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Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)[2021] ICQ 16

Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)[2021] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 016

PARTIES:

TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES

(appellant)

v

STATE OF QUEENSLAND (QUEENSLAND HEALTH)

(respondent)

FILE NO/S:

C/2021/12

PROCEEDING:

Appeal

DELIVERED ON:

31 August 2021

HEARING DATE:

24 August 2021

MEMBER:

Davis J, President

ORDERS:

  1. Appeal allowed.
  2. The order giving the State leave to be represented by a lawyer at the directions hearing be set aside.
  3. The directions hearing be remitted to the Queensland Industrial Relations Commission to proceed according to law.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL RELATIONS COMMISSION – PROCEEDINGS IN INDUSTRIAL TRIBUNALS – REPRESENTATION OF PARTIES – where the appellant union brought an application to vary an award – where the application was brought to the Queensland Industrial Relations Commission (QIRC) – where the application was referred for hearing by a Full Bench of the QIRC – where an application for directions came before the Vice President sitting alone – where the Vice President was not sitting as a Full Bench – whether the Vice President had jurisdiction to grant leave to the State to be legally represented on the directions hearing by private lawyers

COURTS AND JUDGES – BIAS – DISQUALIFICATION OF JUDGE – PARTICULAR GROUNDS – PRE-JUDGMENT – where the appellant union applied to the QIRC for variation of an award – where the application was referred to a Full Bench of the QIRC – where the Vice President of the QIRC heard a directions hearing – where the Vice President gave leave to the State to be legally represented – whether the Vice President pre-judged that application – whether any pre-judgment raised an apprehension of bias – whether any apprehension of bias disqualified the Vice President from hearing the substantive application or further directions hearings

Hospital and Health Service General Employees (Queensland Health Award - State) 2015

Industrial Relations Act 2016, s 429, s 432, s 439, s 451, s 486, s 530, s 557

Industrial Relations (Tribunal) Rules 2011, r 41

Judicial Review Act 1991, s 4

CASES:

De Alwis v State of Western Australia (No 3) [2015] WASCA 41, cited

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed

Griffith University v Tang (2005) 221 CLR 99, cited

Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334, cited

Livesy v The New South Wales Bar Association (1983) 151 CLR 288, cited

Lowis v Queensland Industrial Relations Commission [2019] QSC 277, considered

Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207, cited

Mann v Northern Territory News (1988) 88 FLR 194, cited

Matthews v Commissioner of Police [2011] QCA 341, cited

Merrin v Commissioner of the Police Service [2002] QCA 449, cited

Neil v Legal Professional Complaints Committee (No 2) [2012] WASCA 150, cited

Re Variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103, related

Unions New South Wales v New South Wales (2013) 88 ALJR 227, cited

APPEARANCES:

K McKay, industrial advocate for the appellant

C Jacobs for the respondent

  1. [1]
    Together Queensland Industrial Union of Employees (the Union) appeals against an order made on a directions hearing that the State of Queensland have leave to be represented on the directions hearing by private solicitors.

Background

  1. [2]
    The Union represents employees some of whom are covered by the Hospital and Health Service General Employees (Queensland Health Award - State) 2015 (the Award).  An application was filed in the Queensland Industrial Relations Commission  (the QIRC) by the Union seeking a variation of the Award (the Union’s substantive application).
  2. [3]
    Industrial Commissioner McLennan, pursuant to s 486 of the Industrial Relations Act 2016 (the IR Act) sought my approval to refer the Union’s substantive application to the Full Bench.  I gave that approval on 26 March 2021.[1]  An application was filed seeking a directions hearing.  On 1 June 2021, that directions hearing was heard by Vice President O'Connor.  The purpose of the hearing was to make programming orders to ready the application for hearing by the Full Bench.
  3. [4]
    On 31 May 2021, the day before the directions hearing, various emails were exchanged between Mr Ken McKay, an industrial advocate employed by the Union, the Industrial Registrar and Mr Michael Moy who is a partner of McCullough Robertson Lawyers.
  4. [5]
    The first of these emails was sent by Mr Moy to the Industrial Registrar.  That advised the Industrial Registrar that McCullough Robertson Lawyers acted for the State of Queensland and attached two documents.  The first was a notice of address for service the effect of which was that the address for service of the State was nominated as the offices of McCullough Robertson.  The second was a draft order proposing various directions. 
  5. [6]
    Mr Moy’s letter to the Registrar was copied to Mr McKay and each of the secretaries of other unions interested in the application, namely the Australian Workers’ Union of Employees, Queensland, the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch), Australian Municipal, Administrative, Clerical and Services Union (Services and Northern Administrative Branch), and United Voice, Industrial Union of Employees, Queensland. 
  6. [7]
    Mr McKay responded to Mr Moy’s email with what is the second email in this chain.  He said:

“We believe that it would be improper to accept this correspondence. This is a letter advising that the State of Queensland is being represented by lawyers. No application has been granted by the Full Bench for the State of Queensland to be represented by lawyers in respect of this matter. No application has even been made for the State of Queensland to be represented by lawyers. Any consideration of the material in this correspondence would be evidence of pre-judgement of an application for leave of the Full Bench for the State of Queensland to be represented by lawyers.

The law firm of McCullouch Robertson has no standing in these proceedings and we request that unless the Full Bench grants leave for the State of Queensland to be represented in this proceedings by lawyers that all correspondence from them in respect of this matter not be received.

Should the State of Queensland make an application for leave to be represented by lawyers we would obviously would like to be heard on this matter and be allowed to make submissions.”

  1. [8]
    In the email, the Union has suggested that it would be improper to accept Mr Moy’s email, and by inference asserted Mr Moy’s email was improper.  I cannot see that it was.  It was directed to the Registrar, not to the judicial officer who was to hear the application for directions.  It made clear that the draft order had not been agreed to by the Union, and therefore was no more than a proposed set of directions.
  2. [9]
    A point was taken by the Union that Mr Moy wrote to the Registrar before being given leave under s 530 of the IR Act to represent the State, and that was improper.  Again, I cannot see anything improper in Mr Moy’s actions.  His firm had obviously taken instructions from the State to act in the matter, and the extent to which McCullough Robertson could ultimately participate in the proceedings would be decided in due course by the Full Bench pursuant to s 530 of the IR Act.
  3. [10]
    Mr McKay sent a further email to the Industrial Registrar in these terms:

“Further to my email, we wish to raise the following concerns about the misleading behaviour of the law firm McCullough Robertson. Attached to the improper correspondence from McCullough Robertson are draft direction orders which imply that there they are by consent. We have never consented to such direction orders.

The Legal Profession (Australian Solicitors Conduct Rules) Notice 2012 requires lawyers to be honest and courteous in all dealings in the course of the legal practice.

Providing draft directions orders indicating consent of the parties when no such consent has been provided is simply dishonest and misleading conduct. Further when the lawyer’s client has been advised in writing that we do not consent to the proposed directions orders it is egregious behaviour for the law firm McCullough Robertson to send material that is knowingly false and misleading. This behaviour could be a breach of section 19.1 Legal Profession (Australian Solicitors Conduct Rules) Notice 2012.”

  1. [11]
    The assertion that Mr Moy’s email is misleading because the draft is framed as a consent order is somewhat mystifying.  Mr Moy’s email actually says:

“…Also attached is a set of proposed directions for the initial conduct of this matter. We have provided a copy of these proposed directions to the applicant, which has declined to respond to the proposed directions on the basis that we do not yet have leave to represent the State of Queensland”. (emphasis added)

  1. [12]
    Both Mr McKay’s emails were addressed to the Industrial Registrar but were quite properly copied to the other recipients of Mr Moy’s email.
  2. [13]
    The Industrial Registrar then responded to Mr McKay by email in these terms:

“Dear parties,

I refer to today’s correspondence of the parties in the matter above.

Please be advised, his Honour will hear the parties on the matters raised in the mention tomorrow morning, Tuesday, 1 June 2021.

Further, if the Respondent intends to file an application to seek leave for legal representation in the Industrial Registry, his Honour will grant leave for McCullough Robertson Lawyers to appear at the mention to address this application.”

  1. [14]
    That email was sent to all the recipients of Mr Moy’s original email. 
  2. [15]
    Three applications were then returnable on 1 June 2021.  The first was the Union’s application for directions.  The second was an application filed by the State seeking orders that it be given leave that it be represented by lawyers, namely McCullough Robertson.  The Union filed an application which was the third before the Vice President on 1 June 2021.  In the Union’s application, the following order was sought:

“1. That Vice President O'Connor recuse himself from further hearing MA/2020/23.

For Grounds of application see schedule 1 attached.”

And the grounds for the application were stated as:

“Schedule 1.

Grounds for Application

  1. That the Vice President intends to pre-judge an application yet to be made by the respondent. Evidenced by the email sent by the Registrar dated 31 May 2021. Thus, giving rise to a reasonable apprehension of bias.
  1. That the Vice President intends to grant leave in an existing matter namely MA/2020/23 for the respondent to be represented by lawyers when only a Full Bench has jurisdiction to grant such leave. Thus, the willingness for the Vice President to act in excess of jurisdiction, gives rise to a reasonable apprehension of bias.
  1. That the Vice President in intending to grant leave for a party to be represented by lawyers without hearing any submissions from other parties would be acting in excess of jurisdiction by denying a party namely the applicant procedural fairness, giving rise to a reasonable apprehension of bias.”
  1. [16]
    The reference to MA/2020/23 is a reference to the file number of the Union’s principal substantive application.  At least then on its face, the Union’s interlocutory application sought the Vice President’s recusal from not only hearing the programming application, but also from sitting on the Full Bench and hearing the application to vary the award.
  2. [17]
    When the various applications came on for hearing, they came before the Vice President sitting alone.  By sitting alone he did not constitute a Full Bench.[2]  Mr McKay appeared for the Union and Mr Moy sought leave to appear on behalf of the State.  Appearing with him was Ms C Jacobs, a State Government employee.  There is no doubt that the State had a right to appear by Ms Jacobs.[3]
  3. [18]
    Argument then ensued about Mr Moy’s right to appear.
  4. [19]
    It is evident that the Vice President granted leave to the State to be represented on the mention.[4]  His Honour did not purport to give Mr Moy or McCullough Robertson leave to appear for the State beyond the directions hearing.  The Vice President ruled that he could give leave to a lawyer to make submissions about whether the lawyer should have leave to appear on the directions hearing.  The statutory basis for that power was said to be the QIRC’s general powers which are found at s 451 of the IR Act, to which I will later return.
  5. [20]
    Argument continued and ultimately Mr McKay sought an adjournment so that the Union could appeal.  The Vice President inquired as to what decision was to be appealed and Mr McKay responded:

“That you granted leave for McCullough Robertson to appear in the mention.”[5]

  1. [21]
    No decision was made by the Vice President on the recusal application.  That was understandable given Mr McKay’s application for an adjournment.  The Vice President adjourned the application to allow any appeal to proceed.
  2. [22]
    In due course, the appeal was filed.  The orders sought on appeal are:

“1. A declaration that the decision of Vice President O'Connor to grant leave for the State of Queensland to be represented in a proceeding by lawyers for the specific mention hearing on 1 June 2021 is void, ab initio.

  1. That Vice President O'Connor’s decision to grant leave for the State of Queensland to be represented in a proceeding by lawyers for the specific mention hearing on 1 June 2021 was an error of law.
  1. That Vice President O'Connor’s decision to grant leave for the State of Queensland to be represented in a proceeding by lawyers for the specific mention hearing on 1 June 2021 was in excess, or want of jurisdiction.
  1. That the Court remit the matter to a different Commissioner to determine programing of application MA/2020/23”
  1. [23]
    The grounds of appeal are:

“Grounds of the Appeal

  1. Vice President O'Connor granted leave to the State of Queensland to be represented by lawyers in the proceeding in MA/2020/23 on 1 June 2021, the grant of leave was for the proceeding on that day alone.
  1. The decision is recorded in the transcript (attached) at page 1-3 at line 26 the relevant extract is outlined below:

‘MR McKAY: Your Honour, it - for a mention, lawyers can’t appear unless they’ve been granted leave.

HIS HONOUR: Yes, and I’ve granted them leave just to put before me - and so I can get a response about the exchange of submissions. That’s a limited extent, and I can do that.

MR McKAY: Under what provision of the Act can you do that?

HIS HONOUR: I can do it under my general powers.’

  1. The Industrial Relations Act 2016 regulates how and when a party to a proceeding can be represented by a lawyer through section 530. The provisions apply to all proceedings.
  1. The matter before Vice President O'Connor on 1 June was a proceeding.
  1. A party can be represented by a lawyer in proceedings before the Industrial Commission in the following circumstances:

• If the proceeding is before a Full Bench, the Full Bench gives leave

• If the proceeding is before a single Commissioner the parties consent or the proceedings relate to a relevant provision

  1. The subject matter of the proceeding was not related to a relevant provision.
  1. The Industrial Relations Act 2016 only allows a Full Bench of the Queensland Industrial Relations Commission to grant leave for a party to be represented in a proceeding by lawyers, where there is not consent. Thus, the decision of the Vice President to grant leave, acting as a single Commissioner or without reference to the other members of the Full Bench, was in excess, or want of jurisdiction.
  1. The Appellant was denied procedural fairness in that the decision was made without the opportunity to make submissions. Thus, the decision was infected by an error of law.
  1. The decision was made without reasons, nor did the decision identify whether one of the three statutory preconditions specified in section 530(4) for the exercise of the discretion to grant leave was satisfied. Thus, the failure to give adequate reasons amounts to an error of law.
  1. Communication was sent by the Industrial Registry on 31 May 2021 indicating that if an application was made for leave to be represented· by lawyers, that leave would be granted by the Vice President for the lawyers to appear in the proceeding on 1 June 2021. It is presumed that the email correspondence from the registry was sent on behalf, or at least with the approval of the Vice President, thus giving rise to an apprehension of bias in that the Vice President had pre-judged the merits of the grant of leave for the respondent to be represented by lawyers in the matter, even on a limited basis.
  1. The fact that when the applicant objected to the appearance of lawyers at the bar table, the Vice President indicated that he had already granted leave for them to be able to represent the respondent for the limited basis of the hearing occurring on 1 June 2021 as outlined in the correspondence from the Registry, supports the contention that pre-judgement had already occurred.
  1. A decision infected by the apprehension of bias amounts to an error of law.
  1. The appellant had made an application on 31 May 2021 in the existing proceeding seeking that the Vice President recuse himself from the proceedings on the basis that prejudgement of the grant of leave for a party to be represented by lawyers gives rise to an apprehension of bias. The Vice President declined to do so before granting the respondent leave to be represented in the proceeding for 1 June 2021.
  1. The Vice President only allowed us to address by way of submissions our application for recusal on the grounds of pre-judgement after he had already granted leave for the respondent to be represented by lawyers, the very issue we were asserting was subject of pre-judgement giving rise to a reasonable apprehension of bias.”

The issues on the appeal

  1. [24]
    Outlines on the appeal were exchanged and oral submissions were heard.  The real issues in the appeal were:
  1. Is the appeal competent?
  2. Did the Vice President have power to make the order giving leave to the State to be represented by McCullough Robertson on the directions hearing?
  3. If so, was that decision vitiated by:
  1. (a)
    prejudgment of the issue by the Vice President;
  1. (b)
    a failure to give reasons or adequate reasons for the decision?
  1. What are the appropriate orders?  This gives rise to the apprehended bias issue as the Union seeks to have the matter remitted to an Industrial Commissioner and not the Vice President.

Is the appeal competent?

  1. [25]
    The State submitted that the Vice President, when hearing the mention, was not exercising judicial power and the decision, being an interlocutory one, was not appellable.  The Crown relied on the decision of Crow J in Lowis v Queensland Industrial Relations Commission.[6] 
  2. [26]
    The Union’s appeal is sought to be mounted under s 557 of the IR Act.  That is in these terms:

“557 Appeal from commission

  1. (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—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (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—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. (5)
    In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.” (emphasis added)

  1. [27]
    The term “decision” is defined in Schedule 5 as:

“decision means—

  1. (a)
    a decision of the court, the commission, a magistrate or the registrar; or
  1. (b)
    an award, declaration, determination, direction, judgment, order or ruling; or
  1. (c)
    an agreement approved, certified, or amended by the commission and an extension of the agreement; or
  1. (d)
    a bargaining award made or amended by the commission.”
  1. [28]
    There is nothing which limits the right of appeal under s 557 to those decisions which finally affect rights.  Indeed, the definition of “decision” is very wide and includes a “direction”, “order” or “ruling”, all of which are often made on an interlocutory basis.
  2. [29]
    The State’s reliance upon Lowis is misplaced.  In that case, Crow J considered an application for judicial review pursuant to the Judicial Review Act 1991 of a decision made in relation to the Workers’ Compensation and Rehabilitation Act 2003.  In order for a “decision” to be reviewable pursuant to the provisions of the Judicial Review Act, it must be “a decision of an administrative character made, proposed to be made or required to be made under an enactment”.[7]  That bears no relationship to the definition of “decision” in the IR Act.
  3. [30]
    The IR Act, by s 530, restricts the rights of parties to be represented by lawyers.  Any determination of those rights at any time in the proceeding is, in my view, obviously a “decision” which is appellable under s 557.
  4. [31]
    The Union’s appeal is competent.

Did the Vice President have power to make the order giving leave to the State to be represented by McCullough Robertson on the directions hearing?

  1. [32]
    Section 530 of the IR Act provides, relevantly, as follows:

“530 Legal representation

  1. (1A)
    This section applies in relation to proceedings other than a proceeding for a public service appeal.
  1. (1)
    A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—
  1. (a)
    for proceedings in the court—
  1. (i)
    all parties consent; or
  1. (ii)
    the court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (b)
    for proceedings before the full bench—the full bench gives leave; or…
  1. (d)
    for other proceedings before the commission, other than the full bench—
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision—the commission gives leave; or…
  1. (3)
    Despite subsection (1), a party or person may be represented by a lawyer in making a written submission to the commission in relation to—
  1. (a)
    the making or variation of a modern award under chapter 3; and
  1. (b)
    the making of a general ruling about the Queensland minimum wage under section 458.
  1. (4)
    An industrial tribunal may give leave under subsection (1) only if—
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. (b)
    it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  1. (c)
    it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.
  1. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or
  1. (b)
    an employee or officer of an entity representing the party or person, if the entity is—
  1. (i)
    an organisation; or
  1. (ii)
    an association of employers that is not registered under chapter 12; or
  1. (iii)
    a State peak council…
  1. (7)
    In this section—

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings—

  1. (a)
    means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1. (b)
    includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

relevant provision, for a proceeding before the commission other than the full bench, means—

  1. (a)
    chapter 8; or
  1. (b)
    section 471; or
  1. (c)
    chapter 12, part 2 or 16.”
  1. [33]
    Part 2 of the IR Act concerns the QIRC.  Section 429 establishes the QIRC as a court of record.  Section 432 concerns the composition of the QIRC:

“432 Composition

  1. (1)
    The commission consists of the following members—
  1. (a)
    the president;
  1. (b)
    the following persons (each a commissioner)—
  1. (i)
    a person holding office as the vice-president;
  1. (ii)
    a person holding office as a deputy president;
  1. (iii)
    a person holding office as an industrial commissioner.
  1. (2)
    The full bench of the commission (the full bench) is constituted by—
  1. (a)
    for chapter 12, part 16 or for the hearing of an appeal—a presidential member and 2 or more other members; or
  1. (b)
    otherwise—3 or more members.
  1. (3)
    The commission other than the full bench of the commission is constituted by a commissioner sitting alone.
  1. (4)
    More than 1 full bench or commission may sit at the same time.
  1. (5)
    The commission’s jurisdiction, or existence, is not affected by a vacancy in an office of the commission.”
  1. [34]
    Section 486 provides:

“486 Referring matter to full bench

  1. (1)
    The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.
  1. (2)
    A commissioner may refer the matter only with the president’s approval.
  1. (4)
    Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.
  1. (6)
    The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.”
  1. [35]
    Here, as previously observed, there has been a referral of the Union’s substantial application to the Full Bench.
  2. [36]
    Section 451 is a section which vests powers relied upon by the Vice President to make the order under appeal.  It provides:

“451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. (3)
    The commission may, by general order or for a particular case, delegate to the registrar—
  1. (a)
    the working out of a decision of the commission to implement the decision; or
  1. (b)
    a function relating to the decision, including, for example—
  1. (i)
    the giving of directions; or
  1. (ii)
    the making of orders; or
  1. (iii)
    the preparation of rosters and schedules; or
  1. (iv)
    a similar function it considers appropriate.
  1. (4)
    The full bench may, to assist it in the resolution of proceedings—
  1. (a)
    refer the whole or part of a question or matter before it to the commission—
  1. (i)
    for investigation by the commission and the preparation of a report on the investigation; or
  1. (ii)
    for another action it decides; or
  1. (b)
    direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
  1. (5)
    The commission or member must comply with the reference or direction..”
  1. [37]
    Rule 41 of the Industrial Relations (Tribunal) Rules 2011 (the Rules) provides:

“41 Directions orders

  1. (1)
    The court, commission or registrar may make an order (a directions order) about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
  1. (2)
    A directions order may, for example, relate to the following—
  1. (a)
    the parties who are to be served with applications, related material or other documents;
  1. (b)
    requiring evidence of the service;
  1. (c)
    another matter relating to service of an application;
  1. (d)
    scheduling of conferences, mediation conferences, preliminary hearings and hearings before the court, commission or registrar;
  1. (e)
    requiring further and better particulars of an application;
  1. (f)
    requiring the applicant to file and serve all material to be relied on in support of the application by affidavit or another form;
  1. (g)
    requiring a party to respond to a notice to admit facts or documents;
  1. (h)
    requiring the respondent to file and serve material in reply;
  1. (i)
    requiring the applicant to file and serve material in reply;
  1. (j)
    requiring the parties—
  1. (i)
    to confer to agree on matters that can be agreed on; and
  1. (ii)
    to identify points in issue; and
  1. (iii)
    to report back to the court, commission or registrar;
  1. (k)
    requiring the parties to file—
  1. (i)
    a written outline of submissions; or
  1. (ii)
    submissions about the subject matter of the application;
  1. (l)
    requiring—
  1. (i)
    evidence to be given by affidavit; or
  1. (ii)
    statements to be filed and served, in affidavit form, of the primary evidence of a witness;
  1. (m)
    requiring—
  1. (i)
    the identification of the provisions of relevant legislation or industrial instruments; and
  1. (ii)
    a list of cases to be relied on to be provided; (n) requiring submissions in writing to justify the necessity to carry out inspections or hearings at other locations;
  1. (o)
    requiring disclosure of documents;
  1. (p)
    requiring inspection of documents.
  1. (3)
    An application for a directions order about a matter mentioned in subrule (2)(b) to (p) must be in the approved form unless the application was made in a document starting a proceeding.
  1. (4)
    A draft of the directions order sought must be filed with the application.”
  1. [38]
    Section 530 of the IR Act severely restricts the right of appearance of lawyers in the QIRC. In the absence of the consent of all parties, a discretion to allow legal representation only rises in relation to a small number of matters which arise under a “relevant provision”.[8]
  2. [39]
    Where a matter heard and determined in the QIRC goes on appeal to the Court, there is a discretion in the Court to give leave to a party to be legally represented.[9] Any complicated issue which might have to be considered in an appeal would invariably have been raised in the QIRC so it is mysterious why the QIRC does not have a broader discretion to grant leave to the parties to be legally represented.
  3. [40]
    The Full Bench has a broad discretion to give leave to a party to be legally represented before it.[10]
  4. [41]
    There can be no doubt that the Union’s substantive proceeding is a “proceeding before the Full Bench”.  It follows that in those proceedings a party may only be represented by a lawyer if the Full Bench gives leave.[11]  Section 451 of the IR Act and r 41 of the Rules vests power in the QIRC to give directions.  There is nothing in either s 451 or r 41 which suggests that only a Full Court may give directions in relation to proceedings before the Full Bench. 
  5. [42]
    Here, the Vice President sitting alone, had jurisdiction to make programming orders.  However, the State’s submission that the Vice President sitting alone, had power pursuant to s 451 of the IR Act and/or r 41 of the Rules to give leave to a party to be represented at any stage during proceedings before the QIRC ought to be rejected.  Section 530 is both prohibitory and promissory.  It prescribes the “only” circumstances[12] in which a party may be represented by a lawyer.  On a proper construction of s 530, there is a prohibition upon legal representation except in the circumstances prescribed by s 530.
  6. [43]
    Section 451 of the IR Act and r 41 of the Rules give general powers, but the general powers must be subject to the specific prohibition in s 530.  If s 451 and/or r 41 are read otherwise, there is then a general power to give leave to a party to be legally represented and that completely nullifies the prohibition in s 530. 
  7. [44]
    There is also no reason to read s 451 of the IR Act and r 41 of the Rules so as to grant a power in the QIRC to allow representation in interlocutory hearings, as opposed to the final hearing before the Full Bench.  The interlocutory proceedings are part of the proceedings commenced by the Union’s substantive application and once an order was made under s 486 all interlocutory proceedings become part of the “proceedings before the Full Bench”.  Even if I am wrong about that and the interlocutory proceedings were not “proceedings before the Full Bench”, there would still be no power in the Vice President sitting alone to grant leave to a party to be legally represented in an interlocutory matter.  That is because the Union did not consent to leave being given and the matter is not one “under a relevant provision”.[13]
  8. [45]
    It follows that the Union has made out a ground of appeal, namely that the Vice President gave leave to the State to be represented by McCullough Robertson in circumstances where he had no jurisdiction to do so.

If the Vice President had power to make an order for leave that the State be represented by McCullough Robertson, was the decision vitiated by:

1. prejudgment of the issue by the Vice President; and

2. a failure to give reasons or adequate reasons for the decision?

  1. [46]
    These questions do not arise because the Vice President had no jurisdiction to make the order giving leave.  There is no utility in considering the issues.

What are the appropriate orders?

  1. [47]
    There is no submission that the Vice President is actually prejudiced against the Union.  What is alleged is apprehended bias.  In Ebner v Official Trustee in Bankruptcy,[14] in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ, the test was expressed in this way:

“6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”

  1. [48]
    What occurred here, at its very highest, was that the Vice President prejudged the question of leave for the State to be represented by a lawyer at a programming hearing in a proceeding to be determined later by a Full Bench.  The Vice President proceeded on the basis that he had jurisdiction to give leave and obviously acted bona fide on that belief.
  2. [49]
    There is nothing which would cause a reasonable bystander to be concerned that the Vice President would be biased against the Union in the determination of the Union’s substantive application if the Vice President formed part of the Full Bench who heard the application.  Similarly, no reasonable bystander would be concerned that the Vice President might be biased against the Union in making any programming orders.  The only area of potential apprehended bias is on the question of the legal representation of the State.  However, the Vice President sitting alone on a directions hearing has, for the reasons I have explained, no jurisdiction to make such orders.
  3. [50]
    Consequently, there is no reason why the application for programming orders cannot be returned to the Vice President to proceed according to law. 
  4. [51]
    As already observed, the Full Bench has power under s 530(1)(b) of the IR Act to give leave to a party to be legally represented in the proceedings, which are the proceedings constituted by the Union’s substantive application.  I can see no reason why a Full Bench, which might or might not be constituted by the members who constitute the Full Bench which ultimately hears the Union’s substantive application, could not be constituted to consider whether leave should be granted to the State to be legally represented on interlocutory matters in the proceeding including programming orders.  If the Full Bench gave leave, then I can see no reason why the QIRC constituted by the Vice President, the Deputy President or a Commissioner, could not then hear any interlocutory applications and the State, by force of order of the Full Bench, could be legally represented at those hearings.
  5. [52]
    A question of apprehended bias may arise if the Vice President formed part of the Full Bench which considered an application by the State to be represented by a lawyer in interlocutory proceedings in the Union’s substantive application.  That issue would arise because the Vice President had purported to decide the issue which would have to be argued before the Full Bench. 
  6. [53]
    The weight of authority appears to be (although there is no necessity for me to finally determine the issue) to the effect that if an application was made for the recusal of the Vice President from a Full Bench, then it is the Vice President, not the full quorum which decides that issue.[15]  The Vice President’s decision on that issue may (although it is not necessary to decide) be subject to appeal.
  7. [54]
    It is appropriate then to remit the matter to the QIRC without any prohibition upon the Vice President hearing any part of the proceedings.  If the matter comes before a Full Bench and the Vice President is a member, he can hear any recusal application which might be made.

Orders

  1. [55]
    Consistently with the reasons I have given, the orders are:
  1. Appeal allowed.
  2. The order giving the State leave to be represented by a lawyer at the directions hearing be set aside.
  3. The directions hearing be remitted to the Queensland Industrial Relations Commission to proceed according to law.

Footnotes

[1]Re Variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103.

[2]Industrial Relations Act 2016, s 432(2).

[3]Industrial Relations Act 2016, s 530(5).

[4]Transcript 1-3, ll 25-30.

[5]Transcript 1-11, ll 23-26.

[6][2019] QSC 277.

[7]Judicial Review Act 1991, s 4(a); and see generally Griffith University v Tang (2005) 221 CLR 99.

[8]Section 530(1)(d).

[9]Section 530(1)(a).

[10]Section530(1)(b).

[11]Section 530(1)(b).

[12]Section 530(1): “a party, may be represented by a lawyer only if …” (emphasis added).

[13]Section 530(1)(d) and s 530(7), definition of “relevant provision”.

[14](2000) 205 CLR 337.

[15]Kartinyeri v The Commonwealth [No 2] (1998) 72 ALJR 1334, Unions New South Wales v New South Wales (2013) 88 ALJR 227, Gageler J recused himself, Matthews v Commissioner of Police [2011] QCA 341, Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207, Merrin v Commissioner of the Police Service [2002] QCA 449, Mann v Northern Territory News (1988) 88 FLR 194, De Alwis v Western Australia (No 3) [2015] WASCA 41, but see Livesy v The New South Wales Bar Association (1983) 151 CLR 288 at 292, Neil v Legal Professional Complaints Committee (No 2) [2012] WASCA 150.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)

  • MNC:

    [2021] ICQ 16

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    31 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
De Alwis v Western Australia (No 3) [2015] WASCA 41
2 citations
Jump To
Cite 1 - [2015] WASCA 41
Cite 2 - [2015] WASCA 41
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
2 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Griffith University v Tang (2005) 221 CLR 99
2 citations
Jump To
Cite 1 - (2005) 221 CLR 99
Cite 2 - (2005) 221 CLR 99
Kartinyeri v The Commonwealth (No 2) (1998) 72 ALJR 1334
2 citations
Jump To
Cite 1 - (1998) 72 ALJR 1334
Cite 2 - (1998) 72 ALJR 1334
Livesey v New South Wales Bar Association (1983) 151 CLR 288
2 citations
Jump To
Cite 1 - (1983) 151 CLR 288
Cite 2 - (1983) 151 CLR 288
Lowis v Queensland Industrial Relations Commission [2019] QSC 277
2 citations
Jump To
Cite 1 - [2019] QSC 277
Cite 2 - [2019] QSC 277
Mango Boulevard Pty Ltd v Spencer [2010] QCA 207
2 citations
Jump To
Cite 1 - [2010] QCA 207
Cite 2 - [2010] QCA 207
Mann v Northern Territory News (1988) 88 FLR 194
2 citations
Jump To
Cite 1 - (1988) 88 FLR 194
Cite 2 - (1988) 88 FLR 194
Mathews v Commissioner of Police [2011] QCA 341
2 citations
Jump To
Cite 1 - [2011] QCA 341
Cite 2 - [2011] QCA 341
Merrin v Commissioner of the Police Service [2002] QCA 449
2 citations
Jump To
Cite 1 - [2002] QCA 449
Cite 2 - [2002] QCA 449
Neil v Legal Professional Complaints Committee (No 2) [2012] WASCA 150
2 citations
Jump To
Cite 1 - [2012] WASCA 150
Cite 2 - [2012] WASCA 150
Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103
2 citations
Jump To
Cite 1 - [2021] QIRC 103
Cite 2 - [2021] QIRC 103
Unions NSW v New South Wales (2013) 88 ALJR 227
2 citations
Jump To
Cite 1 - (2013) 88 ALJR 227
Cite 2 - (2013) 88 ALJR 227

Cases Citing

Case NameFull CitationFrequency
Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 2722 citations
Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3) [2022] QIRC 2802 citations
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees [2024] QIRC 2892 citations
Together Queensland Industrial Union of Employees v Scales [2021] QIRC 3644 citations
Together Queensland, Industrial Union of Employees v Scales (No 2) [2021] QIRC 4282 citations
Wang v Workers' Compensation Regulator (No. 4) [2023] QIRC 1871 citation
1

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