Robertson v McDonald's Australia Limited
[2022] ICQ 7
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- Robertson v McDonald's Australia Limited[2022] ICQ 7
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Robertson v McDonald's Australia Limited[2022] ICQ 7
Robertson v McDonald's Australia Limited[2022] ICQ 7
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robertson v McDonald’s Australia Limited [2022] ICQ 007 |
PARTIES: | [REDACTED] ROBERTSON (appellant) v McDONALD’S AUSTRALIA LIMITED (respondent) |
FILE NO/S: | C/2021/23 |
PROCEEDING: | Application for leave to be legally represented |
DELIVERED ON: | 21 March 2022 |
HEARING DATE: | 17 March 2022 |
MEMBER: | Davis J, President |
ORDER/S: | Leave is given to McDonald’s Australia Limited to be represented by solicitors and counsel upon the hearing of the appeal. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURAL AND OTHER MATTERS RELATING TO APPEALS – where the respondent is a major corporation – where the appellant is self – represented – where the respondent sought leave to be represented at the appeal by solicitors instructing private counsel – where the appellant opposed the application – where the respondent said that it was unfair to it not to allow the representation – where the respondent further said that representation would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter – where the respondent undertook to defend the appeal as if it were in the position of the model litigant – where the respondent undertook not to seek costs of the appeal against the appellant – whether leave to be represented ought to be granted to the respondent |
CASES: | Anti-Discrimination Act 1991, s 7, s 124 Industrial Relations Act 2016, s 530, s 557 Oratis v Melbourne Business School [2014] FWCFB 3869, followed Robertson v McDonald’s Australia Limited [2021] QIRC 344, related State of Queensland v Dodds [2021] ICQ 7, cited |
APPEARANCES: | P Willoughby instructed by Colin Biggers & Paisley Lawyers for the applicant for leave/respondent in the appeal Mr Robertson appeared for himself |
- [1]The applicant (McDonald’s) applies for leave pursuant to s 530 of the Industrial Relations Act 2016 (the IR Act) to be represented by solicitors instructing private counsel on the hearing of an appeal from a judgment given in the Queensland Industrial Relations Commission (QIRC).[1] McDonald’s is the respondent to the appeal.
- [2]The appellant to the appeal, Mr Robertson, resists the application.
Background
- [3]Mr Robertson applied for employment at a McDonald’s Mount Isa store in 2019.[2] On applying for the position, Mr Robertson was confronted with an application form which required him to select an age range within which he fell. That, Mr Robertson complains, is age discrimination in contravention of the Anti-Discrimination Act 1991.[3]
- [4]In due course, the Queensland Human Rights Commission referred the complaint to the QIRC.
- [5]Conciliation failed and a directions order was made which, relevantly here, required Mr Robertson to file a statement of facts and contentions by 30 June 2021 (SOFC). In due course, a document purporting to be a SOFC was filed by Mr Robertson.[4] On 4 August 2021, McDonald’s filed an application seeking that:
- the proceedings be dismissed on the basis that the complaint has no merit; or
- the proceedings be stayed until Mr Robertson obtains legal representation and files a clear and concise SOFC.
- [6]There were difficulties with Mr Robertson’s SOFC. However, the Industrial Commissioner was not prepared to dismiss the proceedings. In the end, it appears that was not an order which was vigorously pressed.[5] The real point of dispute was whether the proceedings ought to be stayed until Mr Robertson was represented in some way and filed a complying SOFC.
- [7]For reasons that will be relevant to the appeal, but not the present application, the Industrial Commissioner was not prepared to stay the proceedings indefinitely. He stayed them for a period of 12 months. He made the following orders:
“1. The application to dismiss or stay proceedings filed on 4 August 2021 by the respondent is dismissed;
- Pursuant to s 451(2)(b) and (c) of the Industrial Relations Act 2016 (Qld) matter number AD/2021/7 is stayed until 8 October 2022 or until further order; and
- Matter number AD/2021/7 be listed for mention on a date to be advised not before 8 October 2022.”
- [8]Although not specified as part of the formal orders, the Industrial Commissioner gave qualified leave to Mr Robertson to apply to lift the stay. Relevantly, the Industrial Commissioner said this in the reasons for judgment:
“[62] In all of those circumstances, I propose to stay these proceedings. I do not intend to stay the proceedings indefinitely. I intend to stay the proceedings for a period of 12 months.
[63] I further intend to allow Mr Robertson through an appropriately engaged independent representative to have leave to apply to lift the stay on the basis that the representative will be continuing to represent Mr Robertson. I consider Mr Robertson’s interests would be best served by representation from an independent person or organisation, skilled in advocacy in discrimination complaints.
[64] It ought to be understood that the effect of the stay is that, with the exception of an application from a representative acting on his behalf, no further communications will be entered into by my chambers or the Industrial Registry with Mr Robertson in these proceedings. The resources of the Commission and Industrial Registry are reserved for the administration of active matters.
[65] If no application to lift the stay is received from Mr Robertson in the 12 month period, I will give consideration to the final disposition of the matter following expiry of the stay.”[6]
- [9]The reference by the Industrial Commissioner in paragraph [64] of the judgment to no further communications being entered into with Mr Robertson is a reaction to Mr Robertson having sent many communications to his Associate and to the QIRC Registry.[7]
- [10]McDonald’s sensibly and properly accepts that the conditional grant of leave is a part of the orders made, notwithstanding the form of the orders as appear in paragraph [7] above.
The appeal
- [11]In its simplest terms, the appeal is very straightforward. There are two central issues:
- Is there an error of law or excess or want of jurisdiction[8] affecting the granting of the stay? and
- Is there an error of law or excess or want of jurisdiction affecting the imposition of terms upon which Mr Robertson can apply to have the stay lifted?
- [12]The application to appeal though is quite complicated. It was drawn by Mr Robertson himself and contains over 30 grounds. McDonald’s, in their outline of submissions on the present application, seek to categorise the grounds as follows:
“a) Ground 1: alleged bias on the part of the Commissioner;
b) Ground 2: that the Commissioner took into account irrelevant considerations;
c) Ground 3: that the Commissioner failed to take into account relevant considerations;
d) Ground 4: that the Commission’s decision was beyond its jurisdiction;
e) Ground 5: that the decision was made in bad faith; and/or
f) Ground 6: that the decision was otherwise unreasonable.”
- [13]That categorisation seems fair.
- [14]Section 530 of the IR Act relevantly provides:
“530 Legal representation
(1A) This section applies in relation to proceedings other than a proceeding for a public service appeal.
- (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—
- (a)for proceedings in the court—
- (i)all parties consent; or
- (ii)the court gives leave; or
- (iii)the proceedings are for the prosecution of an offence; or …
- (4)
- (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.
- (5)For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
- (a)an employee or officer of the party or person; or
- (b)an employee or officer of an entity representing the party or person, if the entity is—
- (i)an organisation; or
- (ii)an association of employers that is not registered under chapter 12; or
- (iii)a State peak council.
- (7)In this section—
industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.
proceedings—
- (a)means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
- (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—
- (a)chapter 8; or
- (b)section 471; or
- (c)chapter 12, part 2 or 16.”[10]
- [15]
- [16]I reject the submission made by McDonald’s that fairness has been made out as a ground for the granting of legal representation.
- [17]McDonald’s submission is that:
- McDonald’s head office is located in Sydney and all relevant personnel are located in Sydney; and
- the person within McDonald’s who has been handling the defence of Mr Robertson’s case is commencing extended leave and the replacement will be unable to master the material in time for the hearing of the appeal.
- [18]By s 530(5), any lawyer employed by McDonald’s, that is an in-house lawyer, may appear for the company without leave. McDonald’s is a major corporation who employs in-house lawyers. The appeal is to be heard on 20 April 2022, some weeks away, and I do not accept that an in-house lawyer could not master the material before the hearing of the appeal.
- [19]I accept that the appeal is of sufficient complexity to raise the discretion identified in s 530(4)(a). While, as I have observed, the central issues in the appeal are quite straightforward, the grounds which have been articulated by Mr Robertson are many and varied. They involve serious allegations, including bias of the Industrial Commissioner.
- [20]A specialist advocate instructed by solicitors experienced in litigation will enable the proceedings to be dealt with more efficiently than without a specialist advocate.
- [21]Mr Robertson strongly opposes the application. He submits that there will be an unjustifiable imbalance if McDonald’s are represented on the appeal by private counsel instructed by solicitors.
- [22]McDonald’s has given undertakings:
- to conduct the defence of the appeal as if it were in the position of the model litigant and by applying the model litigant principles;[13] and
- not to seek costs of the appeal against Mr Robertson.
- [23]In those circumstances, Mr Robertson will not be disadvantaged by McDonald’s being represented in the way they seek to be.
- [24]In all the circumstances, it is appropriate to grant McDonald’s leave to be represented by solicitors instructing counsel in private practice.
- [25]I order that leave is given to McDonald’s Australia Limited to be represented by solicitors and counsel upon the hearing of the appeal.
Footnotes
[1] Robertson v McDonald’s Australia Limited [2021] QIRC 344.
[2] And possibly earlier.
[3] Sections 7 and 124.
[4] 30 June 2021.
[5] At [40].
[6] The emphasis appears in the reasons for judgment.
[7] Robertson v McDonald’s Australia Limited [2021] QIRC 344 at [15] and following.
[8] Industrial Relations Act 2016, s 557(1).
[9] Which includes the Court; Industrial Relations Act 2016, s 530(7).
[10] Statutory examples removed.
[11] The relevant proceeding here.
[12] Oratis v Melbourne Business School [2014] FWCFB 3869, followed in State of Queensland v Dodds [2021] ICQ 7 at [38].
[13] “Model Litigant Principles”, Queensland Government, 4 October 2010.