Benjamin v Sharp & Ors [2026] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND CITATION: Benjamin v Sharp & Ors [2026] ICQ 005 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 May 2026 HEARING DATE: 4 December 2025 MEMBER: Davis J, President 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 -- 1 of 48 -- 2 consideration of any written submissions and material filed without oral submissions. CATCHWORDS: APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – WRONG PRINCIPLE – where the appellant is an applicant in the Queensland Industrial Relations Commission – where she alleged reprisals after she made a public interest disclosure – where the application in the Commission has been managed by a particular Industrial Commissioner – where the appellant made application to the Industrial Commissioner for him to recuse himself on the ground of apprehended bias – where that application was dismissed – where the appellant appealed the dismissal of that application – whether the Industrial Commissioner applied the correct test correctly Industrial Relations Act 2016, s 424, s 451, s 557, s 565 Industrial Relations Act 1988 (Cth), s 170UB, s 170UC Public Interest Disclosure Act 2010 CASES: Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235, cited Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010, cited Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86; (2023) 179 ALD 278, cited Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited Benjamin v Sharp & Ors (No 2) [2026] QIRC 117, related Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054, related Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289, cited Chief Commissioner of Police v Crupi [2024] HCA 34; (2024) 98 ALJR 1131, cited Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, cited Comalco Aluminium (Bell Bay) Ltd v O’Connor [1995] 61 IR 455, cited Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] 2 Qd R 262, cited Director of Public Prosecutions v Smith [1991] 1 VR 63; (1989) 100 FLR 6, cited DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, cited Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, cited Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, cited Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited Gambaro v Maycomb Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530, cited -- 2 of 48 -- 3 Harvey v State of Queensland (Queensland Health) [2024] ICQ 010, cited Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009, cited Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 12, cited Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, cited McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70, cited Michael v Western Australia [2007] WASCA 100, cited Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604, cited MZAPC v Minister for Immigration [2021] HCA 17; (2021) 273 CLR 506, cited O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, cited Piccolotto v The Queen [2015] VSCA 143, cited QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148, cited Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2) [2021] ICQ 003, cited Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, cited Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, cited SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8, cited Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited Warren v Coombes [1979] HCA 9 (1979) 142 CLR 531, followed COUNSEL: N M Cook for the appellant J Marr for the respondents SOLICITORS: MPO Legal for the appellant Crown Law for the respondents -- 3 of 48 -- 4 [1] The appellant, Louise Benjamin, appeals against the refusal of Industrial Commissioner Dwyer to recuse himself from the management of her case.1 Background [2] The appellant is a lawyer who is employed by the State of Queensland in Queensland Corrective Services. At all relevant times, she was working at the Parole Board Queensland. [3] The first respondent, Ms Sharp, is a member of the Parole Board. [4] The director of the Legal Services Unit of the Parole Board was, at material times, the second respondent, Ms Lisa Hendy. Ms Hendy was absent from the workplace for a period and Ms Benjamin performed the duties of acting director of the Legal Services Unit. In circumstances which need not be analysed, Ms Benjamin lodged a public interest disclosure pursuant to the Public Interest Disclosure Act 2010 and contends that reprisal action was taken against her. She was removed from her role in the Legal Services Unit at the Parole Board. [5] Ms Benjamin pursued a reprisal complaint. That was accepted by the Queensland Human Rights Commission and ultimately referred to the Queensland Industrial Relations Commission. [6] Industrial Commissioner Dwyer was assigned as the case manager of Ms Benjamin’s case. [7] The QIRC operates a docket system. The Industrial Commissioner allocated to manage the case will supervise it until it is set down for hearing. The case is then allocated to some other member for hearing. [8] The case was mentioned before Industrial Commissioner Dwyer on numerous occasions but by the end of 2024, Ms Benjamin had formed the view that he was either actually biased against her2 or had at least demonstrated apprehended bias. She 1 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054. 2 There is a contest as to whether actual bias was alleged by Ms Benjamin: see paragraphs [139]-[143] of these reasons. -- 4 of 48 -- 5 sought that Industrial Commissioner Dwyer recuse himself from managing the case and written submissions were exchanged. The respondents opposed Industrial Commissioner Dwyer’s recusal. [9] The recusal application was dealt with by Industrial Commissioner Dwyer upon consideration of the written submissions and without oral hearing. On 21 February 2025, he refused Ms Benjamin’s application and delivered detailed reasons for so doing.3 Ms Benjamin appealed that decision and that is the appeal before me. [10] In the meantime, an application was filed in the Commission by the respondents seeking the striking out of Ms Benjamin’s Statement of Facts and Contentions in its entirety. The grounds for that application need not be analysed. However, the primary submission made by the current respondents on that application was “…the appellant’s reprisal claim as currently pleaded is materially deficient and cannot succeed on any view of the law and facts and should be struck out pursuant to s 451(2)”.4 [11] As framed, the application to strike out Ms Benjamin’s Statement of Facts and Contentions had the potential to lead to the final determination of Ms Benjamin’s case. [12] The strike out application was put in abeyance pending determination of the appeal. As will be later explained, that application was then placed on a list run by Deputy President Merrell5 and has now been heard and determined.6 The result was that the Statement of Facts and Contentions was struck out in its entirety. Leave was given to file an amended Statement of Facts and Contentions but very detailed directions were given prescribing the level of particularity required. 3 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054. 4 Section 451 of the Industrial Relations Act 2016 bestows general powers upon the Queensland Industrial Relations Commission. 5 See paragraph [167] of these reasons. 6 Benjamin v Sharp & Ors (No 2) [2026] QIRC 117. -- 5 of 48 -- 6 The proceedings before this Court [13] Ms Benjamin initially represented herself in relation to the application under appeal. She drew the grounds of appeal and submissions in support herself. By the time the appeal came for hearing, she was represented by both solicitors and counsel. [14] Upon the engagement of lawyers for Ms Benjamin, a supplementary outline of submissions was filed together with an affidavit sworn by Ms Benjamin. Ms Benjamin sought leave to have that affidavit admitted on the appeal. [15] Objection was taken to both the affidavit and aspects of the supplementary submissions. The affidavit deposed to events which occurred after the hearing before the Commission and was irrelevant to the appeal. Leave to rely upon it was refused and reasons were given ex tempore during the hearing of the appeal.7 [16] I reserved judgment on the objections to the submissions but as will become apparent, all submissions by Ms Benjamin should be rejected. There is no need to either identify the passages objected to, or to determine the objections. [17] As is often the case when experienced counsel is briefed late in an appeal, the issues are narrowed. The application to appeal contains grounds 1, 2, 3 and 4. On the hearing of the appeal, appeal grounds 3 and 4 were abandoned. [18] Grounds 1 and 2, which are the ones pressed on appeal, are as follows: “1. Error/s of law (pursuant to section 557(1)(a) of the Industrial Relations Act 2016 (Qld)): a. Misapplication of the relevant legal test and/or failure to apply the relevant test to the facts: i. Failure of the decision maker to put themselves in the shoes of the objective bystander as required by the relevant legal test. The reasons are justifications for the actions alleged to indicate bias and refer consistently to subjective intentions of the decision maker for the alleged acts of apprehended bias. The test is that of an objective bystander (Ebner v Official Trustee in Bankruptcy (Ebner) (2000) 205 CLR 337, 344). According to Asset Energy Pty Ltd v 7 Transcript 1-21 to 1-23. -- 6 of 48 -- 7 Commonwealth Minister for Resources [2023] FCA 86 (Asset Energy Pty Ltd v Commonwealth Minister for Resources), the subjective intention of the Commissioner is irrelevant. The objective bystander is not privy to a decision maker’s intentions or any reasoning in the mind of the decision maker. In Charisteas v Charisteas [2021] HCA 29, (2021) 273 CLR 289 the High Court emphasised that the fair- minded lay observer has no special knowledge or qualifications, and that the actual motivation of the decision maker is irrelevant. The reasons do not demonstrate that the authorities of Asset Energy Pty Ltd v Commonwealth Minister for Resources and Charisteas v Charisteas have been applied to the decision [see for example para 226 of the Decision]. The purpose of the reasons is to explain why the test of the objective bystander would not perceive the acts complained of as indicating bias. The reasons only offer a simple one-dimensional denial that the objective bystander would see the actions complained of as biased or that there is no logical connection [see paragraphs 170, 178, 190, 196, 204, 213, 214, 215, 226, 227, 228 and 244]. The possibility of apprehended bias must be real and not remote. However, the alleging party is not required to show that it is likely or probably the Judge would not bring an impartial mind to the matter. The test is about the appearance of bias, not actual bias. ii. The legal test was not applied at all to grounds 5 or 6 for apprehended bias [see paragraphs 214, 215 and 219 of the Decision]. b. Failure to follow relevant case law. The authorities (Gambaro v Maycomb Mobile Pty Ltd [2019] FCAFC 144, Michael v Western Australia [2007] WASCA 100 and Piccolotto v The Queen [2015] VSCA 143) state that the use of intimidatory techniques leads to a conclusion of apprehended bias. Refer submissions of the Complainant/Applicant filed 28 November 2024 at paragraphs 48 - 54. These authorities have not been applied to the Decision [see paragraph 181 of the Decision]. c. Denial of procedural fairness – not allowing the Complainant to access and present evidence to prove apprehended bias: i. Denial of access (through the suppression order and threat that if the application to lift the suppression order is made so that application can be made for the audio/transcripts) to the audio/transcripts of the -- 7 of 48 -- 8 mentions for AD/2024/26 that contain direct evidence of the allegations of apprehended bias. 2. Application for the Commission's leave to appeal on the ground of error of fact (pursuant to section 557(2) of the Industrial Relations Act 2016 (Qld)). Fundamental errors in finding of facts has led to the making of an error of law in the Decision. i. Error in fact that actual bias (in addition to apprehended bias) was alleged. Refer email application to Registry dated 20 November 2024 that ‘This is a request for Commissioner Dwyer to recuse himself from AD/2024/36. The request for recusal is on the basis of apprehended bias’. Actual bias was not alleged given the high standard of proof and lack of evidence to support an allegation of actual bias. ii. Error in fact in finding that there was no evidence of conduct in the courtroom that would intimidate, bully or embarrass recorded on the audio/transcripts of proceedings. Refer to paragraph 2, of the Affidavit of Louise Benjamin sworn 28 November 2024. It is requested that the Commission in considering the appeal review the audio of the mentions for AD/2024/26 (given the Appellant is unable to produce copies of them), particularly the mention on 23 August 2024. [See paragraphs 195 and 227 of the Decision]. iii. Error in fact that written reasons were not requested by the Complainant for the Decision to impose a suppression order. Refer to Exhibit LVB-04 to the Affidavit of Louise Benjamin sworn 28 November 2024. [See paragraphs 214 and 219 of the Decision]. iv. Error in fact that there has been a refusal to allow access to proceeding recordings and transcripts [see paragraphs 214 and 215 of the Decision]. Irrespective of the suppression order that has been retrospectively applied and then used as a reason to deny access to the 23 August 2024 mention transcript/audio that was heard in open court, access not been granted to the audio or transcripts for any of the mentions in AD/2024/26. This ground relates to the threat made during the 02 October 2024 mention when the statement was made that ‘And that then, Ms Benjamin, may draw attention from regulatory bodies in relation to your pleading and your conduct..’. In order to apply for the audio or transcripts of these proceedings I was notified that I need to apply to lift the suppression order, and that if an application to lift the suppression order as made that it ‘may draw attention from regulatory bodies in relation to your pleading and your conduct’. The access to audio or transcripts for any of the mentions in AD/2024/26 has not been given, and is subject to the successful application to lift the suppression order which itself was affected by a threat -- 8 of 48 -- 9 that any such application ‘may draw attention from regulatory bodies in relation to your pleading and your conduct’. This is a breach of natural justice and procedural fairness. v. Error in fact that there was not several instances indicating pressure to engage legal representation, including both orally in mentions and in writing. See paragraphs 55 and 56 of the Complainant's submissions filed 28 November 2024 and the contents of the Affidavit of Louise Benjamin sworn 28 November 2024 and Exhibit LVB-05 of the Affidavit of Louise Benjamin sworn 28 November 2024. vi. Error in fact that there was not excessive intervention and courtroom comments persuading the Complainant to consent to extensions of time. [See paragraph 244 of the Decision]. Again, it is requested that the Commission in considering the appeal review the audio of the mentions for AD/2024/26, particularly the mention on 23 August 2024 to determine this fact.” (citation omitted; emphasis added) [19] The grounds of appeal and the written submissions filed both before the Commission and on appeal refer to “grounds”.8 That is reference not to grounds of appeal but to what was identified in the Commission as eight grounds for recusal. These were each discreet allegations said, either alone or in accumulation, to give rise to an apprehension of bias against Ms Benjamin. [20] The eight grounds of recusal are described in the judgment of the Commission as: “• Ground One: On 17 July 2024, I ordered the removal of Ms Benjamin's interlocutory application for directions and supporting affidavit filed 27 June 2024 from the file. Ms Benjamin alleges the affidavit contained 'critical evidentiary material' not forwarded with the original QHRC complaint. Ms Benjamin contends that the removal of the affidavit suggests that I do not want any evidence on the file which may impact negatively upon the respondents or Justices of the Supreme Court. • Ground Two: During the mention on 23 August 2024, Ms Benjamin contends that I engaged in conduct intended to intimidate, bully, or embarrass her. Ms Benjamin complains that my reaction to a controversial pleading in her material was excessive and characteristic of someone 'overly invested' in the subject matter of the proceedings. Ms Benjamin further seeks to illustrate how my conduct, in her contention, does not comply with the Commission's Code of Conduct for members. 8 See for example ground 1(a)(ii) of the application to appeal. -- 9 of 48 -- 10 • Ground Three: By correspondence sent via the Registry on 24 September 2024 and 25 September 2024, I excessively pressured Ms Benjamin to engage legal representation in the proceeding. As a result, I am alleged to be aligned with the respondents’ likely tactic of ‘burying’ Ms Benjamin in prohibitive legal costs. • Ground Four: On 6 September 2024, acting on the Commission's own motion, I issued an unjustified suppression order to seal the file that allegedly was not in accordance with the law. The decision to issue the suppression order without hearing from the parties constitutes a breach of natural justice and procedural fairness. • Ground Five: On 11 October 2024, given the suppression order in place, I allegedly stated that Ms Benjamin cannot have access to the transcripts or recordings from the proceedings without first making an application to have the suppression order lifted, thus denying her the transcripts. • Ground Six: I allegedly refused to provide, written reasons for decision for the suppression order issued 6 September 2024. • Ground Seven: On 2 October 2024, I allegedly threatened Ms Benjamin when I stated that if Ms Benjamin made an application to lift the suppression order, it may draw the attention of regulatory bodies to her conduct. • Ground Eight: At a mention on 23 August 2024, and further mentions up to and including 25 October 2024, I made comments to persuade Ms Benjamin to accede to the respondents' requests for extensions of time to comply with directions. According to Ms Benjamin, the comments amount to excessive intervention, such that I have ‘descended into the arena’ and ‘appear to be taking sides’.” [21] Appeal grounds 1(a) and 1(b) allege errors in relation to the application of the Ebner9 test to the various grounds of recusal. Also within appeal ground 1(a) is a complaint as to the adequacy of reasons given by the Commission. [22] Appeal ground 1(c) alleges a failure to afford procedural fairness. [23] Appeal ground 2 alleges errors of fact and leave is sought pursuant to s 557(2) of the Industrial Relations Act 2016 (IR Act) to raise those grounds. 9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. -- 10 of 48 -- 11 [24] Section 424 of the IR Act provides that this Court has such jurisdiction as might be conferred by the IR Act or any other Act.10 Section 557 bestows jurisdiction upon the Court to hear appeals from the Commission: “557 Appeal from commission (1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than— (a) error of law; or (b) excess, or want, of jurisdiction…” [25] The jurisdiction is limited by s 557(1) to appeals alleging an error of law or excess or want of jurisdiction except by leave. [26] The circumstances under which leave must or must not be given are prescribed by s 565: “565 When leave for appeal must be given If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench— (a) must give leave if it is satisfied it is in the public interest to do so; and (b) may not give leave other than under paragraph (a).” (emphasis added) [27] The effect of s 565 is that the only ground upon which leave may be given is if the Court is satisfied “it is in the public interest to do so”. If that level of satisfaction is reached, leave must be given. [28] As was explained by Glass JA in Turnbull v New South Wales Medical Board,11 a statute conferring appellate jurisdiction will limit the nature and breadth of the 10 Section 424(1)(a). 11 [1976] 2 NSWLR 281 and see also Aldrich v Ross [2001] 2 Qd R 235. -- 11 of 48 -- 12 appellate review which is authorised. At one end of the spectrum, his Honour identified “appeals to supervisory jurisdiction” which his Honour described as where “only errors going to jurisdiction or denials of natural justice can be ventilated”.12 At the other end of the spectrum, his Honour identified “appeals involving a hearing de novo,” which his Honour described as an appeal where “all the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time.”13 [29] While s 565 of the IR Act allows grounds other than those identified in s 557(1) to be agitated by leave, what grounds can be agitated, and therefore the scope of appellate review is a matter of discretion. No discretion is unfettered. Any discretion must be exercised judicially and for the purposes for which the discretion was bestowed.14 [30] There may be a further limitation. Section 557 refers to an “appeal” as does s 565. It may be that the term “appeal” carries with it authority for intervention only when error is shown at first instance.15 It may be that s 557(1) does not authorise leave to be given to conduct a hearing de novo. It is not necessary in this case to decide that issue or indeed to otherwise define the limits of the operation of s 565. [31] In Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2),16 Wilcox CJ and Keely J considered the notion of the public interest and observed: “There is nothing in either of these cases,17 or in s 170UB or 170UC,18 to commend a narrow interpretation of the expression ‘public interest’ or to suggest that, as submitted by Comalco, consideration of the public interest may not include consideration of the interests of the parties to the relevant industrial dispute. On the contrary, the resolution of industrial disputes being a primary purpose of the Act, the disposal of a dispute in a manner that takes account of the interests of the disputants is plainly within the scope and purpose of the legislation. The purpose of the reference to ‘public interest’ is to 12 At 297. 13 At 298. See also Aldrich v Ross [2001] Qd R 235. 14 Shrimpton v The Commonwealth (1945) 69 CLR 613. 15 As opposed to a hearing de novo; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [49]-[53] and see also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203. 16 [1995] 61 IR 455, a decision of the Industrial Relations Court of Australia. 17 A reference to O’Sullivan v Farrer (1989) 168 CLR 210 and Re Queensland Electricity Commission; Ex parte Electrical Traders Union of Australia (1987) 61 ALJR 393. 18 Industrial Relations Act 1988 (Cth). -- 12 of 48 -- 13 ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the ‘scope and purpose’ of the legislation. But the statute does not direct the Commission as to the weight to be given to the various factors or as to the decision it should make.”19 [32] It is a fundamental principle of the application of the rule of law that controversy is settled by a court which is independent and neutral and which is seen to be independent and neutral.20 The resolution of cases by an independent and neutral arbiter is obviously in the public interest. [33] The respondents here oppose the giving of leave under s 557(2). They do so on bases which criticise the quality of the grounds sought to be argued. They say that the alleged errors of fact are not properly identified or established and in any event they are inconsequential. Those arguments go to the merits of the grounds of appeal. [34] Lastly, the respondents submit “there are no countervailing considerations sufficient to outweigh the strong public interest in finality”. A decision made by a tribunal infected with an apprehension of bias is a decision made beyond jurisdiction.21 There cannot, with respect, be a public interest in the final determination of a case by a decision which is infected by apprehended bias. [35] If there is merit in appeal ground 2, then a failure to give leave would, or may, result in a decision infected by apprehended bias remaining undisturbed. That is not in the public interest in my view. Consequently, the appropriate approach is to entertain appeal ground 2 and then give leave if appeal ground 2 has merit. [36] As already observed, no party suggested that I ought hear the application de novo. Such an approach may, as also earlier explained, not be authorised by s 557 of the IR Act.22 It may also be inconsistent with the explanation of the principles given in Ebner. There it was explained that the primary obligation to determine an 19 At 479-480; and see also Harvey v State of Queensland (Queensland Health) [2024] ICQ 010 at [20]; Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009 at [13]; Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 at [35]; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; and Director of Public Prosecutions v Smith [1991] 1 VR 63. 20 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [3]. 21 MZAPC v Minister for Immigration (2021) 273 CLR 506 at [33]. 22 See paragraph [30] of these reasons. -- 13 of 48 -- 14 apprehended bias application lies with the judicial officer against whom the allegation is made. Logically then any review would be one focused on error, not a hearing de novo. The parties have approached the appeal in that way. Counsel for Ms Benjamin sough to identify error and counsel for the respondents responded to those arguments. [37] Should leave be granted, I will deal with the matter as if it was an appeal by way of rehearing as that term is commonly known.23 The appeal will only be allowed if error of the kind identified in the grounds of appeal is established and then only if the error could have made a difference to the outcome of the application.24 I will be at liberty to draw my own inferences from the facts.25 [38] Counsel for Ms Benjamin presented his arguments as topics rather than following the grounds of appeal strictly. That was understandable as grounds 1(a) and 1(b) overlap somewhat and counsel was not the author of the grounds of appeal or the initial written submissions. [39] When arguing ground 1(a), counsel identified a number of findings where, it was submitted, the Industrial Commissioner had taken into account irrelevant considerations. Those were all discreet issues about specific findings. I have dealt with those under ground 1(a). [40] When arguing ground 1(b), counsel identified various instances where, it was submitted, the Industrial Commissioner misapplied “the double might test” as explained in Ebner. In that context it was submitted that the reasons are insufficient. I deal with these issues under ground 1(b). [41] The scope of ground 1(c) and 2 is self explanatory. Ground 1(a): The discreet issues [42] Ms Benjamin’s first complaint concerns paragraphs [22] to [29] of the Commissioner’s reasons. Those paragraphs appear under a heading “Overview”. 23 Fox v Percy (2003) 214 CLR 118. 24 Hossain v Minister for Immigration (2018) 264 CLR 123 at [27]. 25 Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs ACJ (as his Honour then was), Jacobs and Murphy JJ. -- 14 of 48 -- 15 They follow paragraph [21] which is the only paragraph appearing under the heading “Relevant chronology”. It is necessary to refer to the entirety of the passage under those two headings: “Relevant chronology [21] Ms Benjamin’s submissions tend to focus on selected aspects of our interactions. Further, they occasionally extend to assertions that bear no resemblance to objective facts at all. In those circumstances it is necessary to outline the full factual context surrounding each incident she complains of. This chronology of relevant events (with observations and explanations) will assist to establish a fairer and more objective context within which Ms Benjamin’s assertions of apprehended or actual bias can be evaluated. Overview [22] It ought to be noted at the outset that, following the referral of this matter to the Commission from the QHRC, the matter has been allocated to me for the purposes of case management only. With the exception of interlocutory matters, I will not play any role in deciding the substantive complaint of reprisal. [23] In the usual course of events, the role of a member case managing a matter will include, but is not limited to, convening a conciliation conference at first instance, then issuing directions to the parties (in a standard form) requiring the filing of SOFCs. [24] Following the parties’ compliance with the directions it is not uncommon to convene a further conciliation conference. If the second conciliation conference is declined or does not produce a resolution of the matter, the case managing member will refer the file back to the Registry for allocation to another member who will proceed to hear the matter. [25] Additionally, a member case managing a matter may also be required to hear and determine interlocutory applications or to otherwise assist the parties to resolve disputes about the progress of the matter. In their most simple form, this will typically include e.g. considering requests for extensions of time to comply with existing directions, or applications dealing with disputed disclosure or pleadings. Such applications can also include applications to partially or wholly dismiss pleadings. An application of this nature was made in these proceedings on 8 November 2024 and is in abeyance pending the resolution of this recusal application. [26] While concerns about apprehended or actual bias are no less relevant because they pertain to a member case managing a matter, it is important to reiterate that my role in the conduct of these proceedings would not typically extend to making final -- 15 of 48 -- 16 determinations on matters of substance. Further, even where I can be asked (on application) to dismiss a pleading or e.g. refuse to order disclosure etc, such decisions can be appealed to the Industrial Court of Queensland (‘the Court’). [27] I have not made any decision in respect of Ms Benjamin’s proceedings that might be characterised as a final determination on a matter of fact or law relevant to the substance of Ms Benjamin’s claims against the respondents. To the extent I have made orders which Ms Benjamin now seeks to impugn, they have been made with her full knowledge and, at least in one instance, have been accompanied by oral reasons made available on her request. [28] Despite Ms Benjamin’s characterisation of these orders (and my other rulings) as giving rise to apprehended or actual bias, Ms Benjamin (who is a lawyer) has failed on each occasion to exercise her right to appeal any order or ruling which aggrieved her. This is so, notwithstanding that Ms Benjamin has had numerous appearances before me between May and October 2024 and ample opportunity to be heard on these matters and to (repeatedly) hear my explanations and reasons when requested. [29] Ms Benjamin must be assumed to have a level of legal competency commensurate with her qualifications, her asserted skill, and her experience. In those circumstances it is more than a little perplexing that, rather than articulate her desire to be heard on matters that concern her, or to press for written reasons explaining orders or rulings, she has (in many instances) made no complaint when the opportunity was available to her. In some instances (discussed below) she has expressed apparent consent to my rulings, only to complain about them four months later. [30] Additionally, having expressed a consistent objection to my order to seal the file in these proceedings, Ms Benjamin has taken no steps to appeal my decision (even if only for the alleged lack of reasons that she says undermine it). Given her legal qualifications and assumed competence, Ms Benjamin must be presumed to have known her appeal rights but to have eschewed them in favour of this application. [31] Notwithstanding these other avenues that she must have known were available to her, Ms Benjamin’s election to challenge my partiality is additionally a matter within her rights as a litigant. Ms Benjamin’s right to bring this application is not doubted. Further, the allegation she now makes about me in respect of actual bias is very serious. In the circumstances, the matters she has outlined giving rise to this recusal application must be given careful consideration.”26 26 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 54. -- 16 of 48 -- 17 [43] Before turning to the “relevant chronology” and “overview”, the Industrial Commissioner directed himself as to the appropriate test which he should apply in determining whether he should continue to manage the case.27 [44] At paragraph [15] of the judgment, the Industrial Commissioner referred to the “double might” test pronounced in Ebner.28 Industrial Commissioner Dwyer’s statement of the test was: “The test for an apprehension of bias requiring disqualification of a judicial officer is not opaque. 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.”29 (emphasis added) [45] The Industrial Commissioner referred to the judgment of Kiefel CJ and Gageler J (as his Honour then was) in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.30 The Industrial Commissioner said: “[16] Recently in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (‘QYFM’), Kiefel CJ and Gageler J (as their Honours then were) identified the inquiry as involving the following steps: Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.” [46] Very recently in SunshineLoans Pty Ltd v Australian Securities and Investments Commission,31 the High Court endorsed the double might test laid down in Ebner and the three step approach explained in QYFM.32 27 Paragraphs [15]-[20]. 28 (2000) 205 CLR 337 at [6]. 29 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 54 at [15]. 30 (2023) 97 ALJR 419 at [38]. 31 [2026] HCA 8. 32 At [40], [42], [59], [60], [104], [105], Steward J in agreement at [126], [146], [171] and [173]. -- 17 of 48 -- 18 [47] There is complaint on appeal as to how the test was applied by the Industrial Commissioner33 but no suggestion of error in the Industrial Commissioner’s statement of the relevant legal principles. [48] It was submitted by Ms Benjamin that a number of irrelevant considerations are identified in the “overview”: (a) the fact that Industrial Commissioner Dwyer is only involved in managing the case;34 (b) the fact that no final determination of any issue has been made or would be made by Industrial Commissioner Dwyer;35 (c) Ms Benjamin is an experienced lawyer;36 and (d) Ms Benjamin has not appealed any of the case management decisions made by Industrial Commissioner Dwyer.37 [49] It is true that Industrial Commissioner Dwyer is only involved in managing the case. That fact colours and puts in proper context the matters about which Ms Benjamin complains. There is no suggestion that the Industrial Commissioner has taken his mere supervisory role as diminishing the requirement that he not only be impartial but be seen to be impartial. At paragraph [26] of the judgment,38 the Industrial Commissioner specifically says, “while concerns about apprehended or actual bias are no less relevant because they pertain to a member case managing a matter, it is important to reiterate that my role in the conduct of these proceedings would not typically extend to making final determinations on matters of substance”. [50] Ms Benjamin is a lawyer. It is not suggested that she was not an experienced lawyer and there has been no appeal from earlier decisions of Industrial Commissioner Dwyer. The inference to be drawn is that the case management decisions that have been made by the Industrial Commissioner have not been controversial enough to 33 Dealt with when considering appeal ground 1(b); paragraphs [88]-[133] of these reasons. 34 Paragraphs [22], [23], [24], [25] and [26]. 35 Paragraph [27]. 36 Paragraphs [28] and [29]. 37 Paragraphs [28] and [30]. 38 Appearing at paragraph [42] of these reasons. -- 18 of 48 -- 19 have attracted appeal. That is, in my view, a relevant matter against which the reasonable bystander would judge the appearance or apprehension of bias. [51] The Industrial Commissioner did not consider the failure to appeal as fatal. It is simply part of the context against which the other submissions are judged. At paragraph [31] of the reasons,39 the Industrial Commissioner specifically said, “Ms Benjamin’s right to bring this application is not doubted”. [52] There is no substance in the complaints about paragraphs [22] to [29] of the judgment under appeal. [53] Ms Benjamin complains about paragraph [75] to [81] of the reasons. Paragraphs [73] to [85] are relevant to her submission: “ii. Concerns about efficient conduct of proceedings [73] Following resolution of the NNPD40 issue I took the opportunity to raise a developing concern I had with respect to Ms Benjamin’s conduct of her proceedings. My concern was developing for two reasons. [74] Firstly, the mention on 23 August 2024 was the second occasion in as many months where I was required to deal with unsolicited interlocutory applications filed by Ms Benjamin, without notice to the respondents, and which transpired to be premature or unnecessary in each case. [75] It had been my impression from the time of the conciliation conference that Ms Benjamin’s demeanour revealed a degree of enmity towards the respondents. That is not a criticism, nor is it surprising or unusual. When the evidence in these proceedings is fully ventilated, any such feeling might even prove to be justified. But the presence of such a powerful emotion can often impair personal judgment and, in litigation, can lead to a combative approach that will invariably add delay and cost to proceedings. As the member responsible for the efficient case management of these proceedings I consider it entirely proper for me to be on guard against such conduct and to warn against it where necessary. [76] Secondly, my concern in this regard was compounded by a submission contained in the first NNPD in which Ms Benjamin contended: 39 Appearing at paragraph [42] of these reasons. 40 “Notice of Non Party Disclosure”. -- 19 of 48 -- 20 …This report will assist in determining or narrowing what (if any) issues are in dispute, potentially avoid the need for any hearing and avoid relying on the Commission using its resources to itself determine questions of fact and each of the elements reprisal (sic) through the use of witnesses and voluminous documentary evidence. (emphasis added) [77] This passage compounded my concerns because I felt that it might be an inadvertent reference to an abuse of process. I thought this because, of all the foreseeable outcomes that might arise from the completion and release of the investigation report, it is difficult to imagine one that would avoid the need for a hearing. [78] In circumstances where Ms Benjamin’s SOFC seeks $3.8 million dollars in compensation and damages, it is impossible to imagine what report findings could lead to either a total capitulation by the respondents to Ms Benjamin’s claim or alternatively, lead Ms Benjamin to forego her claim for $3.8 million. [79] The submission left me vaguely concerned that Ms Benjamin might be engaged in an abuse of process. To be clear: I do not say, nor did I consider or reach any conclusion that Ms Benjamin was engaged in such an abuse of process, only that her submission caused me to be concerned that (amongst other possibilities) she might be, possibly without even realising it. While I acknowledged that she was anxious to gain access to the report and supporting materials, I also felt her application demonstrated a lack of concern for the integrity of the investigation process in pursuit of quick access to information. [80] Accordingly, I counselled Ms Benjamin by simply stating that her comments in the NNPD concerned me and that I expected she would conduct herself generally in these proceedings as a legal practitioner notwithstanding she was self-represented. But beyond that, it was not necessary to descend further into Ms Benjamin’s intentions because the numerous existing barriers already impeding the NNPD applications meant that they were unlikely to proceed at that time. [81] Having raised my concerns and noting her legal qualifications, I then said to Ms Benjamin: …so I’m just raising this with you. You don’t need to respond to any of this Ms Benjamin, but I’m raising it with you to give you a heads up that I’ll be expecting professional standard of conduct in these proceedings from you, and in circumstances where I entirely understand why you’re enthusiastic about advancing this matter and getting disclosure of evidence that you might – or you hope will be relevant to your allegations,… I’d urge you to exercise proper restraint in respect of that, all right? -- 20 of 48 -- 21 [82] Despite my ineloquent language, the plain tenor of my statement to Ms Benjamin contains a balance of empathy for her enthusiasm to advance her matter, tempered with a caution to use restraint in bringing applications only when necessary. In the context of what was now her second premature interlocutory application in as many months, I consider this cautionary observation was necessary and to the benefit of all parties in that, it was intended to encourage the efficient and expeditious conduct of proceedings. [83] Importantly for this recusal application, the transcript clearly reflects that I expressly prefaced these comments to Ms Benjamin as ‘cautionary’. I made no adverse determination about her conduct of the proceedings, and I did not admonish Ms Benjamin. I merely cautioned against conduct that might impede the progress of these proceedings. [84] Unfortunately, Ms Benjamin appeared to miss this point. In her response to me she appeared to consider my caution restricted her from making applications. I immediately dispelled this by saying to Ms Benjamin that she was not restrained from making applications for e.g. disclosure, particularly where she had followed the conventional approach to disclosure i.e. by first seeking disclosure by direct approach to the respondents. The discussion between us ended with Ms Benjamin confirming she accepted the point I was making. [85] At this point in the proceedings, I considered we had addressed the NNPDs and agreed to list them for further mention in late November when I anticipated there would be some update on the availability of the investigation report. In anticipation that we could conclude the mention I invited the parties to raise anything else before we adjourned. It was at this juncture that Counsel for the respondents raised concerns about matters contained in the SOFC recently filed by Ms Benjamin.” (citations omitted) [54] Ms Benjamin filed Notices of Non-Party Disclosure in the course of the proceedings before the Commission. In particular was a notice seeking disclosure of an investigative report (and other documents) said to be in the possession of a firm called Ashdale. Ashdale were investigating the reprisal applications. [55] Ashdale did not produce the documents. It objected on the basis that the report was not yet finalised and that the other documents should not be disclosed as disclosure at that point might prejudice the investigation. -- 21 of 48 -- 22 [56] On 23 August 2024, Ms Benjamin’s matter was mentioned before the Commission. The Notice of Non-Party Disclosure applications were adjourned.41 The applications were not dismissed and the adjournment order was made by consent.42 [57] Paragraphs [73] to [85] concern issues arising from the adjournment of the Non-Party Disclosure applications. [58] In the passages the subject of this submission by Ms Benjamin, the Industrial Commissioner says: (a) that he was concerned about “unsolicited interlocutory applications” which “transpired to be premature or unnecessary in each case”;43 (b) there was a perceived enmity by Ms Benjamin towards the respondents;44 (c) the enmity may be impairing Ms Benjamin’s personal judgment;45 (d) Ms Benjamin’s submission that the disclosure of the report might “potentially avoid the need for any hearing” in the Commission might not be genuine, or might be an abuse of process because the production of the report was unlikely to settle the dispute;46 (e) in that context, the Commissioner raised those concerns with Ms Benjamin;47 (f) in so doing, the Industrial Commissioner said that he was “expecting professional standards of conduct” from Ms Benjamin.48 [59] It is submitted on Ms Benjamin’s behalf that those comments either taken individually or together are such as to give rise to an apprehension of bias. [60] Those submissions should be rejected. 41 Benjamin v Sharp & Ors (Recusal) [2025] QIRC 054 at [56]-[72]. 42 At [72]. 43 At [74]. 44 At [75]. 45 At [ 75]. 46 At [76]-[78]. 47 At [81]. 48 At [81]. -- 22 of 48 -- 23 [61] As a matter of fact, interlocutory applications were brought by Ms Benjamin which transpired to be premature or unnecessary. [62] The Industrial Commissioner’s observations that Ms Benjamin showed a degree of enmity towards the respondents has to be considered in light of what else was said by the Industrial Commissioner including: (a) the observation was not a criticism;49 (b) the enmity of Ms Benjamin towards the respondents was not “surprising or unusual”; and (c) the feeling of enmity may, when the case was finally considered, prove to be justified.50 [63] The point the Industrial Commissioner was making was that he was concerned that Ms Benjamin’s combative approach may lead to delay and the incurring of unnecessary costs, and he wished to guard against that. [64] In my view, that approach is understandable and does not suggest bias. It is a realistic approach taken without criticism of Ms Benjamin, and with full understanding of her position. [65] The comments concerning the Notice of Non-Party Disclosure and the potential for that to constitute an abuse of process are also not objectionable. The Industrial Commissioner explained his concerns and explained the possibility that Ms Benjamin might be committing an abuse of process.51 Being critical of a party or raising concerns as to how the proceedings are being conducted does not of itself give rise to a apprehension of bias. The concern was a reasonable one. It was appropriately raised and it was clear that there were no adverse findings made against Ms Benjamin. [66] Ms Benjamin’s next complaint concerns the passage at paragraphs [101] to [104]. This relates to an allegation which Ms Benjamin makes that Ms Hendy and a judge of the Supreme Court of Queensland, conspired for a corrupt purpose. 49 At [75]. 50 At [75]. 51 At [81]. -- 23 of 48 -- 24 [67] The judge in question heard a case involving the Parole Board. The Parole Board was unsuccessful in the litigation. The judgment was delivered ex tempore in open court. It was not though published on the CaseLaw Website maintained by the Supreme Court Library. Many decisions are not published on the library site. Ms Benjamin alleges that the failure to publish the judgment in that way was pursuant to some agreement of the judge with Ms Hendy so as not to embarrass the Parole Board. [68] Questions concerning this issue and the way it was pleaded arose at the mention before Industrial Commissioner Dwyer on 23 August 2024. The entire passage in the judgment is: “iii. The scandalous pleading [86] Given the nature and purpose of the mention on 23 August 2024, I had not taken the opportunity to read or consider Ms Benjamin’s recently filed SOFC beyond what was necessary to consider the issues relevant to the NNPD applications. Consequently, when Counsel for the respondents raised concerns about some of the matters pleaded in the SOFC it was without notice to the Commission. This context is relevant as it most likely explains my (initial) reaction to the pleadings when brought to my attention. [87] I do not intend to say any more than is necessary about the pleading in question. However, it is necessary to provide some detail to give context to what transpired at the mention on 23 August 2024 and what steps I subsequently took in relation to this matter. [88] Firstly, as a starting point for the relevant context, it must be understood that Ms Benjamin’s proceedings are primarily concerned with alleged reprisal taken in respect of the (alleged) PID she made in April 2022. In very simple terms, the statutory elements that Ms Benjamin must prove are that: • a person or persons caused detriment to her; • because she made a PID. [89] Despite a myriad of facts spread across a lengthy timeline, Ms Benjamin’s complaint is no more complex than those two elements. [90] There appears to be no dispute that Ms Benjamin was unilaterally moved from her role which all but certainly satisfies the first element. There is no dispute that Ms Benjamin made a complaint in April 2022 which Ms Benjamin contends was a PID. Assuming for a moment that subsequent argument establishes that the complaint was a PID, the second element of the relevant statute is mostly satisfied. -- 24 of 48 -- 25 [91] The central issue in dispute then is whether Ms Benjamin’s exit from the Parole Board at the behest of the respondents was because she made the PID. In those circumstances, a question arises as to whether there is any reason to plead details of that PID in her SOFC. There is one possible explanation that I will address later in these reasons. I will first deal with what has been pleaded. [92] The SOFC does not directly or precisely plead the details of the alleged PID. But there are at least parts of the PID allegations that can be plainly inferred from the SOFC. Relevantly, Ms Benjamin’s alleged PID included an allegation of certain conduct concerning the second respondent (who is a legal practitioner) and a Justice of the Supreme Court of Queensland (‘the allegation’). [93] In a somewhat obscure manner, the allegation made by Ms Benjamin in her PID finds its way into her pleadings as an alleged statement by an individual respondent. It is pleaded in a context dealing with the meeting on 8 November 2022 where Ms Benjamin was informed her role at the Parole Board was ending. [94] In her submissions filed on 28 November 2024 Ms Benjamin apparently seeks to emphasize this obscurity by stating: …The name of that particular judicial officer was written in a direct quote from the First Respondent is in the direct evidence of reprisal in the meeting recording of 08 November 2024… [95] While the statement containing the allegation is attributed to an individual respondent, it is done so as a description of a question being put to Ms Benjamin by that respondent, effectively challenging that Ms Benjamin cannot truly believe the allegation she has made and telling her it is a serious matter to allege. [96] The indirect way the allegation is pleaded makes the allegation no less attributable to Ms Benjamin. [97] Ms Benjamin’s allegation, if proven, could arguably be characterised as a conspiracy to pervert the course of justice. It is difficult to imagine a more serious allegation to level against a Justice of the Supreme Court of Queensland and a legal practitioner. It was therefore a matter that was properly raised by the respondents for my attention. [98] On reading the allegation I considered it imperative that I communicate to Ms Benjamin the seriousness of the allegation, and the potential consequences for her professionally if the allegation was later found to be made or published recklessly or maliciously. This was entirely for her benefit. -- 25 of 48 -- 26 [99] On review of the relevant portion of the transcript my inherent appreciation of the objective seriousness of the allegation appears to have very much informed my initial reaction. Any properly trained legal practitioner should know that, while judicial officers are not immune from public criticism or scrutiny, an allegation of impropriety against a Supreme Court Justice is objectively a very serious matter. It is more so when the allegation relates to impropriety in the exercise of judicial functions. [100] The making of such allegations without proper cause can amount to contempt by scandalising the court. The consequences for a legal practitioner who makes allegations of impropriety by a judicial officer can lead to a finding of professional misconduct and have serious consequences for the practitioner. Similarly, with respect to the inclusion of the second respondent in the allegation, a legal practitioner must not make allegations of professional misconduct against another legal practitioner that are not bona fide or without proper basis. [101] Despite my immediate concern about the pleadings, the transcript reflects that my first reaction was to invite Ms Benjamin to respond to the concerns raised by the respondents. It is here that I must concede that the transcript also reflects that I then failed to give Ms Benjamin a proper opportunity to explain the inclusion of the allegation during the initial interaction between us. Instead, the transcript reflects that I proceed to lecture Ms Benjamin (in the abstract) that such pleadings are ‘reprehensible’. While my comments were abstract in nature, I accept that Ms Benjamin undoubtedly would have felt they applied to her pleading. [102] In that brief exchange I accept that my reaction was unfair to Ms Benjamin. But the matter does not end there. [103] Notwithstanding my impetuous initial response, the transcript further reflects that Ms Benjamin plainly and quickly appears to concede she has erred by including the allegation. Reflecting on her responses now, and especially in the context of her current complaint about me, it is possible that her acquiescence on this occasion may have been prompted by the vehement assertions I was making about the generally improper nature of such pleadings. [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. -- 26 of 48 -- 27 [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. [106] Having regard to the whole of the transcript covering this exchange, it is clear that my initial reaction to the controversial pleading was underpinned by a collection of concerns. Not least amongst these was my concern that such a pleading might tend to undermine public confidence in the judiciary. Further, the transcript plainly demonstrates that despite my earnest and emphatic language, my reaction was borne out of significant concern for Ms Benjamin. [107] My concern for Ms Benjamin was heightened because of the observations I had already made about her in respect of the unannounced, premature, or unnecessary interlocutory applications over the preceding weeks. I have already discussed in these reasons my observation of conduct consistent with Ms Benjamin having a latent animosity towards the respondents. To be fair to Ms Benjamin, I hasten to add that it is not unusual for litigants to harbour hostility for their opponents in such matters. This observation is not made as a criticism of Ms Benjamin but simply to explain the basis for my concern. [108] Having now been made aware of the allegation contained in Ms Benjamin’s SOFC, I was concerned that a pattern of unnecessary combative conduct was emerging. I was concerned that this might suggest Ms Benjamin’s judgment and objectivity was somehow impaired. I was concerned that, with her judgment possibly impaired in this way, Ms Benjamin had included the allegation without appreciating the full scope of consequences for her if it later transpired the allegation was made without proper foundation. [109] Further, I could not immediately see that the inclusion of the allegation was relevant in these proceedings. I have reflected further on this. There is one (very limited) basis upon which it might be relevant to raise the allegation in the SOFC. [110] The only circumstances I can envisage that such detail would be relevantly included might be if Ms Benjamin sought to rely on the reference to the allegation as evidence of a causal connection to the loss of her employment and the respondent denied raising it. The respondent’s SOFC pleads that the allegation was raised at that meeting. [111] But even with this fact admitted there are numerous ways the allegation could be dealt with discreetly. That begs the question, why be discreet? A responsible legal practitioner, conscious of -- 27 of 48 -- 28 their duty not to needlessly make statements that tend to undermine public confidence in the judiciary or to scandalise the court, would be expected to only include precise detail of the PID allegation where it was materially relevant to the case being made. [112] In respect of the allegation, it is important to note that I did not make any determination about the legitimacy of its inclusion in the pleadings on 23 August 2024 (or at all). Rather, with Ms Benjamin’s apparent consent, and out of concern for her, I ordered the SOFC containing the controversial pleading be removed from the file and sealed. I also invited Ms Benjamin to reflect on my counsel about the serious nature of such an allegation and gave her leave to file an amended SOFC. [113] Importantly, I expressly stated to Ms Benjamin that my comments were not intended to restrain her, merely that she may wish to reflect on the seriousness of including such material. [114] Ms Benjamin was at all times made aware that she was free to re- plead the allegation, and she did. She filed an amended SOFC on 30 August 2024 that redacted the name of the Justice previously identified. The allegation in the pleading now expands the imputation of impropriety from a single named Justice of the Supreme Court of Queensland to every Justice appointed to that Court. [115] Nothing about our interaction or my comments on 23 August 2024 had the effect of prejudging her case or permanently restricting or preventing Ms Benjamin from presenting her intended pleadings. Indeed, following the filing of the amended SOFC the amended pleading broadens the controversy initially pleaded by Ms Benjamin. Those pleadings and that allegation remain on foot, ready to be heard when this matter reaches that stage of the proceedings.” [69] It can be seen that there is a concession by the Industrial Commissioner at paragraph [101] that he failed to give Ms Benjamin an opportunity to explain her position. Later at paragraph [104], the Industrial Commissioner says that while there was initial conduct by him which may have been unfair to Ms Benjamin, the exchanges with Ms Benjamin returned to an appropriate tone. [70] The submission made on appeal is that the observation at [104] is irrelevant, presumably on the assertion that the damage by that point had already been done and no fair-minded individual would fail to apprehend bias given the matters referred to -- 28 of 48 -- 29 in paragraph [101].52 This incident is relied upon by Ms Benjamin to support recusal ground 2 which is dealt with in paragraphs [179] to [196] of the judgment below. [71] The Industrial Commissioner, rightly in my view, observed that if a judge behaves poorly, that conduct does not necessarily lead to a necessity for recusal.53 All the circumstances must be taken into account and the double might test in Ebner applied. [72] Where there is some conduct, such as that admitted by the Industrial Commissioner in this case, which may raise concerns about bias, later exchanges may be relevant in the final assessment. [73] There is no attack upon the factual findings made by the Industrial Commissioner about the exchange concerning the pleading. The Industrial Commissioner explains that he was concerned about the pleading which made serious allegations against a sitting judge of the Supreme Court of Queensland. He pointed out to Ms Benjamin various things that are clearly correct: (a) an allegation of impropriety against a Supreme Court judge is objectively a very serious matter;54 (b) the making of such allegations without proper cause can amount to contempt;55 and (c) the making of an unfounded allegation might have professional consequences for her.56 [74] The Industrial Commissioner then explained at paragraph [101] of the reasons57 that his comments were intemperate but then the interactions returned to a normal tone and the matter proceeded. The observations made in paragraph [104] of the judgment are not irrelevant and no error is shown in the Industrial Commissioner’s reasons. [75] Paragraph [141] is also the subject of complaint: 52 Set out at paragraph [68] of these reasons. 53 At [182]. 54 At [99]. 55 At [100]. 56 At [100]. 57 Appearing at paragraph [68] of these reasons. -- 29 of 48 -- 30 “[141] Further, I continued to be concerned for Ms Benjamin in that I continued to hold concerns about her judgment and insight into the possible consequences for her if her allegations ultimately proved unfounded. For that reason, I invited Ms Benjamin to make an application for the transcripts. Upon receipt of an application, I was anticipating that orders would be made releasing the transcript to Ms Benjamin albeit structured in a way to ensure they did not e.g. undermine the important purpose of the order sealing the file.” (emphasis added) [76] Given the allegations concerning Ms Hendy and the judge of the Supreme Court of Queensland, a suppression order was made by the Industrial Commissioner. That order has not been the subject of appeal and it has not been subject of an application to vary or vacate it. [77] However, Ms Benjamin wished to have access to some transcripts and that was raised at a mention on 2 October 2024. It is said on appeal that the reference to “the possible consequences”58 is a reference to professional consequences for her and this is a continuation of what Ms Benjamin says is the irrelevant consideration of her status as a legal practitioner. [78] As explained in Ebner, one of the reasons why a recusal application must firstly be made to the judicial officer against whom the allegation of apprehended bias is made, is because the judge is uniquely placed to “…scrutinise their own knowledge and beliefs”.59 [79] Industrial Commissioner Dwyer was aware of Ms Benjamin’s status as a lawyer. He explains in the judgment how that impacted his conduct and motivated his statements. That is relevant to the assessment by the reasonable observer. [80] It is also said that a passage in the transcript of the mention of 8 October 2024 is of some concern and it seems the submission is that the comments made and disclosed by the transcript were irrelevant. [81] The comment that is the subject of this submission is: 58 Paragraph [141]. 59 QYFM v Minister for Immigration (2023) 97 ALJR 419 at 448 per Edelman J. -- 30 of 48 -- 31 “COMMISSIONER: Correct. And it’s on a transcript, but it remains a matter that – sorry, Ms Benjamin, it is very disrespectful for a legal practitioner to shake their head in the negative while I’m talking to them.”60 [82] I see nothing objectionable in that comment. A party’s personal opinion is not relevant and should not be expressed in Court. The party, whether a professional advocate or otherwise, makes submissions to the Court and does not express opinions. Here, Ms Benjamin was apparently, quite disrespectfully, shaking her head in disapproval while the Industrial Commissioner was addressing her about a particular point. Apprehension of bias is not raised by a judicial officer maintaining proper standards of etiquette in the courtroom. [83] Paragraph [158] of the reasons is also submitted to raise concerns: “It is fair to say that by this stage in my experience with Ms Benjamin, I am developing an impression that she feels frustrated by my rulings. For this reason, in closing remarks to her at that mention the transcript reflects that I took time to explain my limited role to Ms Benjamin in the hope that would give her some assurance that, to whatever extent she might be unhappy with my rulings, I would not be dealing with her substantive matter.” [84] It is submitted that this passage shows that “[Ms Benjamin] and the Commissioner clearly have an ongoing inability to communicate beneficially to the resolution of the matter.” [85] The Industrial Commissioner has a role; to supervise the case. That role must be fulfilled fairly and in an impartial manner. That there might be communication difficulties, or a clash of personalities does not prove an apprehension of bias. [86] In my view, none of the factors taken into account by the Industrial Commissioner were irrelevant to the apprehension of bias. None of the things identified, taken either alone or cumulatively demonstrate an apprehension of bias. [87] Ground 1(a), as I have defined it, fails. 60 That passage appears in paragraph [155] of the Industrial Commissioner’s judgment at the top of page 38. -- 31 of 48 -- 32 Ground 1(b): Misapplication of the test; insufficient reasons [88] The structure of Industrial Commissioner Dwyer’s reasons is that: (a) he states the test correctly; (b) he then analyses the relevant circumstances; (c) he then turns to each of the eight grounds of recusal and considers those; and (d) he states in relation to each of the grounds of recusal that no apprehended bias is established. [89] Ms Benjamin submits that the way the Industrial Commissioner draws the final conclusions to the effect that no apprehended bias is established shows a misapplication of the Ebner test and demonstrates a failure to give proper reasons. [90] There is no doubt that the obligation to give reasons is an integral part of the exercise of the judicial function. The failure to give reasons may constitute jurisdictional error.61 Whether a particular statement of reasons is or is not sufficient, must be judged in all the circumstances including the jurisdiction being exercised, and the particular matter the subject of the decision.62 [91] The adequacy or otherwise of a statement of reasons is often considered in light of the identified purposes for which reasons are given. Those reasons were identified by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd63 and were summarised by me in Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2)64 as: “1. it enabled the parties to appreciate the extent to which their arguments have been understood and accepted or rejected as the case may be; 2. it shows the basis of the judge’s decision; and 61 Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604 at [46]. 62 DL v The Queen (2018) 266 CLR 1 at [32], Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 262 per Fitzgerald P, Davies and McPherson JJA and Housing Commissions (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 381; Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131 at [19]. 63 (1987) 10 NSWLR 247. 64 [2021] ICQ 003 at [90] and [91]. -- 32 of 48 -- 33 3. it provides a precedent.”65 [92] The detail to which reasons must be expressed in order to properly discharge those functions is often difficult to define. [93] In Beale v Government Insurance Office of NSW,66 Meagher JA identified “fundamental elements” of a statement of reasons. They were: (a) the need to refer to relevant evidence; (b) to set out material findings of fact and any conclusions or ultimate findings reached; and (c) the process of reasoning by which the law is applied to the facts found should be articulated.67 [94] However, as Muir JA observed in Drew v Makita (Australia) Pty Ltd,68 the “fundamental elements” which were identified in Beale are a description of the considerations which may assist in the assessment of the adequacy of reasons. They do not constitute a statement of principle as to what a statement of reasons must contain.69 Muir JA, following Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd70 required consideration as to whether the statement of reasons fulfilled the purpose of giving reasons, considered against the nature of the issues being determined in the particular case. [95] It is not appropriate to overcritically analyse a statement of reasons. The reasons must be looked at sensibly to discern, if possible, why the orders were made. As apparent from the analysis of the reasons, they are coherent and sufficient. [96] Recusal ground 1 concerns the removal of some evidence filed for a particular directions application. Recusal ground 1 is dealt with at paragraphs [169] to [178] of the Industrial Commissioner’s judgment: 65 See also DL v The Queen (2018) 266 CLR 1 at [32] [1] See also the judgment of Muir JA in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [58]-[64]. 66 (1997) 48 NSWLR 430. 67 At 443. 68 [2009] 2 Qd R 219. 69 At [64]. 70 [1983] 3 NSWLR 378 at 386. -- 33 of 48 -- 34 “Ground One – Removal of the evidence filed for the timetable directions application [169] The reasons for the removal of the application, affidavit, and submissions (filed 27 June 2024) from the file are outlined earlier in these reasons. It was a file maintenance decision that I made primarily to minimise unnecessary hard copy material being added to a hard copy file. The application and supporting material were unsolicited and ultimately not dealt with. The documents in question served no purpose on the file. [170] In these circumstances it is impossible to appreciate how a fair- minded lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the resolution of the question I am required to decide. [171] Firstly, the matter was listed on 9 July 2024 in response to the material being filed. The order removing the materials was made after the mention on 9 July 2024 i.e. after Ms Benjamin’s application had been discussed. The order was not made by stealth. A copy was sent to Ms Benjamin, and she was entirely at liberty to notify an objection or even appeal. She did neither. [172] Indeed, despite numerous mentions of this matter, Ms Benjamin raised no complaint about this decision until November 2024, some four months later. [173] Secondly, there is no prejudice to Ms Benjamin arising from my order. The material removed was an interlocutory application, an affidavit, and submissions. The application essentially sought directions for the filing of SOFCs. A direction to that effect was made following the mention on 9 July 2024. The affidavit was, at this stage in proceedings, superfluous. [174] Additionally, even if the affidavit did contain matters of ‘vital’ importance, the order removing it does not prevent Ms Benjamin from simply refiling it. [175] In fairness to Ms Benjamin, it might be that she has delayed her complaint about my actions in this instance because she might consider my order has subsequently taken on an appearance of bias in the context of my later dealings with her matter. I will address my overall conduct of the matter later in these reasons. [176] Considering the three stages for consideration of recusal set out in QYFM it seems from her submissions that Ms Benjamin contends that I ordered the removal of the documents in question intentionally ‘to prevent negative impact on the respondents and member of the Supreme Court’. Ms Benjamin’s contention is, by her use of the term ‘lends to the conclusion’, speculative. [177] Nevertheless, it is a serious allegation to suggest I have intentionally removed filed documents for such a purpose. The asserted ‘logical connections’ contained at [86] of Ms Benjamin’s -- 34 of 48 -- 35 submissions of 28 November 2024 are utterly without factual foundation and anything but logical. [178] But given the facts I have outlined above explaining the relevant sequence of events, it goes without saying that I consider it entirely unreasonable that a fair-minded lay observer would apprehend bias.” (citation omitted) [97] Ms Benjamin says that paragraph [178] shows a misapplication of the “double might test”. The Industrial Commissioner speaks in [178] of a fair-minded, lay observer and concludes that it would be unreasonable that the hypothetical lay observer “would apprehend bias”. Ms Benjamin says the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.71 [98] Therefore, Ms Benjamin submits, the Industrial Commissioner has stated the test too highly. [99] As the Industrial Commission stated, the High Court in QYFM v Minister for Immigration,72 explained that the application of the Ebner test requires three steps. These appear at paragraphs [16] of the judgment under appeal and paragraph [45] of these reasons. Ms Benjamin submits that paragraph [178] not only bespeaks error in relation to the test but also does not contain sufficient reasoning as to how the three- step approach has been fulfilled. [100] In recusal ground 1, Industrial Commissioner Dwyer identified the removal of the material as the factor said to give rise to the apprehension of bias.73 He had earlier74 outlined the circumstances surrounding the removal of the material from the file. [101] The Industrial Commissioner at paragraph [170] said: “In these circumstances it is impossible to appreciate how a fair-minded lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the resolution of the question I am required to decide.” (emphasis added) 71 Charisteas v Charisteas (2021) 273 CLR 289 at 296. 72 (2023) 279 CLR 148. 73 Paragraph [169]. 74 Paragraph [47], [55]. -- 35 of 48 -- 36 [102] In that paragraph, the Industrial Commissioner correctly states the double might test. He then goes on to consider the impact of the removal of the material. Although this part of the judgment was not expressed in terms of the second step in the application of the Ebner test, it is clear that he has found that there is no logical connection between the removal of the material and any apprehension that he would not decide the question on its merits. [103] The Industrial Commissioner then at paragraph [176] said this: “Considering the three stages for consideration of recusal set out in QYFM it seems from her submissions that Ms Benjamin contends that I ordered the removal of the documents in question intentionally ‘to prevent negative impact on the respondents and member of the Supreme Court’. Ms Benjamin’s contention is, by her use of the term ‘lends to the conclusion’, speculative.” (citation omitted) [104] Paragraph [178] of the reasons is intended by the Industrial Commissioner to be an expression of the third limb of the application of the Ebner test. Even if it was established that the Industrial Commissioner had misapplied the test, it is obvious that the distinction between “might” or “would” apprehend bias did not affect the judgment on the issue. The correct test is stated at paragraph [170] and the whole tenor of the reasoning between paragraphs [169] and [168] is emphatic. Read sensibly, the Industrial Commissioner held that the removal of the evidence from the file raised no reasonable apprehension at all. [105] Recusal ground 2 concerns allegations about the Industrial Commissioner’s conduct in the courtroom which was said to be intended to intimidate, bully or embarrass Ms Benjamin. [106] The complaint here concerns paragraph [196] of the judgment which says: “There is no reasonable basis upon which a fair-minded lay observer would arrive at the conclusions contended for by Ms Benjamin. In all of the circumstances relevant to this ground, there is no reasonable basis to conclude bias at all.” (emphasis added) [107] Again, the Industrial Commissioner refers to “a fair minded lay observer” who “would” arrive at a conclusion of apprehended bias. Again, it is submitted that the test is expressed too highly. Again, that statement must be looked at in context. -- 36 of 48 -- 37 [108] By the time recusal ground 2 is reached for consideration in the judgment, the Industrial Commissioner has stated the Ebner test and the three-part application of that test as stipulated in QYFM. [109] At paragraph [179] of the judgment, the Industrial Commissioner identified the facts said to give rise to the apprehension; inappropriate hostile demeanour. That allegation is then analysed,75 by reference back to factual findings made earlier in the judgment.76 He then analysed facts and considerations relevant to the logical connection between the factor and the apprehension of bias. He said that he did not, as was alleged, make a determination about Ms Benjamin’s credibility at [192].77 There was no substantive decision reached adverse to Ms Benjamin’s proceedings.78 The removal of the material did not deny Ms Benjamin the right or opportunity to rely upon the documents at a hearing. [110] At paragraph [195] of the judgment, the Industrial Commissioner observed “these allegations are entirely unsupported by any evidence and are as illogical as they are speculative”. Given such an emphatic factual finding, which is not challenged on appeal, any misstatement of the test in paragraph [196] obviously made no difference to the ultimate finding.79 [111] Complaint is made about the conclusion reached in paragraph [204] which is the final paragraph in the judgment concerning recusal ground 3. Recusal ground 3 alleged that the Industrial Commissioner placed excessive pressure on Ms Benjamin to engage legal representation. [112] Paragraph [204] is in these terms: “In the circumstances Ms Benjamin’s perception of my words as ‘excessive pressure’ to obtain legal representation is impossible to reconcile with the objective facts. It would simply not be open on these facts for a fair-minded lay observer to consider I would not deal with her matter fairly.” 75 Paragraphs [180], [188]. 76 Paragraphs [74]-[115]. 77 An adverse finding of credibility is not fatal; SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8. 78 At [193]. 79 Hossain v Minister for Immigration (2018) 264 CLR 123. -- 37 of 48 -- 38 [113] Dealing with recusal ground 3, the Industrial Commissioner clearly appreciated that the factor which was identified as relevant to the Ebner analysis was the application of pressure on Ms Benjamin to engage legal representation.80 [114] After analysing the evidence of the alleged “excessive pressure”, the Industrial Commissioner concluded81 that there was no evidence to support such an allegation. It follows then that Ms Benjamin’s allegations fall at the first hurdle. The factor which is alleged which might lead a judge to resolve the question other than on its merits, has not been proved. Therefore, any alleged error in the articulation of the final question becomes irrelevant. [115] In my view, there is no error in paragraph [204] in any event as the double might test is referred to in paragraph [203]: “Ms Benjamin goes on to contend that ‘a fair-minded lay observer might reasonably apprehend that Commissioner Dwyer might not bring an impartial and unprejudiced mind after he has repeatedly insisted that one party be legally represented’. There is no evidence on any transcript (or at all) that I ‘insisted’ Ms Benjamin obtain legal representation either repeatedly or at all. That submission is unsustainable on the facts.” (emphasis added) [116] Complaint is also made about paragraph [213] of the Industrial Commissioner’s judgment: “When considering the full context, the logical connection required to give rise to the reasonable apprehension of bias evaporates. There is no reasonable basis where a fair-minded lay observer would conclude I would not deal with the matter fairly in these circumstances.” (emphasis added) [117] Again, the submission is that the test has been misstated. [118] Paragraph [213] is the concluding paragraph to the Industrial Commissioner’s consideration of recusal ground 4. This relates to orders made by the Industrial Commissioner sealing the file. This step was taken because of the allegation against the judge of the Supreme Court. 80 Heading “Ground Three – Excessive pressure on Ms Benjamin to engage legal representation” factual analysis at paragraphs [198]-[203]. 81 Paragraph [204]. -- 38 of 48 -- 39 [119] Ms Benjamin’s complaint is that those orders were made without her being heard. [120] Recusal ground 4 was dealt with by the Industrial Commissioner by firstly observing that he had the power to make the orders of his own motion ex parte.82 He then went on to observe that after the orders were made the matter was listed for mention and the parties were given an opportunity to be heard on the question. The Industrial Commissioner was prepared to receive submissions on whether the order should be set aside. Ms Benjamin elected not to make submissions and has not brought any application to vary the order or set it aside.83 [121] The Industrial Commissioner then ruled that in those circumstances there was no logical connection between the making of the order sealing the file and any apprehension that he would decide matters relevant to the case otherwise and on their merits.84 At paragraph [213], the Industrial Commissioner finds that “…the logical connection required to give rise to the reasonable apprehension of bias evaporates”. Ms Benjamin has failed therefore to satisfy the second limb of the QYFM test. It is therefore appropriate for the Industrial Commissioner to say “there is no reasonable basis where a fair minded lay observer would conclude I would not deal with the matter fairly in these circumstances”. The test has not been misstated. [122] Paragraph [214] is the subject of complaint. That paragraph relates to recusal ground 5, which is the alleged refusal of the Industrial Commissioner to allow access to recordings and transcripts. Recusal ground 5 is dealt with in two paragraphs of the judgment:85 “Ground Five – Refusal to allow access to proceeding recordings and transcripts [214] The premise of this ground is factually incorrect. The transcript excerpts set out above confirm that Ms Benjamin has not been refused access to transcripts. She was repeatedly invited to apply for them, and she has failed to do so. The excuse that Ms Benjamin (now) offers is that I would not deal with those applications fairly. This presumes bias that has not been proven. It is an illogical and circular argument that cannot be sustained. 82 At [207]. 83 At [211]. 84 At [212]. 85 Paragraphs [214] and [215]. -- 39 of 48 -- 40 [215] This ground warrants no further consideration.” [123] Paragraph [214] of the judgment refers to Ms Benjamin’s assertion that “[the Industrial Commissioner] would not deal with those application fairly.”86 The statement in those terms does not show error given that the factual basis of the allegation has not been established. [124] At paragraph [228] of his judgment, the Industrial Commissioner concludes his consideration of recusal ground 7: “In those circumstances that I consider that there is no reasonable basis upon which a fair-minded lay observer would consider I would not decide the matter fairly.” (emphasis added) [125] Recusal ground 7 concerns what is said to be a veiled threat that Ms Benjamin will be investigated by professional regulatory bodies concerning the way she has conducted the proceedings. [126] After referring to the relevant passage of the transcript of a mention which occurred on 2 October 2024,87 the Industrial Commissioner made various observations88 and then observed this: “[227] But even disregarding my subjective intention, in my view the transcript shows that there is no basis upon which a fair-minded objective observer would consider my language to be a threat, veiled or otherwise. It follows that the alleged ‘logical connection’ that I was attempting to intimidate or threaten Ms Benjamin is also not supported by the transcript.” [127] The Industrial Commissioner has found that the language was not threatening and therefore the factual basis of recusal ground 7 fails. [128] In those circumstances, no error is shown by paragraph [228]. [129] Recusal ground 8 concerns what Ms Benjamin describes as excessive intervention by the Industrial Commissioner and alleged attempts by him to persuade her to consent to orders. The allegations stem from exchanges which occurred during mentions on 23 August 2024 and 25 October 2024. 86 Emphasis added. 87 Paragraph [220]. 88 Paragraphs [221]-[226]. -- 40 of 48 -- 41 [130] The Industrial Commissioner considered the various comments relied upon by Ms Benjamin and then concluded: “[244] Ground eight is entirely misconceived. There is nothing contained in the transcript that supports Ms Benjamin’s contentions of unfairness with respect to the manner in which I dealt with her at this mention. There is no legitimate test or sound logic that could be applied to produce a conclusion that a fair-minded lay observer would reasonable conclude I would deal with the matter unfairly.” [131] Again, it is said that the test is misstated. However, the Industrial Commissioner has found that the factual basis of recusal ground 8 has failed and there is therefore no error shown in paragraph [244]. [132] It was submitted on Ms Benjamin’s behalf that the conduct of the Industrial Commissioner must be looked at cumulatively. That is undoubtedly so. It was submitted that the Industrial Commissioner overemphasised on various occasions the relevance, if any, of Ms Benjamin being a legal practitioner and the possibility of there being some professional consequences upon Ms Benjamin given the nature of the allegations she made in the proceedings. [133] It is true that the Industrial Commissioner emphasised the gravity of the allegations and the potential professional consequences to Ms Benjamin on numerous occasions. That is unsurprising. As observed in Ebner, applications for recusal are firstly made to the judicial officer against whom the allegation of apprehended bias is made because the judicial officer is uniquely positioned to know all the relevant circumstances including their own thought processes. The allegations made by Ms Benjamin were very serious and the professional ramifications for Ms Benjamin, if she failed to prove them, could be dire. That the Industrial Commissioner was at pains to point these things out to Ms Benjamin is hardly surprising. It does not, in my view, give rise to an apprehension of bias. Ground 1(c): denial of procedural fairness [134] Ground 1(c) was not subject of oral submissions by counsel for Ms Benjamin. -- 41 of 48 -- 42 [135] The complaint made in writing is that the Industrial Commissioner made the suppression order and that has denied Ms Benjamin access to the transcripts of the mentions which she says would enable her to make out her case of apprehended bias. [136] As already observed, the suppression order was made in Ms Benjamin’s absence. However, she was advised of the making of the order and of her right to submit that the order should be vacated or varied. Although Ms Benjamin has complained about the order from time to time, she did not appeal it to this Court and she did not seek to have the question of its correctness reagitated in the Commission. Therefore, as between the parties, the order was unchallenged.89 [137] The making of the suppression order itself is alleged by Ms Benjamin to demonstrate an apprehension of bias. That position is reflected in recusal grounds 4 and 5. Ms Benjamin’s submissions in relation to that have been rejected. [138] Ground 1(c) seems to raise the contention that Ms Benjamin has been denied procedural fairness in the conduct of the recusal application. The suppression order was made. It was an order made within jurisdiction. The fact that the order may have made the prosecution of the recusal application more difficult for Ms Benjamin is not a matter relevant on the current appeal. It is just a consequence of the order. Ground 2: Alleged factual errors [139] Appeal ground 2 was not the subject of oral submissions by counsel for Ms Benjamin. Appeal ground 2(i) alleges that the Industrial Commissioner made a factual error by concluding that Ms Benjamin’s application was that he recuse himself upon allegations of both apprehended and actual bias. Ms Benjamin says that she never alleged actual bias against the Industrial Commissioner. [140] Paragraph [1] of the reasons state: “By email dated 20 November 2024, and further supporting material filed 28 November 2024, Ms Louise Benjamin, the complainant, seeks an order that I recuse myself from further involvement in these proceedings by reason of apprehended and actual bias.” 89 Although now it has been revised; Order 10 July 2025. -- 42 of 48 -- 43 [141] Ms Benjamin says this matters because the legal test for proving bias is higher and more difficult for her than proving apprehended bias. [142] Ms Benjamin probably does allege actual bias in substance. One only has to have regard to recusal ground 1. Her allegation there is that the removal of material from the file was motivated by the Industrial Commissioner not wishing the material to impact negatively upon the respondents or the judges of the Supreme Court. That is in effect an allegation that the Industrial Commissioner has deliberately compromised Ms Benjamin’s position in favour of the position of others. That, in my view, is an allegation of actual bias. [143] The Industrial Commissioner has applied the apprehended bias test to each of the grounds of recusal. Therefore, if the Industrial Commissioner has erred in finding that actual bias is alleged, that error has made no difference to his consideration of the application for recusal. [144] Appeal ground 2(ii) alleges that the Industrial Commissioner has found that there was no “evidence of conduct in the courtroom that would intimidate, bully or embarrass…”. She points to paragraphs [195] and paragraph [227]90 as containing the error. Paragraph [195] provides: “[195] Ms Benjamin contends that my actions on 23 August 2024 were bullying or intimidating in nature, and this is (as she speculates) ‘illustrative of some kind of interest in the outcome of the proceedings’ or ‘some desperation to protect all judicial officers of the Supreme Court at all costs’. Again, these are serious allegations which, if true, would undoubtedly lead to a conclusion of bias (or worse). These allegations are entirely unsupported by any evidence and are as illogical as they are speculative.” (citation omitted) [145] Paragraph [195] forms part of the Industrial Commissioner’s consideration of recusal ground 2, which concerns conduct in the courtroom intended to intimidate, bully or embarrass Ms Benjamin. The Industrial Commissioner identifies the passages complained about and then at paragraph [195] explains Ms Benjamin’s submission that the conduct was motivated by particular desires of the Industrial Commissioner. 90 Which appears at paragraph [126] of these reasons. -- 43 of 48 -- 44 Of those allegations of malicious motivation, the Industrial Commissioner says “these allegations are entirely unsupported by the evidence and are as illogical as they are speculative”. [146] It is not said in paragraph [195] or otherwise in the passage of the judgment concerning recusal ground 2 that there was no evidence upon which to raise concerns of intimidation etcetera. The Industrial Commissioner specifically says at paragraph [193] “…even if my initial reaction to the allegation was objectively considered excessive…”. The Industrial Commissioner identifies the statements about which Ms Benjamin complains and explains them. There is no factual error made. [147] Paragraph [227] of the Industrial Commissioner’s judgment has already been the subject of analysis.91 The Industrial Commissioner, in applying the Ebner test draws the conclusion that “there is no basis upon which a fair minded objective observer would consider my language to be a threat, veiled or otherwise”. That comment takes into account the explanation which the Industrial Commissioner gave for the comments.92 No factual error is shown. [148] Appeal ground 2(iii) concerns recusal ground 5 (refusal to allow access to proceeding recordings and transcript) and recusal ground 6 (refusal to give written reasons for the suppression order). Ms Benjamin says there is an error in paragraph [214]93 and also in paragraph [219] because she says Exhibit LVB-04 of her affidavit sworn 28 November 2024 shows that she did request written reasons for the decision to impose the suppression order. Paragraph [219] provides: “[219] Ms Benjamin received oral reasons on 2 October 2024. She did not, at that time or thereafter, press for written reasons. Even if she had, I had a discretion not to provide them when I had already given reasons on the record. This ground warrants no further consideration.” [149] Paragraph [214] does not relate to this complaint. There the Industrial Commissioner does not say that Ms Benjamin did not request written reasons. 91 Paragraph [126] of these reasons. 92 See paragraphs [220]-[226]. 93 Which appears at paragraphs [122] of these reasons. -- 44 of 48 -- 45 [150] In paragraph [217], the Industrial Commissioner does not positively say that Ms Benjamin did not make a request that the reasons be provided in writing. What he says is that he cannot find a document or statement where that is requested. No doubt that is true. However, the Industrial Commissioner went on in paragraph [217] to accept that he may have overlooked the document and points out94 that reasons were given orally on 2 October 2024 and Ms Benjamin did not avail herself of the opportunity to be heard on the matter later. [151] If the Industrial Commissioner did err then nothing flows from it. [152] Appeal ground 2(iv) complains that there has been a refusal to allow access to proceeding recordings and transcripts. It is true that the suppression order is a bar to access. However, Ms Benjamin was invited to apply for access and indeed for the dissolution or variation of the suppression order. She did not do so and that is the context in which the Industrial Commissioner made the finding that she had not been refused access. [153] Appeal ground 2(v) concerns recusal ground 3 which complains of excessive pressure on Ms Benjamin to engage legal representation. Ms Benjamin seemingly attacks the finding made at paragraph [204] 95 of the Industrial Commissioner’s judgment. There, after dealing with various factual matters, the Industrial Commissioner concludes that there was not “pressure” upon Ms Benjamin to obtain legal representation. [154] That finding is an inference drawn upon facts which the Industrial Commissioner has identified. That inference was clearly open to the Industrial Commissioner to draw and I would not draw a different inference. Conclusions [155] All grounds of appeal have failed and consequently the appeal ought to be dismissed. I will make directions for the exchange of written submissions on the question of costs. 94 [216]. 95 Set out at paragraph [112] of these reasons. -- 45 of 48 -- 46 [156] In those submissions as to costs, I require the respondents to specifically identify what interest they considered they had in defending the recusal application and subsequent appeal and how their actions defended that legitimate interest. [157] The question arises because of the way in which the appeal was defended by the respondents. [158] Each party to litigation has an interest in having the proceedings determined by a tribunal which is neither actually nor apparently biased against them. [159] That is a fundamental principle which, as was explained in the joint judgment in Ebner, can be tracked back centuries.96 A decision-maker who proceeds to exercise power when there is an apprehension of bias commits jurisdictional error without any inquiry into materiality being necessary.97 However, no party has a right to have the proceedings heard by a particular member of a court or tribunal. [160] In the context of the present dispute, Ms Benjamin had a right to have Industrial Commissioner Dwyer removed from the case if she could establish apprehended bias. The respondents had no right to have Industrial Commissioner Dwyer hear the case. Indeed, because of the docket system operated by the Commission, Industrial Commissioner Dwyer was never going to hear the case in the sense of finally determining the parties’ rights. The argument was merely about whether or not the Industrial Commissioner managed the case. [161] That is not to say that when a party to the proceedings makes application for a judge to recuse themselves, another party cannot take the position of contradictor. That other party might for instance be inconvenienced in some way if the recusal application is successful. Delay may be suffered. Extra expense might be incurred. [162] Sometimes another party may support a recusal application as the party wishes to avoid a decision which is liable to be appealed. Sometimes a party might not take a position. Sometimes a party might just make submissions on matters of law, or to point out factual aspects of the allegations. 96 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [3]. 97 MZAPC v Minister for Immigration (2021) 273 CLR 506 at [33]. -- 46 of 48 -- 47 [163] During the hearing of the appeal, I learnt that the respondents had filed an application with the Commission seeking to have Ms Benjamin’s case summarily dismissed. I was told it was likely that application would ultimately be heard by Industrial Commissioner Dwyer. [164] I indicated to the parties that it might be some time before I could give judgment in the appeal and that it would be appropriate for me to make arrangements for that application to be heard by a Commissioner other than Industrial Commissioner Dwyer. Astonishingly, in my view, Ms Marr, who appeared for the respondents, actively opposed that course. In other words, she actively opposed the listing for determination an application which could potentially determine the entire case in the respondents’ favour.98 [165] This exchange occurred: “HIS HONOUR: Can I just ask this, and this is a little bit off kilter, but these proceedings have been on foot for some time and it’s in everybody’s interest, I would think, for it to be progressed. Is there any reason why the application for strike-out couldn’t be sent to another Industrial Commissioner. MR COOK: I see no reason why it couldn’t. HIS HONOUR: Ms Marr? MS MARR: I see no reason why it should. HIS HONOUR: No. Is there any reason why it shouldn’t? MS MARR: Because the fundamental principle that underpins why an apprehended bias application is an exception fading to make--- HIS HONOUR: Yes, but this isn’t before -- MS MARR: ---is because you don’t get --- HIS HONOUR: This isn’t before – the application for strike out has been adjourned. You’ve got to look at ways to advance this so he can continue to deal with it, but surely to goodness, just to get it on. MS MARR: Your Honour, what that does, in my submission, is encourage the very thing---” (emphasis added) 98 Transcript 1-38. -- 47 of 48 -- 48 [166] The “very thing” can only be the exercise by a citizen of a right to seek to have Industrial Commissioner Dwyer recuse himself on grounds which, even if unsuccessfully maintained, were obviously genuinely held concerns. No party has suggested either before Industrial Commissioner Dwyer, or this Court, that the application or appeal was vexatious.99 [167] Later during the hearing, I advised the parties that I had arranged for Deputy President Merrell to hear the strike out application.100 Ms Marr informed me “I maintain my objection.” The respondents are therefore positively objecting to their own application being heard expeditiously. [168] The exchanges raise serious questions as to the respondents’ conduct of the defence of both the recusal application and the appeal. If a costs application is to be made by the respondents, then an explanation of that conduct is relevant. [169] I make 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 written submissions and material filed without oral submissions. 99 Transcript 1-38. 100 The application has not been determined: Benjamin v Sharp & Ors (No 2) [2026] QIRC 117 and see paragraph [12] of these reasons. -- 48 of 48 --