (Nettle and Gordon JJ).

[62] SZVFW (n 61), [11] (Kiefel CJ) and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [108] and [113] (Gageler J).

[63] [2013] HCA 18; (2013) 249 CLR 332.

[64] The Primary Decision (n 24) [56]-[81].

[65] The Department's submissions, para. 42.

[66] The Department's submissions, para. 43.

[67] The Primary Decision (n 24), [56].

[68] The Primary Decision (n 24), [79]-[80].

[70] Ms Horton's submissions, para. 29.

[71] Ms Horton's submissions, para. 33.

[72] Ms Horton's submissions, paras. 34-38.

[73] Ms Horton's submissions, para. 37.

[74] Ms Horton's submissions, para. 39.

[75] Ms Horton's submissions, para. 40.

[76] [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).

[78] [2025] FCA 2.

[79] Comcare v Simeoni [2024] FCAFC 31; (2024) 181 ALD 561, [43] (Rangiah, Halley and O'Sullivan JJ).

[80] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, [24]-[25] (Gummow and Callinan JJ, Hayne J at [95] agreeing and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [13] (Bell, Gageler and Keane JJ).

[81] The Department's submissions, para. 45.