Benjamin v Sharp & Ors (No 2) [2026] ICQ 6

INDUSTRIAL COURT OF QUEENSLAND CITATION: Benjamin v Sharp & Ors (No 2) [2026] ICQ 006 PARTIES: LOUISE BENJAMIN (appellant) v JULIE SHARP (first respondent) and LISA HENDY (second respondent) and PAROLE BOARD QUEENSLAND (third respondent) and STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES) (fourth respondent) and TRACEY JACKSON (fifth respondent) FILE NO: C/2025/3 PROCEEDING: Appeal DELIVERED ON: 1 June 2026 HEARING DATE: Decided on written submissions MEMBER: Davis J, President ORDERS: There be no order as to costs. CATCHWORDS: INDUSTRIAL LAW – INDUSTRIAL APPEAL TO INDUSTRIAL COURT – COSTS – where the appellant alleged apprehended bias against a Commissioner of the Queensland Industrial Relations Commission – where the Commissioner refused to recuse himself – where the appellant appealed – where the appellant was unsuccessful – where the respondents sought costs of the appeal – whether it is in the interests of justice to make an order for costs Anti-Discrimination Act 1991 Industrial Relations Act 2016, s 548 Public Interest Disclosure Act 2010, s 44 CASES: Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054, related Benjamin v Sharp & Ors [2026] ICQ 005, related -- 1 of 7 -- 2 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, cited SOLICITORS: MPO Legal for the appellant Crown Law for the respondents [1] This is an application for costs brought by the successful respondents to an appeal against a decision of an Industrial Commissioner not to recuse himself in the face of an allegation of apprehended bias. Background [2] The appellant, Louise Benjamin, is a lawyer who was employed by Queensland Corrective Services and, at relevant times, working at the Parole Board Queensland. [3] She brought a discrimination complaint pursuant to s 44 of the Public Interest Disclosure Act 2010. The complaint was referred to the Queensland Industrial Relations Commission. [4] Industrial Commissioner Dwyer managed Ms Benjamin’s case. [5] Ms Benjamin alleged that the Industrial Commissioner demonstrated apprehended bias1 and brought an application to him seeking his recusal. [6] On 21 February 2025, Ms Benjamin’s application was dismissed2 and she appealed. [7] On 1 May 2026, I dismissed Ms Benjamin’s appeal,3 making the following orders: “1. The appeal is dismissed. 2. By 4pm on 8 May 2026, the respondent file and serve any material and written submissions on the question of costs. 3. By 4pm on 15 May 2026, the appellant file and serve any material and written submissions on the question of costs. 4. Each party has leave to file and serve an application by 22 May 2026 seeking leave to make oral submissions on the question of costs of the appeal. 5. In the event no application is filed pursuant to order 4, the question of costs will be determined upon consideration of any 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 2 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054. 3 Benjamin v Sharp & Ors [2026] ICQ 005. -- 2 of 7 -- 3 written submissions and material filed without oral submissions.” [8] Pursuant to the directions, the respondents filed written submissions supported by an affidavit of a lawyer working within the Office of the Crown Solicitor. That affidavit assessed costs actually incurred at $34,397.55. [9] The respondents seek costs fixed at $20,847. [10] Ms Benjamin has not filed submissions in relation to costs. Relevant statutory provisions [11] Section 548 of the Industrial Relations Act 2016 provides relevantly as follows: “548 Costs provisions (1) The provisions for costs in schedule 2 apply to a proceeding— (a) heard by the commission under the Anti- Discrimination Act 1991; or (b) for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a). (2) If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.” [12] Section 548 provides that schedule 2 of the Act applies. [13] Item 4 of schedule 2 provides: “4 Costs against party in interests of justice (1) The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order. (2) In deciding whether to award costs under subsection (1) the commission may have regard to the following— (a) whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; -- 3 of 7 -- 4 (b) the nature and complexity of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (e) the financial circumstances of the parties to the proceeding; (f) anything else the commission considers relevant.”4 [14] Therefore, the question is, when having regard to the factors identified in Item 4(2)(a)–(e) and any other relevant factors,5 whether it is in the interests of justice to require Ms Benjamin to pay costs. Consideration [15] The respondents submit that they should have their costs because: (a) matters raised in the appeal were complex; (b) the respondents were completely successful in the appeal and some of the factual underpinnings of Ms Benjamin’s submissions failed. [16] The respondents further point to the fact that there is no evidence about Ms Benjamin’s financial circumstances and that while there was an offer made by Ms Benjamin to settle the appeal, it was, for practical purposes, incapable of acceptance. Its terms were that the parties should agree that the case be managed by some Industrial Commissioner other than Industrial Commissioner Dwyer. The respondents submit that the allocation of an Industrial Commissioner to hear the case is not a matter for the parties and therefore performance of the terms of settlement proposed by the offers is beyond the parties’ control. [17] The respondents are correct, in my view, in their submission that the offer to settle carries no weight in the exercise of the discretion. It is for the Commission to determine which Industrial Commissioner manages the case, not the parties. They are also right in their submission that the appeal raised complex issues and the respondents were completely successful.6 They are also right when they say that 4 There is no subsection (d). 5 Item 4(2)(f). 6 See generally the reasons; Benjamin v Sharp & Ors [2026] ICQ 005. -- 4 of 7 -- 5 there is no evidence as to Ms Benjamin’s financial position and consequently the discretionary factor prescribed by s 4(2)(e) does not arise. [18] However, in my view there were issues worthy of scrutiny. Ms Benjamin was self- represented when she instituted her appeal, but by the time of the hearing she was represented by both solicitors and counsel who put forward solid, reasoned submissions. [19] The reasons dismissing the appeal deal with the detail of the arguments. It is not necessary to record the grounds or the arguments. However, there were two issues of significance which arose: (a) conduct of the Industrial Commissioner during various hearings; and (b) the statement by the Industrial Commissioner of the relevant test. [20] It was obvious from the evidence that there had been difficult exchanges between the Industrial Commissioner and Ms Benjamin during the various hearings. On 23 August 2024, at a mention of Ms Benjamin’s matter, the Industrial Commissioner made adverse comments about Ms Benjamin’s Statement of Facts and Contentions which had been filed. Ms Benjamin submitted on her recusal application before the Industrial Commissioner that the comments demonstrated an apprehension of bias. [21] In his judgment dismissing the recusal application, the Industrial Commissioner conceded that his initial comments were inappropriate. He observed: “[104] On reflection I can appreciate that my initial reaction to the allegation may have deprived Ms Benjamin an opportunity to explain the controversial pleading. But it is important to note that, despite the unfairness of my initial reaction, I was expressing views about such pleadings generally (as opposed to Ms Benjamin’s pleadings). Further, the transcript reflects a swift segue to more measured and appropriate interactions thereafter. [105] Whether my intemperate initial reaction to this controversy is enough to meet the standard for recusal is discussed later in these reasons. For now, it is important to appreciate the thought process giving rise to my reaction. Importantly, there is objective evidence of the true nature of my reaction throughout the latter portions of the transcript.”7 7 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054. -- 5 of 7 -- 6 [22] There were other exchanges during mentions where the Industrial Commissioner had been critical of Ms Benjamin’s handling of her case. This raised concerns about perceived impartiality. [23] The relevant test in determining an application for recusal upon the ground of apprehended bias was: “…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the resolution of the question the judge is required to decide”8 (emphasis added) [24] On various occasions through the judgment, the Industrial Commissioner expressed the “double might test”, as a “double would” test in the sense that the lay observer would not reasonably apprehend and that the Industrial Commissioner would not bring an impartial view to the case.9 It was argued then that this impermissibly set a higher bar for Ms Benjamin to clear in order to win her recusal application. [25] A detailed analysis of both the conduct of the Industrial Commissioner in the hearings10 and the application by the Industrial Commissioner of the Ebner test,11 ultimately led to the conclusion that Ms Benjamin had failed to make out her grounds of appeal. [26] A citizen is entitled to have their case heard by a tribunal which both appears impartial and is impartial. That is a fundamental tenet of the justice system. The respondents did not suggest that the appeal was vexatiously brought. The appeal failed on its merits but only after extensive argument and detailed analysis by the court. The appeal was not, in my view, frivolous. [27] The starting point is that each party should bear their own costs. That position is only shifted if it is in the interests of justice to do so. [28] In my view, in view of the circumstances I have identified, it is not. 8 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. 9 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054 at [178], [196], [204], [213] [214], [228] and [244]. 10 Benjamin v Sharp & Ors [2026] ICQ 005. 11 Benjamin v Sharp & Ors [2026] ICQ 005 at [88]-[131]. -- 6 of 7 -- 7 Orders [29] There is no order as to costs of the appeal. -- 7 of 7 --