Horton v State of Queensland

Fowler v Workers' Compensation Regulator [2019] QIRC 149

Horton v State of Queensland (Department of Justice and Attorney- General) [2024] QIRC 278

Horton v State of Queensland (Department of Justice and Attorney- General) [2025] ICQ 007

Horton v State of Queensland (Department of Justice and Attorney- General) (No. 2) [2025] ICQ 013

State of Queensland v Lockhart [2014] ICQ 006

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

• [1] On 13 June 2025 Ms Jan Horton applied to the Queensland Industrial Relations Commission ('the Commission') to re-open her Public Sector Appeal proceedings in matter PSA/2023/192 ('the PSA proceedings').
• [2] The PSA proceedings had already been heard and determined by another Member of the Commission and a decision was released to the parties on 27 November 2024.[1]
• [3] Subsequent to the release of that decision, Ms Horton filed an appeal in the Industrial Court of Queensland ('the Court') which became matter C/2024/47 ('the appeal'). Before the appeal was heard and determined, a series of interlocutory applications made by Ms Horton were separately heard and determined, and a decision on those matters was released to the parties on 23 May 2025 ('the interlocutory decisions'). Relevantly, the interlocutory applications dealt with inter alia a request to adduce new evidence before the Court. Those applications were considered and dismissed by Deputy President Merrell on 23 May 2025.[2]
• [4] On 13 June 2025 (before the Court released its substantive decision on the appeal) Ms Horton filed this application pursuant to s 484(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') ('the reopening application'). The application identifies a series of documents Ms Horton obtained via a Right to Information Act 2009 (Qld) ('RTI') application on 15 April 2025. Ms Horton describes these documents as 'new' evidence.
• [5] Ms Horton contends (in essence) that these documents were improperly withheld by the respondent, and this then forms (she says) the justification for reopening the PSA proceedings.
• [6] The application was listed for mention on 11 July 2025.
• [7] In the meantime, the Court heard and determined the appeal, and a decision was released to the parties on 1 July 2025.[3] Ms Horton was entirely unsuccessful in the appeal.
• [8] At the mention of the reopening application on 11 July 2025, noting the decisions of the Court in the appeal, I counselled Ms Horton about the folly of this application.[4] Despite holding a preliminary view that the appeal was misconceived, I gave Ms Horton an opportunity to reflect on the matter and ultimately directed her to advise (within 7 days) whether she wished to discontinue the application or, alternatively, whether she wished to press the matter.
• [9] I further informed Ms Horton that if she wished to press the matter, she would be required to file submissions addressing my discretion to dismiss the matter pursuant to s 541 of the IR Act.[5]
• [10] After 7 days had elapsed, Ms Horton indicated a desire to have the reopening application heard. Consequently, I issued directions on 18 July 2025 requiring the parties to file submission on whether I ought to exercise my discretion pursuant to s 541 of the IR Act to refrain from hearing the application.

• [11] The parties filed submissions in accordance with those directions. I do not intend to recite those submissions here. The salient portions will be referenced in my consideration of the matter later in these reasons.
• [12] For the reasons that follow I have determined to exercise my discretion to refrain from hearing the application.

The legislation and relevant principles re reopening

• [13] The Commission has a discretionary power to reopen proceedings on application by a party to those proceedings. The discretion is not subject to any statutory conditions.
• [14] Section 484 of the IR Act is contained within Part 2, Division 4, of Chapter 11, (at Subdivision 11) of the IR Act which deals with the composition, powers, and functions of the Commission. Section 484 relevantly provides:

On application by a person mentioned in section 485, proceedings may be reopened by -

(a) for proceedings taken before the full bench - the full bench; or

• [15] In Fowler v Workers' Compensation Regulator[6] Deputy President Merrell made the following observations of principles relevant to re-opening applications:

The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2).

(a) first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;

(b) secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;

(c) thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be:

(i) the further evidence is so material that the interests of justice require its admission;

(ii) the further evidence, if accepted, would most probably affect the result of the case;

(iii) the further evidence could not by reasonable diligence have been discovered earlier; and

(iv) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

(d) fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs; and

(e) finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

• [16] In addition to these principles, there is a further need in this matter to consider the principles relevant to s 541 of the IR Act. This consideration is particularly pertinent with regard to whether there is an overarching technical barrier that fundamentally undermines Ms Horton's application, namely, the extinguishment of the Commission's jurisdiction to deal with the PSA proceedings by virtue of the appeal to the Court.

Discretion to refrain from dealing with the application

• [17] Section 541 of the IR Act vests in the Commission a discretion to dismiss a cause or refrain from hearing or deciding a cause if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest.[7]

• [18] In Campbell v State of Queensland (Department of Justice and Attorney-General),[8] Martin J in dealing with an application pursuant to s 541 of the IR Act wrote:

[27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:

The main purpose of this Act is to provide for a framework for cooperative industrial relations that -

(b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."

[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.

[30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission ...

• [19] Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:

The court or commission may, in an industrial cause -

(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -

(ii) further proceedings by the court or commission are not necessary or desirable in the public interest.

• [20] In State of Queensland v Lockhart,[9] Deputy President O'Connor (as he then was) summarised the meaning of 'public interest' in relation to the exercise of discretion under s 331 in the following terms:

[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote:

'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'

[22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)

• [21] On the question of 'public interest' it is apposite to revisit the words of (former) President Martin set out earlier in these reasons in Campbell:[10]

The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest...The accepted approach was that the applicant bore the onus of making the claim for relief**. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.**

• [22] There are a number of grounds in this matter which individually or together demonstrate the misconceived nature of the application, and which make for a compelling case to exercise the discretion conferred by s 541 of the IR Act to refrain from dealing with the application.

The Commission has no jurisdiction to further deal with the PSA proceedings

• [23] The Commission has jurisdiction to hear public sector appeals pursuant to Part 6, Chapter 11, Division 4 of the IR Act. The Commission exercised its jurisdiction in reviewing the decision appealed by Ms Horton. A decision was issued by the Commission on 27 November 2024.
• [24] Ms Horton subsequently exercised her right of appeal to the Court pursuant to Part 6, Chapter 11, Division 2. From that moment, the Court was seized of the issue and the Commission ceased to have any powers to deal with the PSA proceedings.
• [25] Further, where the Court is charged with a final disposition of a matter (as opposed to an appeal on an interlocutory issue) then, save for any order of the Court pursuant to s 558 of the IR Act, the Commission's power to deal with the matter is permanently extinguished except by operation of a further decision of the Court, or a higher court on appeal from the Court.
• [26] Ms Horton filed the reopening application on 13 June 2025 at a time when the Court was seized of the issue. From the very outset of the reopening application the Commission had no power to make orders or otherwise deal with the PSA proceedings. Before the mention on 11 July 2025, the Court had disposed of the appeal with finality on 1 July 2025, dismissing the appeal in its entirety. In the absence of any appeal against the decision of the Court, the Commission could never reacquire any power to deal with the PSA proceedings. There was no appeal by Ms Horton.
• [27] The Commission is established by the IR Act as a court of record.[11] The Court is established by the IR Act as a superior court of record.[12] An understanding of the subordinate nature in the relationship of the Commission to the Court does not require a sophisticated understanding of law. Ms Horton plainly understood the structure of the Court and the Commission when she filed the appeal to the Court. Even an unrepresented party should reasonably be expected to appreciate the absurdity of the proposition that the Commission could somehow intervene in proceedings being conducted within the power and jurisdiction of the Court, or to otherwise further deal with a matter finally disposed of by the Court.
• [28] To the extent that Ms Horton might contend she did not appreciate any of this when she filed the reopening application on 13 June 2025, she could have been under no illusions about it after the mention on 11 July 2025. It was explained to her in detail.
• [29] I note that Ms Horton's written submissions reveal she (or whoever might be assisting her) has an ability to research and analyse legal concepts. Despite the erroneous nature of the propositions they contain, the written submission reveals an intellect of more than adequate capacity to understand the inherent structure of the Court and Commission, and the technical difficulty with the reopening application.
• [30] Even allowing for some inexplicable ignorance about the technical barrier confronting her, Ms Horton could have had no reasonable expectation of success after 11 July 2025 and yet, she has filed her submission pressing the application. More concerningly, she has compelled the respondent (at taxpayer expense) to prepare and file theirs.
• [31] The Commission should refrain from dealing with the reopening application because it is fundamentally misconceived. It is not in the public interest to further deal with the matter. Even without this significant barrier, there are further grounds upon which convince me that I ought to refrain from hearing the matter.

• [32] On 23 May 2025, the Court issued a decision in relation to a number of interlocutory applications made by Ms Horton in the appeal. One of those applications included an application pursuant to s 567(2) of the IR Act.
• [33] In essence, Ms Horton made application to the Court during the conduct of her appeal to adduce new evidence she had recently uncovered. The evidence was in the form of a number of documents released to her following an RTI application. Ms Horton made the RTI application in February 2025 and received the documents in April of 2025.
• [34] It is not necessary for me to describe the documents in detail. They are discussed at length in Deputy President Merrell's decision on the interlocutory matters.[13] Ms Horton has already had the benefit of these reasons once.
• [35] Deputy President Merrell declined to grant the interlocutory application for a variety of reasons which include inter alia the lack of explanation from Ms Horton as to why she did not make an RTI application before February 2025 given her PSA proceedings had already been dealt with in November 2024.
• [36] What is relevant to this application is that Ms Horton now seeks to reopen her PSA proceedings before the Commission in reliance on what is substantially the same suite of documents, namely, those released to her in April 2025 via an RTI application.
• [37] If Ms Horton was aggrieved by the decision of Deputy President Merrell on 23 May 2025 to disallow the inclusion of those documents in her appeal proceedings, she had the option of appealing his interlocutory decision. She did not appeal.
• [38] Given that Ms Horton has already had the benefit of having her request to include those 'new' documents heard and determined, and given she has had the benefit of full reasons from the Court for the refusal, it is entirely contrary to the public interest for further time and cost to be expended (by the taxpayers) on Ms Horton having 'another go'.
• [39] Quite apart from all of that, there is the additional issue that arises from Ms Horton purporting to conduct a de facto appeal of a decision of the Court, outside the prescribed time limit for a conventional appeal, and to a subordinate court. And that is even before I consider any application of the doctrine of issue estoppel. [14]
• [40] For all of these reasons also, I will refrain from hearing the application.

• [41] In addition to the reasons already stated, the general merit of Ms Horton's reopening application is objectively poor.
• [42] As already noted in these reasons, Ms Horton's application seeks to reopen the PSA proceedings on the basis that she has obtained 'new' documents via her RTI application. The majority of the documents in question are dated variously between 2021 and 2023. One is a policy document. None of them are 'new' in the sense that they were recently created. They were all in existence well before Ms Horton commenced the PSA proceedings.
• [43] In circumstances where the documents have already been extensively considered and dismissed by Deputy President Merrell, for all of the reasons already stated, I do not consider it proper to reconsider those documents with respect to their alleged probative value to the PSA proceedings, or at all.
• [44] Suffice to say, the reopening of proceedings is a significant event. It will invariably result in significant prejudice to at least one party where they might otherwise have reasonably and confidently considered the issues and evidence in proceedings had been comprehensively and finally determined. A party seeking to reopen proceedings will need to provide compelling reasons why such a significant disruption should occur.
• [45] Ms Horton has provided no such reasons. The submissions filed in support of her application to reopen are largely in the form of an unsubstantiated diatribe containing allegations of bias and corruption directed at those responsible for the performance management and disciplinary process she has been subject to. Ms Horton asserts that the respondents have somehow deliberately failed to disclose the subject documents to her. Ms Horton's submissions entirely miss the point.
• [46] The fact that the documents in question were not produced by the respondent during the PSA proceedings may reflect the fact that the respondent (rightly or wrongly) did not consider they were relevant. The fact that Ms Horton discovered them independently after the PSA proceedings were concluded does not, of itself, make their absence in the PSA proceedings an affront to natural justice.
• [47] What Ms Horton was required to address in this application first and foremost, and what she failed to do, was to explain why she did not make efforts to discover these documents earlier than February 2025. Her failure in this regard would weigh heavily against any reopening of the PSA proceedings.
• [48] The interests of justice are not served by allowing litigants who demonstrate unexplained dilatory conduct to revisit and reopen proceedings every time they happen upon a document or other evidence that they subjectively characterise as new and relevant.

• [49] I intend to exercise my discretion conferred by s 541 of the IR Act to refrain from hearing Ms Horton's application to reopen her PSA proceedings. The application is fundamentally misconceived.
• [50] The absence of jurisdiction of the Commission to intervene in proceedings already disposed of by the Court is a glaringly obvious and a compelling reason to refrain from hearing the application. But the attempt to duplicate a controversy already considered and disposed of by the Court is an equally compelling additional reason to refrain from hearing the application.
• [51] For completeness, and without descending into a formal consideration of the principles relevant to reopening of applications, the absence of any explanation as to why Ms Horton only now produces documents that would have been available to her over 2 years ago is extremely problematic. Given the significant prejudice likely to be caused to the respondent if the PSA proceedings were to be reopened, Ms Horton has fallen well short of demonstrating that reopening is in the interests of justice.
• [52] Ms Horton was cautioned about this outcome. The jurisdictional barrier ought to have been obvious to her but to the extent it was not, Ms Horton was given the indulgence of having it explicitly explained to her at the mention on 11 July 2025. Despite this, Ms Horton pressed the reopening application.
• [53] The respondent has sought costs in respect of responding to this application. The respondent has not (as yet) articulated the basis for their request, nor have they provided any estimate of the costs they seek. Given the indulgence granted to Ms Horton at the mention on 11 July 2025, it is difficult to imagine how she might have considered her application had any reasonable prospect of success.[15]
• [54] In all of the circumstances fairness dictates that the respondents outline a basis of their costs application in writing and that Ms Horton be given an opportunity to consider and respond to it.

• [55] For all of the foregoing reasons I make the following Orders:
  1. The application in matter B/2025/57 is dismissed;

1. The parties are to provide submissions on costs as separately directed.

[1] Horton v State of Queensland (Department of Justice and Attorney- General) [2024] QIRC 278.

[2] Horton v State of Queensland (Department of Justice and Attorney- General) [2025] ICQ 007.

[3] Horton v State of Queensland (Department of Justice and Attorney- General) (No. 2) [2025] ICQ 013.

[6] [2019] QIRC 149 at [40].

[7] Industrial Relations Act 2016 (Qld) s 541(b)(ii).

[8] [2019] ICQ 18, [27] - [30].

[9] [2014] ICQ 006, [21] - [22].

[11] Industrial Relations Act 2016 (Qld) s 429.

[12] Ibid s 407.

[13] Horton v State of Queensland (Department of Justice and Attorney- General) [2025] ICQ 007 at [29] to [50].

[14] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, [22] per French CJ, Bell, Gageler and Keane JJ, citing Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 510 per Starke J, 531-533 per Dixon J.

[15] Industrial Relations Act 2016 (Qld) s 545(2)(a)(ii).