Robertson v McDonald's Australia Limited (No 2)
[2023] ICQ 28
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- Unreported Judgment
- Robertson v McDonald's Australia Limited (No 2)[2023] ICQ 28
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Robertson v McDonald's Australia Limited (No 2)[2023] ICQ 28
Robertson v McDonald's Australia Limited (No 2)[2023] ICQ 28
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robertson v McDonald's Australia Limited (No 2) [2023] ICQ 28 |
PARTIES: | Robertson, B (Appellant) v McDonald's Australia Limited (Respondent) |
CASE NOS.: | C/2023/29 C/2023/31 |
PROCEEDING: | Application for leave to be legally represented |
DELIVERED ON: | 23 November 2023 |
MEMBER: | Hartigan DP |
HEARD AT: | On the papers |
ORDER: | That leave be granted for the Respondent to be legally represented in the proceedings pursuant to section 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPLICATION FOR LEGAL REPRESENTATION – 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 – where the appellant opposed the application – whether leave to be represented ought to be granted to the respondent |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld), s 530 |
CASES: | Oratis v Melbourne Business School [2014] FWCFB 3869 State of Queensland v Dodds [2021] ICQ 7 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 |
Reasons for Decision
Introduction
- [1]
- [2]The Appellant objects to leave being granted for the Respondent to be legally represented.
- [3]The question for my determination is whether leave should be granted for the Respondent to be legally represented in the proceedings.
Background
- [4]The Appellant lodged a complaint on 5 September 2020 alleging discrimination in applying for employment with the Respondent in contravention of the Anti-Discrimination Act 1991.[3]
- [5]The Queensland Human Rights Commission referred the complaint to the QIRC on or around 11 February 2021.
- [6]At an interlocutory stage, the QIRC, inter alia, dismissed proceedings B/2023/27 and AD/2021/7. Relevantly, AD/2021/7 was dismissed for the following reasons:[4]
- [63]Given Mr Robertson's three unsuccessful attempts, from February 2021, to file and serve a proper statement of facts and contentions, I have no confidence that, if I struck out Mr Robertson's third statement of facts and contentions and gave him leave to file and serve a fourth statement of facts and contentions, Mr Robertson would be able to file and serve a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet.
- [64]The history of Mr Robertson's three unsuccessful attempts to file and serve a statement of facts and contentions strongly supports my conclusion.
- [65]For these reasons, pursuant to r 45(3)(a) of the Rules, I will dismiss Mr Robertson's proceeding in AD/2021/7.
…
- [7]As noted above, the Appellant subsequently filed two appeals.
- [8]The grounds of appeal in C/2023/29 are as follows:
Where the member is held hostile (common and legal definition) as to the arguably social impact case. Where the disparity between the parties is at the highest end, Two barristers AND Two Senior Counsel (notwithstanding) M.A.L have already some 17 lawyers VS.R.L [sic], no council, no advice (generally) speaks as to events engineered in part by the Deputy.
2. The reader may reflect us to this in as to form their own opinion/s if any, as to events.
Where the members position is spurious and extraneous.
Where SILENTLY influence as to events is known and stated to occur, the exemption "gifted" the largest employer where franchises are included of "Juniors" in QLD and (Australia); and clear example of wanton excess by way of malice.
The actions present as a mistake, possibly deliberate or a silent waiver, which is procedurally hostile.
Where the applicant is aware of issues as to to [sic] "issues".
Where Merrell's (D.P) action re [sic] refused order is but One.
Where due process, is offended, possible illegality ( not by the applicant).
Thus the applicants position is known as to be non (read sub);substandard.
Where the member sought advantage for his own benefit as to distance ( preclude) the applicant's efforts.
Where he sought to do so under the guise of as to expedite matters.
3.Where indeed the power exists for the exemption is not discernable [sic].
Where the oddities of the commission impede due process.
Where after 2 Years expedite (by way of seeking to exclude relief) as to its argued a clear and unquestionable basis D.O.B
4. Willmot V Woolworths Q C.A.T 601 reverently p 44,51.
Where age discrimination was sought allowed by the member and/or the state of Queensland.
Where the member violated or waived silently s 454 I.R act.
5.Where Commonwealth legislation Age Discrimination act s 18(1) (a)(b)(c). 2(a)(b)(c)(d).
Where 463/463 conflict.
Where Commonwealth legislation prevails.
Where council if aware and held to have been fairy required to have known of 463 ( option) and did not expedite matters.
Where not expediting matters offends Paramount Duty, stated also to have been offended by the council and the respondents.
Where pursuant to s 424 I.R act, s 454 presents as not option (preventing discrimination) disregarding the act by way of gifting (?) exemption does not suffice. Where S 124 A.D act is offended.
…
- [9]The grounds of appeal in C/2023/31 are lengthy and for ease of reference have been attached as an annexure[5] to these reasons. As can be seen from the grounds of appeal in both appeals, the Appellant raises broad ranging matters in both fact and law, some of which do not appear to immediately arise out of, or are connected to, the decision subject to the appeals.
Relevant legislation
- [10]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.
- 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—
- for proceedings in the court—
- all parties consent; or
- the court gives leave; or
- the proceedings are for the prosecution of an offence; or …
- An industrial tribunal[6] may give leave under subsection (1) only if—
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; 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; 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.
…
- [11]
Should leave be granted for the Respondent to be legally represented?
- [12]In support of its application, the Respondent makes the following submissions:
- The Appellant has made a "multitude" of interlocutory applications and appeals. Given the volume of materials filed and the current workload of the Respondent's in-house lawyers, the assistance of external legal representation will allow the Respondent to properly prepare and presents its case.
- That Collins Biggers & Paisley Pty Ltd has been instructed since the Appellant commenced their complaint against McDonald's. In these circumstances, granting the Respondent leave to be legally represented in these appeals will enable the matters to progress efficiently and effectively.
- [13]Further, in support of its position the Respondent submits that the frequency and nature of the documentation produced by the Appellant has added to the complexity of the proceeding. The Respondent provides the following submissions with respect to the documentation produced by the Appellant:
The documentation and communication in relation to the matters are voluminous. Mr Robertson has sent in excess of 1,000 emails relating to his complaint - to the QIRC, Court, various employees of McDonald's, other government entities, other law firms and Collins Biggers & Paisley Pty Ltd. Further, the subject matters of his complaints, proceedings, appeals and communications often fall outside the ambit of the Anti-Discrimination Act 1991, ranging from IT, data protection, privacy to corruption and other salacious matters.
- [14]The Appellant strongly opposes the application and submits that they are "personally embarrassed, if not ashamed to be associated with legal practices… before and with the court". It appears from the Appellant's submissions that they contend that the Respondent's solicitors "acted improperly" in proceedings AD/2021/7 and did not adhere to what the Appellant calls a "paramount duty". In support of their position, the Appellant makes scandalous and unsupported allegations regarding the conduct of the solicitors before the QIRC.
It lies to the court.
It slowed efforts in near all instances as to the last Due Date.
…
- [15]Overall, the Appellant raises concerns with respect to the alleged conduct of the Respondent's solicitors before the QIRC and submits that granting leave for the Respondent to be legally represented in the appeals is a "breach of duty of care" and "a breach of the right to a fair trial".
- [16]The Appellant also raise matters with respect to a decision released in proceedings AD/2022/6. In particular, the Appellant submits that the lawyer in that matter appeared before the commission without leave and that the lawyer presented privileged documents to the Commissioner.
- [17]The Appellant's submissions regarding the alleged conduct of other lawyers in other unrelated proceedings (being AD/2022/6) is not relevant to my consideration of this application.
Section 530(4)(a) consideration
- [18]Consideration must be had as to whether granting leave for the Respondent to be legally represented would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter.
- [19]The potential complexity arises in these appeals from the broad ranging nature of the grounds of appeal coupled with the volume of material the Appellant has produced arising from the course of the appeal.
- [20]In determining whether a matter is complex regard need not be had to conducting a comparison with other proceedings, but rather, regard should be had to the complexity of the matter.
- [21]Given the broad ranging nature of the grounds of appeal and the absence of any identification of the provisions the Appellant relies on in bringing the appeal, together with the large volume of material produced by the Appellant including a number of interlocutory applications, I consider the matters raised to be complex.
- [22]Relevantly, I consider that it will assist the Court and the parties if at least one of the parties is legally represented to ensure that the appeals remain focussed on the real issues to be determined during the hearing of the appeals.
- [23]For these reasons, I consider that the proceedings will be dealt with more efficiently if leave were to be granted. Accordingly, the factors weigh in favour of the exercise of the discretion to grant leave.
Section 530(4)(b) consideration
- [24]Leave may be granted if it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent its interests in the proceedings.
- [25]In this regard, the Respondent contends that it is unable to efficiently represent itself as it does not have sufficient in-house resources to do so. Whilst I accept the in- house lawyer who has carriage of this matter works part-time and states that they would not have adequate time to present and prepare for the appeal.[9] I am not satisfied that the evidence adequately deals with all the in-house legal capabilities of the Respondent. Accordingly, I do not consider that the factor weighs in favour of the exercise of the discretion.
Section 530(4)(c) consideration
- [26]Leave may be granted if it would be unfair not to allow the Respondent to be represented having regard to fairness between the parties.
- [27]In this regard, the Respondent has been legally represented before the QIRC, and contends, it would be fair (and efficient) for legal representation to also be granted in respect of the appeals.
- [28]The Appellant contends that it would be unfair to grant leave for the Respondent to be legally represented.
- [29]The Appellant has raised serious and scandalous allegations regarding the conduct of the Respondent's legal representations before the QIRC. The allegations are unsupported by evidence and are lacking in particulars. At this juncture, they are no more than bald assertions made by the Appellant in their submissions. For this reason, I place little weight on the allegations made by the Appellant.
- [30]In Wanninayake v State of Queensland (Department of Natural Resources and Mines)[10], Neate IC relevantly held:
The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.
To the extent that a self-represented party considers it likely that they will be at some
disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.
I am satisfied that, having regard to the matter the proceedings relate to, there are special circumstances that make it desirable for the respondent employer to be legally represented. Consequently, in matter B/2014/17, the application is successful, and I grant leave for the respondent employer to be represented by a lawyer."
…
- [31]A legal practitioner's paramount duty is to the Court. There is an expectation if leave is granted, that the legal representative will conduct themselves with probity, candour and honesty in accordance with either, relevantly, the Australian Solicitors Conduct Rules or the Barristers Rules.
- [32]I am satisfied that these obligations, coupled with the Court's conduct of the proceedings will safeguard against any concern the Complainant might have regarding matters going to fairness.
- [33]In all the circumstances, it is appropriate to grant McDonald's leave to be represented by solicitors instructing counsel in private practice.
- [34]For the above reasons I order that leave is given to McDonald's Australia Limited to be represented by solicitors and counsel upon the hearing of the appeal.
Order
- [35]Accordingly, I make the following order:
That leave be granted for the Respondent to be legally represented in the proceedings pursuant to section 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld).
ANNEXURE ONE
A.D 2021/7 R v M.A.L
Applicants appeal as to the dismissal of said matter.
1. Where pursuant to 557 (2) I.R act the applicant seeks leave that the appeal is heard on grounds other than 557 (1).
Where actions variously repeatedly and numerously have visited and been sought imposed of the applicant centrally as to social standing and presumed want.
Where from and including customer service unit to the Q.I.R.C President Davis impropriety is alledged.
Where the respondent and council are included ,even if by way of such benefits as to the action/s inaction/s of parties and individuals. Where variously and numerously the applicant was sought reckless indifference as to punitive exclusion.
2.Where the applicant a S.R.L was vilified, and victimized for their long standing efforts as to transparency and accountability long known ( from the first day of a Two Year Plus arguably saga )
Where commissioner Dwyer, Deputy Merrell, the Registrar Shelley and President Davis ,Customer Service unit manager Jessica "Jess “and Client service Coordinator Brianna where all complained of variously to and including P.I.D/S.
3. Where issues where variously made known or attempted made known to the president, C.M.C, D.J.A.G (Ethical standards) Manager Neil Lawson The Minister "Grace Grace" Shannon Fentiman ,Yvette Darth ,Anastasia Palaszczuk ,Premier and Cabinet portfolio.
> > > Where the applicant was deliberately excluded from receiving replies as to such efforts . Limited to auto replies, generally as to exclusively.
Where politicians are involved despite (but because of their inaction, official misconduct ).
4. Where the applicants was and remains largely ignored ( or rather sought ignored) where parties named individually to collectively have offended
S 101 Anti-discrimination act (a)(b)(c)(d)(e).
Crime and Misconduct act s 35 (1) (a) re a complaint as Per s 14 (a) (b) (c).
Where in A.D 2021/7 Robertson V Mc Donalds Australia Limited.
5.The but not limited to the following occurred.
Where the matter was transferred from the Q.H.R C without applicant’s address being recorded.
Where legislation has it as mandatory.
Where council did not list S.R.L's address in notice of appointment.
Within what was proposed as conciliation.
the member Commissioner Dwyer herein (C.D) sought to question the S.R.L as P 1
to (implied/imputed) mental health issues if any in announced and extraneous (vile) manner. Where then for the question was both predatory and repugnant.
Directly following my reply (declined to reply) words to the effect 'without knowing I cannot assist you".
Where members assistance is not sought.
Where the likelihood of needing assistance was not with the S.L.R leastways not from the commissioner ,and with such behaviors.
6. Where the applicant is now aware that the member within events (over some Months) violated Australian and New Zealand code of conduct 4.1 .
S 101 A.D act.a/b/c/d/e
S 15 Qld Human Rights act
The right to a fair trial.
S 35 (a) (1) Crime and Act, as Per S 14 Official misconduct.
Where within conciliation (C.D) did not explain the interlocutory process.
Did not state the call was recorded.
Did not inform the S.R.L their rights did not caution the applicant.
7. Where the arguments as presented as to the claim/case by the applicant was stated by (C) D' quote "it would fail" unquote.
Prejudgment is stated of C.D.
Where a notion an idea if you will by (C.D), where the idea was unsought as to how the matter maybe settled (so to speak).Money /monies form the basis for most settled matters, where the notion may have been rejected....
Essentially the applicant was told the argument / case would " fail "and a sum of money was spoken of.
8. Where the applicant us now aware thus was Undue power and influence.
Where (later within events) C.D quote Vulnerable unquote of the applicant.
Where the applicant was by way of imputed as to health failings.
9. Matters it maybe said declined thereafter and Two Years
Two Months and a Week later matters revisit the commission / Industrial court. It is noted at public expense.
10.Where M.A.L violated Equity of arms
Excess of council ,where M.A.L has 17 plus Lawyers however choose to retain council.
Where council was 2S/C where 2 Barristers where retained without notice ,appearing without notice or leave ( 1applied 1did not ) P 2
Where the (C) Dwyer did not in the first instance inform the S.R.L as to the option to appeal the granted leave (first C.B.P 2 lawyers then later 2 Barristers.
11. Where the President was emailed repeatedly numerously as to the excess of C.D.
Where there was NO reply.
Where administration of the Q.i.R.C is their responsibility
Where the registrar stated (15/5/21) that carriage was with C.D.
Where the S.F.A.C was understandable.
12. Where council repeatedly lied as to not being able to understand any S.F.A.C.
Where C.D ordered the applicant retain and maintain council.
Where L.A.Q and not unnoted the legal "industry" had little to no interest.
L.A.Q merit test was silently ( I alledge ) considered L.A.Q.
sought to distance themselves insofar as possible.
13. Where the order to retain and maintain council was by design onerous vile.
Where the deputy imputed ( unannounced) health as to be central and thus the impost.
Where the applicant was aware of rather more as to events than the commissioner.
Where a lawyer was for all intents and purposes not to be had.
Where some 35 plus parties including primarily lawyers ,advocates ,unions groups rejected overtones as to their interest.
14 L.A.Q refused advice past 2 sessions .
Where access to "justice" was not had ,properly adequately or as required.
Where 2 (Hour) sessions of advice is inadequate as to farcical.
Where the applicant's efforts where the greater part of 1000 Hours.
Where the costs both financial ,and personally are considerable as to unwise.
Where O.H.S / H.S considerations where not respected.
15. Where council deliberately consumed in near all instances the entirety of the permitted timeframes as to events Where the replies (misleading ) to S.F.A.C alone consumed greater than Three Months.
Where there was and is no difficulty in the case being presented as unpopular to exceedingly rare and unusual Where the order was appealed.
16. Where the appeal was the sole effort of the applicant where the appeal consumed Sixty (60) Hours.
Where a Peta Willoughby appeared without leave within the appeal process or as understood ( where they / She did seek leave within the mention or as understood before the President).
Where the applicant contested the granted ,where the President "Horse traded".
Where the Barrister ( of whom had it would held had no brief to do so waived
Where the applicant is itinerant. P 3
17. Owns no computer (capable of word).
Where public access computers and virtual assistants the only option as to satisfy the Q.I.R.C requirements.
Where an application to have the "word' type format waived was dismissed
Where form 2a was used as to enquire as to the commissions position that I may email ( a schedule ) attachment.
Where anonymous ( repeatedly anonymous ) replies refused to file the application "the matter is finalized".
Where the matter was not finalized
Where the applicant employed a virtual assistant (the Fourth).
Where the applicant then to ensure its presentation and as to the extent possible as to oversight the appeal. travelled 120 kilometers as to access a public computer
They however did not require or appreciate needless impost by way of a emailed ( schedule) in this appeal .
18. The Commissioner Dwyer order.
Where Peta Willoughby as a barrister had certain professional standards required of them / her .
She choose for reasons best known to her to offend the professional considerations.
Where the appeal was upheld.
Where the matter was then before the deputy Merrell.
Did matters improve?
They did not
Where the applicant is itinerant.
19.Owns no computer (capable of word).
Where public access computers and virtual assistants of the only option as to satisfy the Q.I.R.C requirements. “word " document .
Where an application to have the "word' type format waived was dismissed
Where form 2a was used as to enquire as to the commissions position that I may email ( a schedule ) attachment.
20. Where anonymous (repeatedly anonymous) replies refused to file the application "the matter is finalized". Where the matter was not finalized that appeal/s maybe made .
Where
Where the applicant travelled 110 Kilometers as to access a public access computer.
Where the newly introduced policy excludes the applicant for an appeal consumes greater than Two Hours.
21.Where One local council has a Two Hour Maximum use (despite there being no other/s seeking to utilize the computer). P 4
Where access to a computer “word” deice has been on Four occasions, refused, Rockhampton, Mackay, Southern Downs, Gympie Regional councils.
Where the refusal was based on local policy as to require membership as to access computer terminal use. Where the requirement is not standard, nor ethical, or legally required. Where however the applicant was further disadvantaged.
22.Where the refusals and limits, presented as a serious issue as to access to resources.
Where the respondent has no practical limits as to resources. Where M.A.L has a market value of some 1.4 Billion Dollars.
23.Where the disparity between the respondent and the applicant are at the higher /highest end. Where the commission council and the respondent are aware as to this being or likely being accurate. Where a lawyer was for all intents and purposes not to be had. Where some 35 parties primarily lawyers and to a lesser degree advocates ,unions, groups rejected overtones as to their interest.
L.A.Q refused advice past 2 sessions .Where access to "justice" was not had ,properly adequately or as required.
Where 2 (Hour) sessions of advice over 2 Years and 14 Mentions or as understood is inadequate as to farcical.
Primarily farce and contrary to s 15 QLD H.R.A Right to a fair trial.
23. Where the applicant's efforts consumed Hundreds of Hours literally.
Where the applicant stopped counting some time ago
Where the costs both financial ,and personally are considerable as to unwise.
Where O.H.S / H.S considerations where not respected.
Where council deliberately consumed in near all instances the entirety of the permitted timeframes as to events Where the replies (misleading ) to S.F.A.C alone consumed greater than Three Months.
24. Where there was and is no difficulty in the case being presented as unpopular to exceedingly rare and unusual
Where the order as to retain ,maintain legal representation was appealed.
Where the appeal was the sole effort of the applicant where the appeal consumed Sixty P 5 (60) Hours.
Where a Peta Willoughby appeared without leave within the appeal process or as understood ( where they / She did seek leave within the mention or as understood before the President).
25.Where the applicant contested the appearance ,where despite the improper route and process that saw a Barrister simply appear announced to the applicant.
Where the President "Horse traded".
Where the Barrister ( of whom had it would held had no brief to do so waived costs )
Where Leanne Dearlove had in an abuse of process stated M.A.L intended to pursue costs.
26. Why this is presented as to considered is that the President despite no application from the applicant engaged ( in a conversation ) Ms. Willoughby, as to costs.
Would M.A.L not seek costs of the applicant ,contingent that leave to appear would be granted
Willoughby agreed , by way of self-interest , namely a substantial fee I.E hers.
27.Where the applicant was of the position, that due process was not for the act by the president was unsought and partial (however well meaning).
Partial revisited events later, and the president features centrally, as to be alledged variously as to breach s 35 1(a) Crime and Misconduct act, where s 14 a/b/c/d/e is the definition (official misconduct).
28. Where D.M (Deputy Merrell) dismissed applications where the applicant sought a stay (not less than however understood on Four occasions).
Where the stay was based on L.A. Q’s delays, as to sought oversight of a refusal to provide legal advice. Where the practice of L.A.Q is limit advice, legal advice to One session, per matter.
Where the applicant received Two sessions.
Where L.A.Q refused point blank or as understood a to refuse further advice.
Where the applicant, despite this requested variously and numerously advice.
Where it was refused P 6
29. Where the applicant identified the need and the materially altered matters that required (on balance) legal; advice by way of “access to justice”.
Where the materially altered case, matters, where refused.
Where the applicant sought oversight.
Where after SIX AND A HALD MONTHS, L.A.Q has not made a determination.
Where L.A.Q the matter as being “unique”.
Where the matter is held as to be “pioneering” Michael Strong L.A.Q oversight manager.
30. Where after FIVE Months, legal advice was not had (by L.A.Q) as to the matter.
This was stated, this reflects the inaction that has altered a court matter .
Where the applicant is unarguably (most certainly on balance) disadvantaged.
Where three attorney generals where emailed as to s 63of the legal; aid act.
Where directive/s where sought considered.
Where Two of Three (FENTTIMAN, AND D’ARTH) did not reply, and did not its noted formally receipt the sought directive.
Footnotes
[1] C/2023/29 and C/2023/31.
[2] Robertson v McDonald's Australia Limited (No. 8) [2023] QIRC 192
[3] Sections 7 and 124.
[4] Robertson v McDonald's Australia Limited (No. 8) [2023] QIRC 192, [62] – [65].
[5] Annexure one.
[6] Which includes the Court; Industrial Relations Act 2016, s 530(7).
[7] The relevant proceeding here.
[8] Oratis v Melbourne Business School [2014] FWCFB 3869, followed in State of Queensland v Dodds [2021] ICQ 7 at [38].
[9] Affidavit of Ms Nichola Longhurst filed 4 September 2023.
[10] [2014] QIRC 79, 6-7.