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Although unsuccessful in a recusal application, an ex-parole board lawyer has avoided a costs order due to a commissioner’s “unfair” comments about her discrimination complaint.
Justice Peter Davis, president of the Industrial Court of Queensland, said it would not be in the interests of justice to order that Louise Benjamin pay the costs of an unsuccessful application to have a member of the Industrial Relations Commission recused.
Benjamin, the former acting director of the Queensland Parole Board’s legal services unit, has alleged she was ousted from the role for disclosing that her superior had allegedly engaged in “certain official misconduct” with an unnamed Supreme Court justice.
Following “adverse comments” made by commissioner John Dwyer in August 2024, Benjamin applied to have him recuse himself.
This and an appeal that followed were dismissed.
The respondents, including the Parole Board and State of Queensland, submitted that they should have their costs because the matters raised in the appeal were complex, and they were successful on appeal and in some of the underpinnings of Benjamin’s submissions.
While these points were correct, Justice Davis said there were issues worth scrutiny, including an admission by Dwyer that his early comments to Benjamin’s complaint were inappropriate.
“On reflection, I can appreciate that my initial reaction to the allegation may have deprived Benjamin an opportunity to explain the controversial pleading,” Dwyer said in a judgment dismissing the recusal.
“But it is important to note that, despite the unfairness of my initial reaction, I was expressing views about such pleadings generally … Further, the transcript reflects a swift segue to more measured and appropriate interactions thereafter.”
Justice Davis said a detailed analysis of Dwyer’s conduct and his application of the law ultimately led to the conclusion that Benjamin had failed to make out her grounds of appeal.
He added that a citizen was entitled to have their case heard by a tribunal which “both appears impartial and is impartial”.
“That is a fundamental tenet of the justice system.
“The respondents did not suggest that the appeal was vexatiously brought. The appeal failed on its merits but only after extensive argument and detailed analysis by the court.
“The appeal was not, in my view, frivolous,” Justice Davis said.
Citation: Benjamin v Sharp & Ors (No 2) [2026] ICQ 6.
