Queensland v Parer[2016] ICQ 13

INDUSTRIAL COURT OF QUEENSLAND

Decision

Application

2. [2]
   The appellant applies pursuant to section 347 of the Industrial Relations Act 1999 (the IR Act) for a stay of a decision of the Commission released on 1 April 2016 in which the Commissioner ordered:

"(a) In B/2015/44, B/2015/45 and B/2015/51 - Application for Crown Law and Fiona Black to cease to act as solicitors for the Respondent (the State of Queensland) is granted."

3. [3]
   The appellant seeks the following order:

"That the Commission's decision, delivered on 1 April 2016, that in B/2015/44, B/2015/45 and B/2015/51 - Application for Crown Law and Fiona Black to cease to act as solicitors for the Respondent ( the State of Queensland) be stayed until the hearing and determination of the appellant's appeal, or further order."

Relevant Background

4. [4]
   On 18 November 2015, Ms Siobhan Parer and Ms Jeremy Weston filed applications (B/2015/44 and B/2015/45) pursuant to section 120 of the IR Act.  The applications sought reinstatement, compensation and that the employer not carry out a threat to take disciplinary action in respect of show cause notices issued.  At a conference before the Commission, orders were made for disclosure of documents and for Ms Parer and Mr Weston to respond to the show cause notices by 17 December 2015, in order to facilitate resolution of the matters.

5. [5]
   On 16 December 2015, applications (B/2016/51 and B/2015/52) were filed pursuant to s 274A of the IR Act seeking declarations that reports prepared on behalf of Crown Law, the suspensions of Ms Parer and Mr Weston, and the first show cause notices were procedurally unfair and otherwise unfair and unjust.  A declaration was also sought that the reports prepared on behalf of Crown Law would not be used in any future disciplinary action. 

6. [6]
   On 16 February 2016, at a mention hearing of the applications for declarations, Ms Parer and Mr Weston raised before the Commission their intention to make an application to restrain both Crown Law and Ms Fiona Black from acting for the State of Queensland.  Such an application was made on 23 February 2016.  The application also sought orders to join both the original applications of Ms Parer and Mr Weston with both their subsequent applications for declarations.

7. [7]
   The State of Queensland made an application to dismiss the applications B/2015/51 and B/2015/52 on 19 February 2016.  On 7 March 2016, the Commission heard the appellant's application to dismiss those matters.  The applications to join matters was also heard, as was the application to restrain Crown Law and Ms Black. 

8. [8]
   On 1 April 2016, the Commission handed down its decision. Relevantly for this application, the Commission restrained Crown Law and Ms Black from continuing to act in B/2015/44, B/2015/45 and B/2015/51.  

Power to grant a Stay

9. [9]
   The respondent has submitted, in reliance on a decision of the Full Bench of the Commission in David Rolly Padget v Industrial Registrar^[1] (Padget) that the Court cannot make the order sought because the decision has already been implemented.  The purpose of s 347 is to allow for a stay of a decision – "decision" being defined in Schedule 5 of the IR Act.  It is not, as has been submitted by the respondent, that the Court is being asked to reverse the decision. I do not accept that submission. Padget is not a decision which supports that contention.  Padget involved an application for the grant of an interim stay pending resolution of certain matters in the Federal Court. The Full Bench wrote that they "…entertain reservations also about whether s. 347 of the Act will support a stay of a decision after the decision has (as here) been implemented by registration of an amendment to an organisation's rules."  At it's highest, the Full Bench's decision only 'entertained a reservation' as to whether the power existed to grant a stay.

10. [10]
    In considering the exercise of the discretion to grant the stay, it is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion.^[2]  It is not, as was submitted by the respondent that "the purpose of the stay is to preserve the subject matter of litigation unless, otherwise, some special case is made out."

11. [11]
    In Croney v Nand^[3] the Court of Appeal wrote:

"On its face the discretion to grant a stay is unfettered. Over time various epithets, such as 'special' or 'exceptional', have been used to describe the circumstances which call for the exercise of discretion.  This Court has accepted as correct the test that the applicant bears the onus of showing that it is an "appropriate" case for a stay to be granted.^[4]

12. [12]
    The New South Wales Court of Appeal in Alexander v Cambridge Credit Corp Ltd enumerates a number of relevant principles in considering the exercise of the discretion:

"●  The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.

• The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
• The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.

…

• Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
• The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.

… "

Prospects of success

13. [13]
    In Cook's Constructions P/L v Stork Food Systems Aust P/L it was observed that "the prospects of success will tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor".^[5]

14. [14]
    It was submitted by the State of Queensland there is a serious question to be heard on appeal (a point which is accepted by the respondent), namely, amongst other things, whether the Commission had jurisdiction to make the orders sought.  Even if the Commission had power to make the orders sought, it is the State of Queensland's submission that the Commissioner erred in law in exercising her discretion. 

15. [15]
    The State of Queensland submits the Commission erred in that it failed to give any adequate reasons for the decision; failed to take into account relevant considerations, including the nature of an application under s 120 of the IR Act; and took into account irrelevant considerations including that Ms Black may be required to act against fellow employees^[6] or act for other solicitors who are more senior to her or at her classification level^[7]within the Crown Law office.

16. [16]
    In House v The King,^[8] Dixon, Evatt and McTiernan JJ wrote that appeals from discretionary judgments are discouraged and can only be allowed in defined circumstances:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the … judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way that there has been a failure properly to exercise the discretion …"

17. [17]
    It was the submission of the State of Queensland that the proper course for Mr Weston and Ms Parer was to make an application to the Supreme Court exercising it supervisory role over legal practitioners in this State.

18. [18]
    It is important to note that the obligations imposed on a solicitor recognise that a legal practitioner's primary duty is to the Court.  As was observed by Heenan J in Holborow & Ors v Macdonald Rudder:^[9]

"… it by no means follows that every conflict of interest between the legal practitioner and a client will give rise to a concurrent conflict of interest between the legal practitioner and his duty to the court, or, even where it does, that there is a risk that the practitioner will disregard his overriding duty to the court in favour of his client's interest.  It seems to me that if it can be demonstrated that there is a risk that a practitioner will disregard his overriding duty to the court that this will usually, if not always, require action by the court to avoid such a risk by preventing the practitioner from acting even if the relief is sought by an opposing party in the litigation.  But these principles do not render counsel or solicitors generally examinable at the suit of their client's opponents.  The duty of the legal practitioner is not to his client's opponent and he is not answerable to his client's opponent.  His duty is to the court and he is certainly answerable to the court and to his or her professional and disciplinary bodies.

Consequently, if an opposing party asserts that a legal practitioner should be restrained from acting for his opponent it is necessary for a clear case to be made that the practitioner concerned is in a position where he is fixed with an interest which conflicts with his duty to the court and that that interest is one of such a nature that the solicitor or counsel may fail in his overriding duty to the court. Animosity between the lawyers on opposing sides of the litigation, even animosity which may cause a practitioner in an unguarded moment to commit some act of professional misconduct, will not, of necessity, require such an intervention."

19. [19]
    I accept the submission of the appellant that the prospects of success on appeal are, at the very least, arguable.

Balance of convenience

20. [20]
    I accept that the balance of convenience supports the granting of the stay.

21. [21]
    In coming to that conclusion, I am mindful of fact the State of Queensland, as the employer, has been denied the ability to retain the solicitor of its choice.^[10] 

22. [22]
    The State of Queensland submitted that in proceedings before the Commission, dealing with matters under Chapter 4 of the IR Act, a party has an absolute right to have legal representation.^[11]  The Court was referred to the decision of Bahonko v The Nurses Board of Victoria & Anor,^[12] a decision of Middleton J of the Federal Court of Australia.  In that decision his Honour noted that the jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary.  It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause.

23. [23]
    I accept that Mr Weston and Ms Parer will not suffer any hardship if the stay was granted. Nor are they prejudiced in anyway by the granting of a stay pending the hearing and determination of the appeal before this Court.

24. [24]
    The respondent submits that the only harm is the potential disruptions to the Commission's directions upon constant changes of solicitor.  However, I note the appellant does not seek any change to the timetable for the substantive hearing of these matters nor does it seek to adjourn or to amend any of the directions given by the Commission.

Conclusion and Orders

25. [25]
    For the reasons given, I consider that the applicant has made out that this is an appropriate case for the grant of a stay in the exercise of the Court's discretion under s 347 of the IR Act.

26. [26]
    I make the following orders:

1. That the Commission's decision, delivered on 1 April 2016, that in B/2015/44, B/2015/45 and B/2015/51 - Application for Crown Law and Fiona Black to cease to act as solicitors for the Respondent ( the State of Queensland) be stayed until the hearing and determination of the appellant's appeal, or further order of this Court.

2. That costs be reserved.