A Brisbane lawyer has been warned of the risks of losing independence when representing themselves in a matter before the Queensland Industrial Relations Commission (QIRC).
Late last year, Louise Benjamin applied for Brisbane Industrial Commissioner Dwyer to recuse himself in an employment dispute with the state’s Parole Board, alleging apprehended and actual bias.
Ms Benjamin – who seeks $3.8 million in compensation and damages – was refused her recusal application, with Commissioner Dwyer making an order to seal the file of the proceedings due to Ms Benjamin’s pleadings which contained “scandalous material impugning the integrity of a judicial officer, another legal practitioner and the Supreme Court of Queensland”.
In his 59-page decision delivered on 21 February, Commissioner Dwyer said the “pleading that is central to the recusal application is attended by significant controversy”, and it would be “inappropriate for the precise detail of that pleading to be particularised”.
He raised concerns about Ms Benjamin’s pattern of unnecessary combative conduct and her enmity toward the respondent, which he said might impair personal judgment and so, affect the efficiency of the proceeding. He suggested she engage representation.
Ms Benjamin’s recusal application relied on eight grounds. One alleged actual bias, asserting that Commissioner Dwyer had a “vested interest in the outcome of the proceedings” in that he was desperate to “protect all judicial officers of the Supreme Court at all costs”.
The other seven grounds made contentions including that the Commissioner engaged in conduct intended to intimidate, bully or embarrass her; exerted excessive pressure on her; breached natural justice and procedural fairness; threatened her; and engaged in excessive intervention.
The employment matter first came before Commissioner Dwyer in May 2024, when the dispute over Ms Benjamin’s removal from her position in 2022 could not be resolved in the Queensland Human Rights Commission.
Commissioner Dwyer said all case management orders he had made in the matter had been made with Ms Benjamin’s full knowledge.
“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,” he said.
“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.
“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.”
This included consistently objecting to his order to seal the file in the proceedings, but taking no steps to appeal it, he said.
Commissioner Dwyer said Ms Benjamin’s submissions filed in November contained an allegation, which “if proven, could arguably be characterised as a conspiracy to pervert the course of justice”.
“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,” he said.
The order to seal the file was made because “the prospect of publication of an allegation that was both scandalous and scant in detail was a matter of concern”.
“The need for swift and independent interim action to seal the file was prompted by the fact that the amended allegation was: very serious; not accompanied by any particulars at all; and arguably not relevant to the matters in issue.
“Scrutiny of judicial conduct is entirely proper where bona fide allegations arise. It is of vital public interest that there be faith in the judiciary and the justice system.
“But it is of equal importance that such faith should not be casually undermined by allegations that are misconceived, reckless, or even malicious.
“I do not say that Ms Benjamin’s amended allegation falls into any of these categories, but in the absence of particulars and apparent relevance, I consider it would be both premature and irresponsible to allow the amended allegation to be on the public record.”
In October, Commissioner Dwyer warned Ms Benjamin of the dangers of self-representation and suggested she “may be better placed having somebody a little more objective guide (her) through the process”.
He said Ms Benjamin’s recusal application made in November “revealed a vast chasm between her perception of the events in proceedings between July and November 2024, and the objectively demonstrable reality evident from the various transcripts of proceedings”
He said there was no reasonable basis upon which a fair-minded lay observer would arrive at the conclusions of bias.
He said Ms Benjamin’s assertions “left me pondering as to exactly how out of her depth Ms Benjamin really was” and “the extent to which Ms Benjamin’s personal perceptions are distorted”.
“Ms Benjamin contends, as a basis for a conclusion of bias, that I determined she was dishonest, breached the Australian Solicitors Conduct Rules, and made a determination about her credibility …Those assertions are patently wrong,” he said.
He said her allegations about him having a vested interest in protecting reputations of the judiciary “are entirely unsupported by any evidence and are as illogical as they are speculative”.
He said they also revealed Ms Benjamin’s “ongoing and concerning lack of understanding of her professional duties as a lawyer”.
“My concerns about the allegation contained in the SOFC and my decision to seal the file have nothing to do with individual reputations of those Justices,” he said.
“At its core, the singular motive for my decisions and actions in this matter has been to protect public confidence in the judiciary against a serious allegation that is yet to be particularised and tested.”
Commissioner Dwyer said Ms Benjamin was understandably distressed by the events leading to her removal from the Parole Board.
“Her distress is undoubtedly compounded by the rigours that accompany the litigation that she is now undertaking. Even her legal qualifications cannot shield her from the inevitable strain,” he said.
“Ms Benjamin’s personal distress and the vulnerabilities that they uniquely trigger in her are an unfortunate feature of being involved in a dispute of this type.
“As sympathetic (and concerned) as I am about the effect of this on her judgment, having reviewed all of my conduct of this matter I am entirely satisfied that Ms Benjamin has been treated fairly and without any hint of bias at every stage.
“In those circumstances, I must discharge my duty to sit. I will not recuse myself.”
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