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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Bursey, Graham John v Toowoomba Regional Council  QIRC 026
Bursey, Graham John
Toowoomba Regional Council
14 February 2020
17 February 2020
Industrial Commissioner Knight
REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 – Whether Respondent can be represented by a lawyer under s 530 Industrial Relations Act 2016 – Application opposed – Commission’s discretion – Factors to be considered by the Commission in deciding whether to allow legal representation – Circumstances of the case – Leave granted to be legally represented
Industrial Relations Act 2016 s 530
Le Pierres v Herzfeld Pty Ltd (2000)163 QGIG 124
Wanninayake v State of Queensland (Department of Natural Resources and Mines)  QIRC 079.
Mr G Bursey, the applicant, representing himself
Ms M Kavanagh, Solicitor from Colin Biggers & Paisley for the Respondent
- On 23 December 2019, Mr Graham Bursey filed an unfair dismissal application.
- The matter is set down for conciliation on 17 February 2020.
- Mr Bursey is objecting to the Council's reliance on legal representation, and in particular, the use of a Barrister at any stage of the proceedings.
- Subsection 530 of the Industrial Relations Act 2016 (Qld) ('the Act') sets out the circumstances where a party to the proceedings may be legally represented. Section 530 provides:
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—
(d) for other proceedings before the commission, other than the full bench—
- (i)all parties consent; or
- (ii)for a proceeding relating to a matter under a relevant provision—the commission gives leave...
- (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
- Mr Bursey provided the Commission with written submissions in support of his objection. In support of his position, he highlighted the extensive qualifications and experience of the barrister proposed to be utilised in the proceedings.
- He also contends that his lack of training in employment law and inexperience as an advocate before the Commission will result in him being unable to effectively represent himself against highly experienced Counsel.
- He suggests that if leave for representation is granted, that Council be directed to instruct a lawyer and not Counsel. In support of his argument that he will not be able to effectively represent himself, he points to the extensive experience and qualifications of proposed Counsel, Ms Megan Brooks, namely:
Since coming to the bar, Megan has appeared as sole counsel at the Administrative Appeals Tribunal, the Queensland Industrial Relations Commission, the Fair Work Commission, the Magistrates Court of Queensland and the District Court of Queensland, and as junior counsel in the Industrial Magistrates Court of Queensland, the Supreme Court of Queensland and the Queensland Court of Appeal. She has been appointed to the panel of barristers briefed by the Workers’ Compensation Regulator. Megan holds a Bachelor of Applied Science and PhD from RMIT University, an LLM (Juris Doctor) from Monash University and completed her GDLP at Australian National University.
- Ms Kavanagh of Colin Biggers & Paisley on behalf of the Council provided the Commission with written submissions in support of the application seeking leave for the Council to be legally represented.
- Section 530(4) of the Act provides, in effect, that in deciding in accordance with s 530(1)(d)(ii) of the Act whether the Commission is satisfied that it is desirable for the Council to be legally represented in these proceedings, it may consider, for example:
- (a)The nature and complexity of the matter;
- (b)The nature of the evidence to be adduced;
- (c)The cross-examination likely to be required;
- (d)The capacity of the party or person to represent himself or herself;
- (e)The questions of law likely to arise; and
- (f)Whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.
- Against a number of those criteria, Ms Kavanagh highlighted:
- (a)the complexity of the matter and in particular, the value Counsel, instructed by Colin Biggers & Paisley could provide during the proceedings in the application of complex legal issues relevant to the matter;
- (b)the inevitable requirement for witnesses to be called in circumstances where the matter proceeds to be a formal hearing and the preservation of evidence by distancing Council employees from the conference; and
- (c)that should legal representation be granted, the Council may choose to instruct whoever they so desire.
Should I grant leave for the Toowoomba City Council to be legally represented in the proceedings?
- In accordance with s 530(4), I need to be satisfied it is desirable for the Council to be legally represented in these proceedings.
- In the decision of Le Pierres, reference is made to the assistance that legal representation can provide the Commission. In Wanninayake, Neate IC (as he then was) stated that the unrepresented status of an applicant should not operate to deny a respondent leave for representation.
- I have taken into consideration the submissions of the Council and Mr Bursey.
- After considering:
- the nature of the application Mr Bursey has filed and the reasons for his termination;
- the possibility that if Mr Bursey's matter proceeded to arbitration, questions of law would arise;
- that these questions of fact and law are somewhat complex; and
- that if the matter proceeded to a formal hearing, cross-examination would more than likely be necessary;
I am inclined to grant the Council application for legal representation.
- As to Mr Bursey’s suggestion that if leave for representation is granted, that Council be directed by the Commission to instruct a lawyer and not Counsel, I agree with the submissions of Council, that section 540 of the IR Act does not differentiate Counsel from a lawyer.
- Furthermore, the Commission is not able to direct which legal representative the Council selects to represent it in proceedings.
- In arriving at this decision, I acknowledge Mr Bursey's comments about the importance of the proceedings being conducted in an efficient manner, as well as Council's undertaking to comply with the model litigant principles. I encourage both parties, where possible, to constructively work towards resolving the matter, at the conciliation stage before moving to a hearing.
- The Commission grants leave for the Toowoomba Regional Council to be legally represented in TD/2019/113.
- Published Case Name:
Bursey, Graham John v Toowoomba Regional Council
- Shortened Case Name:
Bursey v Toowoomba Regional Council
 QIRC 26
14 Feb 2020