State of Queensland (Queensland Health) v Hume
[2022] ICQ 1
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- State of Queensland (Queensland Health) v Hume[2022] ICQ 1
- Add to List
State of Queensland (Queensland Health) v Hume[2022] ICQ 1
State of Queensland (Queensland Health) v Hume[2022] ICQ 1
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | State of Queensland (Queensland Health) v Hume [2022] ICQ 001 |
PARTIES: | State of Queensland (Queensland Health) (Appellant) v Hume, Daniel (Respondent) |
CASE NO.: | C/2021/19 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 3 February 2022 |
HEARING DATE: | 18 January 2022 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDER: | Pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, the Appellant is given leave, in this proceeding, to be represented by a lawyer, namely, private counsel. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION FOR LEAVE FOR APPELLANT TO BE REPRESENTED BY A LAWYER – respondent a public service employee who made a flexible working arrangement request to work from home for all hours of work – decision by appellant that respondent can work from home for half of all hours of work – respondent appealed against the appellant's decision to the Queensland Industrial Relations Commission pursuant to ch 7, pt 1 of the Public Service Act 2008 – decision by the Commission that appellant's decision was not fair and reasonable, that appellant's decision be set aside and that a new decision be substituted that the respondent be required to physically attend work one day each week – appeal against the decision of the Commission to the Industrial Court of Queensland by appellant – grounds of appeal contend the Commission erred in law and acted in excess or want of jurisdiction – appellant, pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, applied to be given leave to be represented by private counsel in its appeal – construction of s 530(4)(a) of the Industrial Relations Act 2016 – consideration of whether discretion to give leave for appellant to be represented by private counsel is enlivened – whether giving leave for appellant to be represented by private counsel would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter – matters in appeal complex – State of Queensland v Dodds [2021] ICQ 007 distinguished – discretion enlivened because the giving of such leave would enable the proceeding to be dealt with more efficiently – no other consideration militating against discretion being exercised in favour of appellant to be represented by private counsel – leave given |
LEGISLATION: | Fair Work Act 2009, s 596 Industrial Relations Act 1999, s 149 Industrial Relations Act 2016, s 27, s 28, s 529, s 530, s 562B and s 562C Public Service Act 2008, s 193, s 194, s 196 and s 197 |
CASES: | Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Chief Executive of the Public Service Commission v The President of the Industrial Court of Queensland & Anor [2014] QSC 122 Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128 Gilmore v Waddell & Ors [2019] QSC 170 House v The King [1936] HCA 40;(1936) 55 CLR 499 Hume v State of Queensland [2021] QIRC 272 Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563 R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20 State of Queensland v Dodds [2021] ICQ 007 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Others [2013] ICQ 9 Together Queensland, Industrial Union of Employees and Others v Chief Executive of the Public Service Commission [2013] QIRC 44 Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008 Warrell v Walton [2013] FCA 291; (2013) 233 IR 335 |
APPEARANCES: | Mr L. Grant and Ms M. Marincowitz of Crown Law for the Appellant/Applicant. Mr K. McKay of Together Queensland, Industrial Union of Employees, as agent for the Respondent. |
Reasons for Decision
Introduction
- [1]Mr Daniel Hume is employed by the State of Queensland ('the State') as a Manager in the Infrastructure Analysis and Reporting Team, Capital and Asset Services Branch of the Corporate Services Division of Queensland Health ('the Department').
- [2]On 9 March 2021, Mr Hume submitted to the Department a flexible working arrangements request ('the request'). The request was that he be able to work from home for all of his hours of work. That request was made pursuant to s 27 of the Industrial Relations Act 2016 ('the IR Act').[1]
- [3]On 30 March 2021, Mr Hume received written advice from Ms Fiona Brewin‑Brown, Senior Director, Capital Infrastructure Delivery, Capital and Asset Services Branch of the Department, that his request was partly approved. The decision was that Mr Hume had to physically attend his workplace two days one week and three days the other week ('the internal decision').[2]
- [4]Mr Hume, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the internal decision to the Queensland Industrial Relations Commission. By decision dated 5 August 2021, the Commission, pursuant to s 562C(1)(c) of the IR Act, set aside the internal decision and substituted another decision, namely, that Mr Hume's request be partly approved in that he was required to physically attend the workplace one day each week ('the decision').[3]
- [5]By application to appeal filed on 27 August 2021, the State appealed to this Court against the decision.
- [6]In the appeal, the State is represented by a solicitor employed by Crown Law. Mr Hume is represented by an agent, being Together Queensland, Industrial Union of Employees ('Together').
- [7]By application in existing proceedings filed on 15 September 2021, the State applied for an order, pursuant to s 530(1)(a)(ii) of the IR Act, that it be granted leave to be represented by private counsel in its appeal against the decision. The State contends that:
- pursuant to s 530(4)(a) of the IR Act, the Court's discretion to grant it such leave is enlivened because such leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; and
- there are no competing considerations which weigh against the discretion being exercised in its favour.
- [8]Mr Hume opposes the State's application.
- [9]The question for my determination is whether, pursuant to s 530(1)(a)(ii) of the IR Act, I should give leave for the State to be represented by private counsel in its appeal. That, in turn, requires me to form a value judgment as to whether the granting of such leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter and, if I form that value judgment, whether or not my discretion should be exercised in favour of the State.
- [10]For the reasons that follow, I will give leave to the State to be represented by a lawyer in its appeal against the decision, namely, private counsel.
Background
- [11]Section 27(1)(b) of the IR Act provides that an employee may ask the employee's employer for a change in the way the employee works, including the place where the employee works. Section 28(1)(b) of the IR Act provides that the employer may decide to grant the request in part or subject to conditions. Section 28(2) of the IR Act provides that the employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
- [12]Having regard to the State's grounds of appeal, there is no dispute that Mr Hume was, pursuant to s 27 of the IR Act, entitled to make the request. It is also not in dispute that the State, through the Department, could decide to grant the request in part, only on reasonable grounds.
- [13]Chapter 7, pt 1 of the PS Act deals with appeals. Section 193 of the PS Act provides that a person may appeal against a decision if:
- an appeal may be made against the decision under s 194; and
- the person is entitled to appeal against the decision under s 196.
- [14]There is also no dispute that Mr Hume was entitled to appeal against the internal decision because it was a decision he believed was unfair and unreasonable within the meaning of s 194(1)(eb) of the PS Act; referred to as a 'fair treatment decision.'
- [15]Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the IR Act by the Commission. Chapter 11 contains s 562B(1) of the IR Act which provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal '… is to decide whether the decision appealed against was fair and reasonable.'
- [16]In making the decision, the Commission referred[4] to the part of the decision of Ryan J in Gilmore v Waddell & Ors[5] which cited the joint judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li which, in turn, described the considerations in determining whether a decision met the legal standard of reasonableness.[6]
- [17]The Commission found that the internal decision was not fair and reasonable because the approach taken by the decision maker did not comply with the Department's Human Resources Policy entitled 'Flexible working arrangements' ('the Policy') and a further document published by the Department entitled 'Guideline for Flexible working arrangements' ('the Guideline').[7]
- [18]The Commission set aside the internal decision and substituted a new decision because:
- the internal decision, of Mr Hume working 50% from home, was unreasonable in light of his personal circumstances; and
- Mr Hume's request for a flexible working arrangement to work 100% from home was not feasible having regard to the needs of Mr Hume's team and his direct reports.[8]
- [19]The Commission decided, with a view to balancing Mr Hume's individual benefits and the organisational requirements of the Department, to substitute the internal decision with the decision, namely, to allow Mr Hume to work from home 80% of the time and to attend work 20% of the time.[9]
- [20]In its appeal, the State contends that the Commission, in making the decision that the internal decision was not fair and reasonable, erred in law because:
- the Commission reached its conclusion solely on the basis that the approach taken to the internal decision making was that it did not comply with the Policy or the Guideline and did not consider whether the internal decision was fair and reasonable;
- the Commission failed to apply the correct legal test of whether the internal decision was fair and reasonable and instead conducted its own merit-based review;
- the Commission failed to take into account relevant considerations in determining whether the internal decision was fair and reasonable within the meaning of s 562B(3) of the IR Act; and
- the Commission, in failing to decide that the internal decision was fair and reasonable under s 562B(3) of the IR Act, applied the wrong legal test because the internal decision was not, on the material before it, other than fair and reasonable.
- [21]The State also contends that the Commission acted in excess, or want, of jurisdiction in setting aside the internal decision and substituting the decision because the orders made could only have been made if the Commission determined the internal decision was not fair and reasonable under s 562B(3) of the IR Act.
The provisions of the IR Act dealing with legal representation
- [22]By virtue of s 530(5)(a) of the IR Act, the State, in being represented by a lawyer who is employed by it, including a lawyer employed in the Crown Law business unit of the Department of Justice and Attorney-General, is taken not to be represented by a lawyer.[10]
- [23]The effect of s 530(1)(a) of the IR Act is that a party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer[11] only if for proceedings before the Court:
- all parties consent; or
- the Court gives leave; or
- the proceedings are for the prosecution of an offence.
- [24]In considering whether or not to give leave for a lawyer to represent a party or person, the Court may give leave only if:
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;[12] or
- 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;[13] or
- 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.[14]
- [25]In the present case, in the absence of consent, if the State wishes to be represented by private counsel, leave needs to be given to it pursuant to s 530(1)(a)(ii) of the IR Act.[15]
The State's submissions
- [26]The State contends that the Court's discretion, to grant leave for the legal representation it seeks, is enlivened because of the application of s 530(4)(a) of the IR Act.
- [27]In its written submissions, the State submitted that:
- being given such leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, in that:
– the appeal involves complex questions of law because the grounds of appeal raises issues of statutory interpretation and of drawing the line of demarcation between conclusions which attract the correctness standard of appellate review and those which attract the deferential standard applicable to appellate review of an exercise of discretion;
– the grounds of appeal put in issue:
- whether the Commission's determination that the internal decision was not fair and reasonable was a discretionary determination, which can only be appealed on House v The King[16] grounds, or whether it was an evaluative conclusion as to the application of a legal criterion to which the correctness standard applies; and
- whether the internal decision was 'fair and reasonable' within the meaning of s 562B(3) of the IR Act, which will require the Court to consider the meaning of that term in the context of an appeal against a fair treatment decision involving a decision made under s 28(1)(b) of the IR Act to grant a flexible working arrangement request in part; and
- whether a decision made under s 28(1)(b) of the IR Act is fair and reasonable if it is made on reasonable grounds as required by s 28(2); or
- whether such a decision nevertheless can be other than 'fair and reasonable' and if so, what other circumstances can render a decision under s 28(1)(b) made on 'reasonable grounds' other than fair and reasonable; and
- the circumstances of its present appeal can be distinguished from the decision of the Court in State of Queensland v Dodds ('Dodds')[17] in that the complexity of the present case means that there is a capacity for significant enhancement of the level of efficiency if it was represented by private counsel; and
- there are no competing considerations against the exercise of the discretion to grant such leave in its favour in that Mr Hume would not be disadvantaged by it being represented by private counsel because he is being represented by an industrial advocate.
- [28]In its written submissions in reply and in oral submissions, the State further submitted that:
- its representation by private counsel would enable the proceedings to be dealt with more efficiently because of the speciality of private counsel's skill in oral advocacy and the presentation of legal argument and legal analysis; and
- Mr Hume's submissions that evidence needed to be presented by the State - to prove that it being given leave to be represented by private counsel would enable the proceedings to be dealt with more efficiently - is misplaced because that is a matter that the Court, in exercising its judgment, can assess itself.
Mr Hume's submissions
- [29]In his written submissions, Mr Hume submits that:
- the matter being complex is not a trigger for the Court's discretion to grant leave;
- the trigger is that the Court has to believe that the granting of leave enables the proceedings to be dealt with '… more efficiently' having regard to the complexity of the matter;
- the State can be represented by any of its employees, including legal officers in any Department including Crown Law, which has numerous employees specifically employed to represent the State before industrial tribunals in the most complex of cases; and
- the State has advanced no explanation or evidence as to why the Court should arrive at a conclusion that by granting it leave to be represented by private counsel, that would allow the proceedings to be dealt with more efficiently.
- [30]In oral submissions, it was further submitted that:
- even if the Court's discretion is triggered, there is still a general discretion as to whether or not leave should be granted;
- by having regard to the examples included in s 530(4) of the IR Act, the decision in Dodds at paragraph [49] sub-paragraph 3, the decision in Warrell v Walton at paragraph [24][18] and by reference to the Explanatory Memorandum to the Fair Work Bill 2008 concerning cl 596 of that Bill,[19] the exercise of the general discretion should be guided by further consideration of the matters of efficiency and fairness between the parties, rather than merely the convenience or preference of the parties;
- by reference to a particular decision of the Full Bench of the Queensland Industrial Relations Commission (involving an interim wage increase sought by Together) which was reversed on appeal by this Court, and in respect of which a judicial review application to quash the Court's decision was dismissed by the Supreme Court of Queensland, the involvement of private counsel does not always lead to or guarantee a more efficient proceeding in that in the Full Bench proceeding, '… the presence of counsel led to a [F]ull [B]ench [straying] into error - jurisdictional error' which had to be corrected on appeal;[20]
- the Court's discretion, pursuant to s 530(4)(a) of the IR Act, is not triggered in the present matter because it is not complex in that the issues on appeal involve questions of law, as was the case in Dodds;
- in Dodds, Davis J, President, did not give leave for the State to be represented and, similarly, leave should be refused in the present case; and
- even if the Court's discretion, pursuant to s 530(4)(a) of the IR Act is triggered, as a matter of fairness, the discretion should not be exercised in favour of the State because it is in fact being represented by lawyers from Crown Law.
The construction of s 530(4)(a) of the IR Act
- [31]Section 530(4) of the IR Act provides:
- (4)An industrial tribunal may give leave under subsection (1) only if-
- (a)it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
- (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
- (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.
Examples of when it may be unfair not to allow a party or person to be represented by a lawyer-
• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
• a person is from a non-English speaking background or has difficulty reading or writing
- [32]The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose; and context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense.[21]
- [33]In my opinion, s 530(4)(a) of the IR Act should be construed in the following manner.
- [34]First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c).
- [35]Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court.[22] The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.[23] That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer.[24]
- [36]Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.'
- [37]Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.
- [38]Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.
- [39]By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.[25]
- [40]Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.
- [41]Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.
- [42]Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.[26]
- [43]The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.
- [44]As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.[27]
Would giving leave to the State to be represented by private counsel enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter?
Complexity of the matter
- [45]Having regard to the decision and to the State's grounds of appeal, the controversies the subject of the State's appeal concern:
- the nature of the review to be conducted by the Commission in deciding the appeal against the internal decision;
- the test to be applied in determining whether the internal decision was 'fair and reasonable' within the meaning of s 562B(3) of the IR Act; and
- whether the Commission acted in excess, or want, of jurisdiction in making the order that was made in circumstances where the internal decision appealed against was, but for the errors allegedly made by the Commission, fair and reasonable.
- [46]On any objective view, there is some complexity to the controversies the subject of the State's appeal.
- [47]Mr Hume submitted that the present case is no different to Dodds in that both involve alleged errors of law and therefore the same result should ensue. In my opinion, the questions of law in the present case are readily distinguishable from the questions of law in Dodds. In that case, the matters were whether the State had been denied procedural fairness and whether the Industrial Commission, by pointing to the form of order that was made, had asked the wrong question. In making a decision not to exercise his Honour's discretion to give leave to the State to be represented by private counsel, Davis J, President, stated that the appeal was '… a very simple one' to be resolved by:
- considering whether, by directing that the parties could apply for an oral hearing, the State was given a proper opportunity to put its case; and
- considering the reasons for judgment to determine whether the Industrial Commission had asked the correct question.[28]
- [48]In my opinion, the questions of law that require determination in the present case are different to those that presented themselves to Davis J, President, in Dodds. They include, in particular, whether the Commission's determination that the internal decision was not fair and reasonable was a discretionary determination or whether it was an evaluative conclusion; and whether or not the Commission correctly conducted the review of the internal decision within the meaning of ss 562B(2) and (3) of the IR Act. These are more complex issues than those raised in Dodds.
- [49]For these reasons, the appeal is not a simple one. I do not accept Mr Hume's submission that the facts are the same as in Dodds, such that I should follow the decision in Dodds.
Would giving leave enable the proceedings to be dealt with more efficiently?
- [50]I do not accept, for the reasons advanced on behalf of Mr Hume, that giving leave for a party to be represented by private counsel may not lead to proceedings being dealt with more efficiently.
- [51]The fact that, in a particular case, a party was represented by counsel and a decision was made by a tribunal, which was later corrected on appeal and affirmed by way of judicial review, is not evidence that the involvement of counsel does not always lead to a guarantee of a more efficient proceeding. The fact that counsel, by virtue of his or her advocacy skills, persuaded a court or tribunal at first instance about a particular matter of law or about the interpretation of a provision of a statute, but which was overturned on appeal, does not mean that the proceeding before the primary tribunal was not dealt with efficiently. The fact that a decision made by a primary tribunal was wrong in law says nothing about the efficiency counsel brought to the determination of the first instance proceeding.
- [52]One of the criticisms made of the State was that it put on no evidence in support of its application for leave to be represented by private counsel. It may be that in a particular case, evidence from an applicant for leave to be legally represented, depending upon the basis upon which it is claimed the Court's leave is enlivened, should be put on in support of such an application if an applicant for such leave is to persuade the Court that leave should be given. In the circumstances of a particular case, the mere making of submissions may not be sufficient.
- [53]However, in the present case, the issues of the complexity of the matter and whether or not the State being represented by private counsel would enable the proceedings to be dealt with more efficiently can be readily assessed from the decision itself and the grounds of appeal. The determination of whether my discretion is enlivened, by having regard to s 530(4)(a) of the IR Act, is a value judgment I have to determine. Having regard to the particular facts of this case, namely, that it is an appeal against the decision of the Commission alleging errors of law, I can readily form such a value judgment by having regard to the decision itself and the grounds of appeal.
- [54]The submissions advanced by the State as to the greater efficiency to be brought to the proceedings, having regard to the complexity of the controversies disclosed by the State's grounds of appeal, are persuasive.
- [55]One of the main areas of the demonstration of professional skill by counsel is the ability to present oral argument about complex legal issues in a concise manner so as to efficiently assist a court or tribunal to understand the matters in issue. True it is that the State is presently represented by lawyers employed by Crown Law. However, it is the specialised skill of private counsel that comes to the fore in concisely identifying the material issues for determination and in making precise arguments to assist the Court in resolving the issues in question.
- [56]Having regard to the relatively complex issues on appeal, my opinion is that counsel in private practice would, in a manner that is concise and specific, assist the Court to understand the issues necessary to determine whether or not the decision is affected by error that vitiates the decision. In my judgment, that assistance would enable the proceedings to be dealt with more efficiently than would be the case if the State was represented by lawyers employed by it.
- [57]For the above reasons, my opinion is that my discretion to give leave to the State to be represented by private counsel is enlivened. The next question is whether, having regard to the relevant considerations that arise from this case, I should exercise my discretion in favour of the State.
Should the discretion be exercised in favour of the State?
- [58]In my view, on the facts of the present case, a relevant consideration in respect of whether or not I would exercise discretion in favour of the State is the nature of Mr Hume's representation.
- [59]I was informed at the hearing of this matter that Mr McKay of Together will be representing Mr Hume in the appeal. It is reasonable to infer, given that Together is acting as agent for Mr Hume in the State's appeal, that Mr Hume is a member of that organisation. A benefit of Mr Hume's membership of Together is that he is being represented by an experienced industrial advocate from his union. As a consequence, the fact that the State may be represented by private counsel does not persuade me that Mr Hume would suffer any unfairness.
- [60]Further, I was not referred to any other decisions of the Court where the issues the subject of the State's grounds of appeal had been considered previously by the Court. Given that the issues have not been argued previously before the Court, the efficiency brought to the proceedings by private counsel, in making submissions about those issues, is also a consideration in favour of granting leave.
- [61]Mr Hume submits that because the State is in fact being represented by lawyers from Crown Law, that is a reason why the discretion should not be exercised in favour of the State. On the facts of the present case, that is a relevant consideration. However, for the reasons given earlier, the greater efficiency brought to the proceedings by the advocacy skill of private counsel outweighs that consideration.
- [62]There are no other circumstances thrown up by this case that militate against exercising my discretion in favour of the State.
Conclusion
- [63]For the reasons given, I will give leave for the State to be represented by a lawyer, namely, private counsel.
Order
- [64]I make the following order:
Pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, the Appellant is given leave, in this proceeding, to be represented by a lawyer, namely, private counsel.
Footnotes
[1] Hume v State of Queensland [2021] QIRC 272 ('Hume'), [1]-[2].
[2] Ibid [3].
[3] Ibid [49].
[4] Hume (n 1), [32].
[5] [2019] QSC 170, [207]-[210].
[6] [2013] HCA 18; (2013) 249 CLR 332, [63]-[76].
[7] Hume (n 1) [40].
[8] Ibid [46].
[9] Ibid [47].
[10] Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008, [39]‑[40] (Martin J, President).
[11] A lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007; Acts Interpretation Act 1954 sch 1 (definition of 'lawyer').
[12] Industrial Relations Act 2016 s 530(4)(a).
[13] Industrial Relations Act 2016 s 530(4)(b).
[14] Industrial Relations Act 2016 s 530(4)(c).
[15] State of Queensland v Dodds [2021] ICQ 007 ('Dodds'), [37] (Davis J, President).
[16] [1936] HCA 40; (1936) 55 CLR 499.
[17] Dodds (n 15), [37] (Davis J, President).
[18] [2013] FCA 291; (2013) 233 IR 335 ('Warrell') (Flick J).
[19] Extracted in Warrell Ibid [25].
[20] T 1-14, l 44 to T 1-15, l 8. As I understand the submissions made on behalf of Mr Hume, these decisions are Together Queensland, Industrial Union of Employees and Others v Chief Executive of the Public Service Commission [2013] QIRC 44 (Vice President Linnane, Deputy President Bloomfield and Commissioner Thompson), Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Others [2013] ICQ 9 (President Hall) and Chief Executive of the Public Service Commission v The President of the Industrial Court of Queensland & Anor [2014] QSC 122 (Philip McMurdo J). In the first case mentioned, being a decision of the Full Bench of the Queensland Industrial Relations Commission, the decision was that the Commission did not have jurisdiction to make an order for an interim wage increase pursuant to s 149(2)(b) of the Industrial Relations Act 1999.
[21] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ).
[22] See Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 546 (Toohey and Gaurdon JJ).
[23] See R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563 ('Heffernan'), 568‑569 (Kelly J with Stable SPJ and Dunn J at 570 agreeing) and see NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, [47] (Redlich and Harper JJA and Curtain AJA).
[24] Warrell (n 18), [24].
[25] See Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128, [27] and [36] (Vice President Hatcher, Deputy President Dean and Commissioner Wilson) in respect of the meaning of 'matter' as used in the comparable provisions in the Fair Work Act 2009, namely, ss 596(1) and (2).
[26] R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20, 32 (Dixon J) and Heffernan (n 23), 569.
[27] A similar view was expressed by the Full Bench of the Fair Work Commission in respect of s 596(2) of the Fair Work Act 2009 in Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434, [23] (Vice President Hatcher, Deputy President Mansini and Commissioner McKinnon).
[28] Dodds (n 15) [47].