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Mutonhori v Mount Isa City Council[2025] ICQ 1

Mutonhori v Mount Isa City Council[2025] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Mutonhori v Mount Isa City Council [2025] ICQ 001

PARTIES:

Mutonhori, Simon

(Appellant)

v

Mount Isa City Council

(Respondent)

CASE NO.:

C/2024/35

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

23 January 2025

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Leave is granted for the Respondent to be legally represented pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where respondent has applied for leave to be legally represented – where appellant opposes application – factors to be considered by the Court in determining whether to allow legal representation – complexity of the matter – where leave is granted for legal representation

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 529, 530

CASES:

Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240

Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16

Reasons for Decision

Introduction

  1. [1]
    The Appellant, Mr Simon Mutonhori, has filed an application to appeal, seeking, inter alia, that the decision of Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240 be set aside and that a decision be made to allow the Appellant an extension of time to file the general protections application outside the prescribed timeframe ('the proceeding').
  1. [2]
    The Respondent, Mount Isa City Council, has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act') in the proceeding.
  1. [3]
    The Appellant objects to leave being granted for the Respondent to be legally represented.

Relevant background

  1. [4]
    The substantive proceeding is an appeal of a general protection decision which, inter alia, dismissed the Appellant's application for an extension of time to file the part of the application that relates to dismissal and dismissed the Appellant's application in sofar as it related to the dismissal ('the decision').
  1. [5]
    The Appellant is seeking that the decision be set aside and replaced with one that finds that exceptional circumstances exist and allows an extension of time for the Appellant to file the general protections application outside of the prescribed timeframe.
  1. [6]
    The Appellant has raised numerous grounds for appeal. In the application to appeal, the Appellant contends that the Commission erred in law and fact by:
  1. Failing to give adequate reasons for his decision. The Commissioner relied on a generalised conclusion that allowing an extension time would disadvantage others in similar circumstances whose applications were declined in the past. Clearly, the Commission failed to examine this case on its own merit based on the relevant evidence provided. The two case laws he relied on couldn’t be more different.
  1. Failing to consider and give weight to contemporaneous and undisputed evidence of procedural unfairness in the disciplinary process. That the applicant was immediately suspended without a show cause notice after lodging his work place complaint; that his work place complaint was totally ignored in favour of the retaliatory allegations against him which expedited and eventually used to dismiss him; that the applicant was not privy to the investigation details and was not involved, etc.
  1. Failing to acknowledge and take into consideration work already dedicated into this case by 4 other Commissioners prior to him and given that none of the 4 Commissioners dismissed the applicant's case. The Commissioner barely mentioned these previous proceedings but rather brushed them aside as non-events. What a waste of time of the Commission, spending 7 months involving 4 Commissioners only to be dismissed by the 5th Commissioner with totally no regard or acknowledgement of the work already done by his colleagues.
  1. The Commissioner focused at length on wrong evidence claiming the applicant blamed late application on representation error. This was never raised by the applicant but the Commissioner dedicated a significant amount of time and effort on this irrelevant matter which weighs heavily in his mind when he formed his final conclusion. All of that led to the Commissioner being distracted and diverted from the facts relevant to this case in particular.
  1. [7]
    The Appellant also appears to attempt to raise further grounds in submissions made in support of the application to appeal.
  1. [8]
    On 18 December 2024, the Respondent filed a Form 4 - application in existing proceedings with an accompanying affidavit, seeking leave to be legally represented.
  1. [9]
    The Appellant filed submission in reply to the Form 4 – application, objecting to the Respondent’s request for leave to be legally represented.
  1. [10]
    The parties both filed further submissions in response to the application on 2 January 2025.
  1. [11]
    The Form 4 – application filed 18 December 2024 was taken as an application for legal representation and the Appellant's response filed 2 January 2025 was taken as an objection to the legal representation application.
  1. [12]
    It is relevant to note, as it is referred to in submissions by the parties, that in the matter below, the Appellant filed a Form 102 on 27 May 2024 consenting to the Respondent's request to be legally represented. By email dated, 27 May 2024 the Appellant indicated that he had "no objection for the Respondent to be represented" in the general protection matter and orders were subsequently issued granting leave.[1]
  1. [13]
    The question for my determination is whether leave should be granted for the Respondent to be legally represented in the appeal before the Industrial Court of Queensland ('the Court').

Relevant legislation

  1. [14]
    Section 529 of the IR Act relevantly states:

529 Representation of parties generally

  1. A party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented in the proceedings by—
  1. a lawyer, only in accordance with section 530; or
  2. an employee or officer of an organisation appointed in writing as the agent of the party or person; or
  3. if the party or person is an organisation—an employee, officer or member of the organisation; or
  4. if the party or person is an employer—an employee or officer of the employer; or
  5. another person appointed in writing as the agent of the party or person, only with the leave of the industrial tribunal conducting the proceedings.
  1. However, a party or person may not be represented under subsection (1) (e) by a person who—
  1. directly or indirectly demands or receives a fee for representing the party or person; or
  2. is an employee or officer of, or acting for, an entity (other than an organisation) that purports to represent the industrial interests of employees or employers.
  1. The industrial tribunal may give leave under subsection (1) (e) only if—
  1. giving leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. 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
  3. 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. In this section—

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

"proceedings" —

  1. means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1. includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.
  1. [15]
    Section 530 of the IR Act provides for legal representation in the following terms:

530 Legal representation

…

  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. for proceedings in the court—
  1. all parties consent; or
  2. the court gives leave; or
  3. the proceedings are for the prosecution of an offence; or

…

  1. An industrial tribunal may give leave under subsection (1) only if –
  1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. 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
  3. 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
  1. For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -
  1. an employee or officer of the party or person; or
  2. an employee or officer of an entity representing the party or person if the entity is -
  1. an organisation; or
  2. a State peak council; or
  3. another entity that only has members who are employers.
  1. In this section –

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

proceedings –

  1. means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  2. 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. chapter 8; or
  2. section 471; or
  3. chapter 12, part 2 or 16.
  1. [16]
    In Sillay v State of Queensland (Queensland Corrective Services),[2] the Court recently considered the statutory construction of s 530 as follows:
  1. [30]
    Section 529(1)(a) prohibits representation of a party by a lawyer except in accordance with s 530. By s 530(1)(e), proceedings before the QIRC15 may involve legal representation only by leave. The bases upon which leave may be given are prescribed by s 530(4).
  2. [31]
    The circumstances upon which a lawyer may appear before the QIRC are governed by ss 529 and 530 of the Act. If the discretion arises under s 530(4) to give leave to a party to be represented by a lawyer, then the discretion falls to be exercised. There are no presumptions as to how the discretion is exercised. However, no executive or judicial discretion vested by an Australian statute is unfettered. The discretion is limited and circumscribed by the purpose for which it was bestowed.
  3. [32]
    Section 530 has a typical structure. The factual circumstances prescribed by each of ss 530(4)(a), (b) and (c) are jurisdictional facts, the establishment of which empowers the QIRC to exercise a discretion to grant leave to a party to be legally represented.
  4. [33]
    Subsection (4)(a) requires the QIRC to be satisfied that legal representation “would enable the proceedings to be dealt with more efficiently” if lawyers represent a party. However, that assessment is limited. It is conducted “having regard to the complexity of the matter”.
  5. [34]
    The “matter” is the controversy the subject of the principal proceedings. The “proceedings” are the principal proceedings, namely the application for final relief.
  6. [35]
    The task then is to:
  1. (a)
    identify the complexity; and
  2. (b)
    identify how, “having regard to the complexity”, having a party represented by lawyers would “enable the proceedings to be dealt with more efficiently”.
  1. [36]
    Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness. However, the assessment to be conducted under each of the two subsections is quite different.
  2. [37]
    Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation. Legal representation “may” be allowed where it would be unfair to deny it “because the party or person is unable to represent the party’s or person’s interests in the proceeding”.18 Therefore, the first question is whether the party or person is “unable to represent [their] interests in the proceedings”. If the answer to that question is in the affirmative, then the use of the word “because” requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation.
  3. [38]
    Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings. Legal representation “may” be allowed where it would be unfair not to allow legal representation to the party. However, as with s 530(4)(a), the assessment is limited. The assessment of whether it would be “unfair” is made “having regard to fairness between the party or person, and other parties or persons in the proceedings”.
  4. [39]
    In conducting the assessment under s 530(4)(c), s 530(5) is relevant. A lawyer employed by a party (here the State) may appear for that party without leave. Therefore, when considering the unfairness to a party who employs lawyers, the question becomes whether it would be unfair not to allow the party to be represented by private lawyers rather than their own employed lawyers. That assessment then is had “having regard to fairness between the party … and other parties in the proceedings”.

Should leave be granted for the Respondents to be legally represented?

  1. [17]
    The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Court may grant leave if:
  1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter (s 530(4)(a)); or
  1. 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 (s 530(4)(b)); or
  1. 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 (s 530(4)(c)).
  1. [18]
    The Respondent relies on s 530(4)(a) in making the application.
  1. [19]
    The Appellant objects to the Respondent's application on, inter alia, the grounds that the Respondent's legal representative is in breach of s 530 of the IR Act by seeking to appear in the current proceedings and appearing in the proceedings below without express permission to do so. The Appellant contends that granting the Respondent leave to be legally represented would "regularise his illegal activity."
  1. [20]
    The Appellant's complaint seems to be based on an assumption that leave below was granted for a particular legal representative to appear for the Respondent.
  1. [21]
    The Respondent deposes to the Appellant having consented to leave being granted for the Respondent to be legally represented in the proceedings below through filing a Form 102 on 27 May 2024.[3]
  1. [22]
    The Appellant makes several serious allegations about the conduct of the Respondent's legal representative in the matter below and submits that, as a result of this conduct, the Respondent's legal representative should not be granted leave to represent the Respondent in these proceedings. These allegations arise out of the Appellant's assumption that leave was granted below for a particular individual to appear as the Respondent's legal representative.
  1. [23]
    The Appellant does not appear to make any further submissions about whether the Court should exercise its discretion to grant leave having regard to the considerations set out under s 530(4) of the IR Act. 

Section 530(4)(a) of the IR Act

  1. [24]
    Section 530(4)(a) requires the following assessment to be undertaken:[4]
  1. identify the complexity of the "matter", being the controversy the subject of the principal proceedings; and
  1. identify how, "having regard to the complexity", having a party represented by lawyers would "enable the proceedings to be dealt with more efficiently".
  1. [25]
    Having regard to the decision and to the Appellant's grounds of appeal, the controversies the subject of the appeal concern:
  1. whether the Commissioner erred in the exercise of a discretion;
  1. consideration of questions of law and facts;
  1. consideration of the reasons for judgment to determine if the Commissioner provided adequate reasons;
  1. consideration of the reasons for judgment to determine if the Commission took into account irrelevant matters and, further, did not take into account relevant matters; and
  1. whether to permit an application (if any) for fresh evidence on the appeal.
  1. [26]
    These matters are matters that add to the complexity of the appeal.
  1. [27]
    Having now identified the complexity of the matter, regard must be had as to whether having a party represented by a lawyer would enable the proceedings to be dealt with more efficiently. Having regard to the word "efficient", the Macquarie Dictionary relevantly provides as follows:

Efficient

Adjective 1. Effective in the use of energy or resources.

2.  adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable.

3.  producing an effect, as a cause; causative.

[Latin efficiens, present participle, accomplishing]

– efficiently, adverb

  1. [28]
    In the context of proceedings, I consider that dealing with proceedings more efficiently includes efficiently dealing with proceedings by effectively using resources and time.
  1. [29]
    Having regard to the matters that add to the complexity of this matter, they are matters that may potentially impact on the efficient conduct of the proceedings.
  1. [30]
    Having regard to the relatively complex issues on appeal, my view is that legal representation will, in a manner that effectively manages resources and time, assist the Court to determine whether or not the decision is affected by error that vitiates the decision.
  1. [31]
    I consider that such assistance would enable the proceedings to be dealt with more efficiently than would be the case if the Respondent was not legally represented.
  1. [32]
    These are matters which weigh in favour of the exercise of discretion.
  1. [33]
    Against the exercise of discretion, the Appellant contends that Mr Meredith, Solicitor, Preston Law, appeared below and in these proceedings without leave.
  1. [34]
    The Appellant's contention in this regard appears to be based on the fact that Ms Care, Solicitor, Preston Law, initially applied on behalf of the Respondent, for leave for the Respondent to be legally represented.
  1. [35]
    The Appellant argues that the Commission's subsequent granting of leave for the Respondent to be legally represented is limited to representation by Ms Care only.
  1. [36]
    However, that contention does not accord with the terms of the order granting leave. Relevantly, the Commission's order was in the following terms:

The Respondent has leave to be legally represented in matter number GP/2024/20 pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld).

  1. [37]
    The order does not seek to restrict the identity of the legal representative to a particular legal practitioner. In any event, both Ms Care and Mr Meredith are solicitors at Preston Law. It is apparent that Preston Law has been engaged by the Respondent as its legal representative, both in the matter below and in this appeal.
  1. [38]
    Consequently, there is no substance to the Appellant's submission that Mr Meredith "illegally" appeared in the proceedings below.
  1. [39]
    In this proceeding, I served directions at the initial appeal directions hearing on 18 December 2024 requiring the parties to file material relevant to the Respondent's foreshadowed application for legal representation.
  1. [40]
    The application for legal representations in these proceedings will be determined before the hearing of the appeal.
  1. [41]
    Accordingly, the matters raised by the Respondent do not weigh against the exercise of the discretion to grant leave.
  1. [42]
    The Respondent's application for leave to be legally represented in these proceedings is granted.

Order

  1. [43]
    I make the following order:
  1. Leave is granted for the Respondent to be legally represented pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1]Affidavit of Mr Benjamin Meredith filed 18 December 2024.

[2][2024] ICQ 16 (‘Sillay’) (citations omitted). 

[3]Affidavit of Mr Benjamin Meredith filed 18 December 2024.

[4] Sillay (n 2) [34]-[35].

Close

Editorial Notes

  • Published Case Name:

    Mutonhori v Mount Isa City Council

  • Shortened Case Name:

    Mutonhori v Mount Isa City Council

  • MNC:

    [2025] ICQ 1

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    23 Jan 2025

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QIRC 24004 Oct 2024Orders dismissing application for extension of time to file part of application relating to dismissal and dismissing that part of the application relating to dismissal: Pratt IC.
Primary Judgment[2025] ICQ 123 Jan 2025Leave granted for respondent to be legally represented: Hartigan DP.
Notice of Appeal FiledFile Number: CA 602/2512 Feb 2025Notice of appeal filed.
QCA Interlocutory Judgment[2025] QCA 6608 May 2025Application for security for costs of appeal: Bond JA.
Appeal Discontinued (QCA)File Number: CA 602/25-Appeal dismissed in default of compliance with orders for security for costs.

Appeal Status

Appeal Discontinued (QCA)

Cases Cited

Case NameFull CitationFrequency
Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240
2 citations
Jump To
Cite 1 - [2024] QIRC 240
Cite 2 - [2024] QIRC 240
Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16
2 citations
Jump To
Cite 1 - [2024] ICQ 16
Cite 2 - [2024] ICQ 16

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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