Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Richards v State of Queensland (Queensland Ambulance Service)[2022] QIRC 159

Richards v State of Queensland (Queensland Ambulance Service)[2022] QIRC 159

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Richards v State of Queensland (Queensland Ambulance Service) [2022] QIRC 159

PARTIES:

Richards, Lisa-Marie

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/413

PROCEEDING:

Public Service Appeal

DELIVERED ON:

11 May 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

  1. Pursuant to s 530A(3) of the Industrial Relations Act 2016, the Appellant is not entitled to be represented by Mr Stephen Dryley-Collins (a lawyer) as an agent in a Public Service Appeal.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant applied for an exemption to receiving the COVID–19 vaccination – where respondent refused appellant's exemption application – where appellant applied for internal review of refusal to grant exemption – where upon review the respondent upheld the original refusal – where appellant filed a public service appeal against the decision – where appellant filed a Form 33 Notice of appointment of agent – where contact listed on the Form 33 is a lawyer – whether s 530A of the Industrial Relations Act 2016 permits the Appellant to appoint a lawyer as an agent – whether in acting as the appellant's lawyer the person would be subject to the Legal Profession Act 2007 – consideration of whether appellant instructed the person to act as her lawyer – where an officer of an industrial association, who also happens to be a lawyer, may act as an agent for a party to an appeal in their industrial capacity – where the lawyer in this matter is not an officer of an industrial association

LEGISLATION AND OTHER

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, s 14B, sch 1

Industrial Relations Act 2016 (Qld) s 451, s 530A

Legal Profession Act 2007 (Qld) s 3, s 5, s 6, s 81, sch 2

Public Service Act 2008 (Qld) s 194

Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld) 5

Explanatory Notes, Public Service Bill 2008 (Qld) 46

CASES:

Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255

Reasons for Decision

Introduction

  1. [1]
    Ms Lisa-Marie Richards (the Appellant) is employed by Queensland Ambulance Service, State of Queensland (the Respondent) as a Registered Nurse.[1]
  1. [2]
    On 5 April 2022, Supportah Australia Pty Limited[2] t/as Industrial Relations Claims (Supportah Australia) filed an Appeal Notice on behalf of the Appellant.
  1. [3]
    The Appellant is appealing a decision dated 15 March 2022 by A/Assistant Commissioner Tony Armstrong confirming the decision to refuse her application for exemption from receiving a COVID-19 vaccination. The Appeal is brought against a fair treatment decision pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) (the PS Act).
  1. [4]
    Supportah Australia attached a Form 33 - Notice of appointment of agent to the Appeal Notice that was electronically executed by the Appellant on 16 March 2022 and lists "Mr Stephen Dryley-Collins - Director of Lay Advocacy Services" as the "contact person" at Supportah Australia.[3]
  1. [5]
    It is my understanding that Mr Dryley-Collins is a lawyer and so I decided the matter of representation needed to be settled prior to hearing the substantive appeal.
  1. [6]
    That being so, I issued the parties with a Directions Order on 13 April 2022 that required submissions "addressing whether s 530A of the Industrial Relations Act 2016 (Qld) permits the Appellant to appoint Mr Dryley-Collins of Supportah Australia Pty Limited t/as Industrial Relations Claims as her Agent in this Public Service Appeal".
  1. [7]
    The Appellant (via Supportah Australia) was required to file written submissions by 4:00pm on 22 April 2022. The Appellant did not comply with that direction, did not provide an explanation for the non-compliance and did not seek an extension of time to file submissions.
  1. [8]
    At 8:27am on 4 May 2022, the Respondent filed written submissions. The Respondent apologised and acknowledged that the submissions were not provided by the directed timeframe of 4:00pm on 3 May 2022.
  1. [9]
    The Appellant was given the opportunity to file any written submissions in reply by 4:00pm on 10 May 2022, however elected not to do so. Instead, less than 1.5 hours before reply submissions were directed to be filed, Mr David Pawley of Supportah Australia sent an email to the Industrial Registry attaching a replacement Form 33 listing Mr Miles Heffernan as the contact person. That email did not comply with the Directions Order and provided no excuse for non-compliance.
  1. [10]
    Within the 10 May 2022 email, Supportah Australia indicated Mr Dryley-Collins' name was included "erroneously through administrative error, as Mr Miles Heffernan has been the lay advocate working on the file". Further, Supportah Australia asserted that as Mr Dryley-Collins "was not, is not and will not" be working on the Appeal, s 530A of the Industrial Relations Act 2016 (Qld) (the IR Act) does not apply.
  1. [11]
    Mr Pawley requested the Directions Order issued 13 April 2022 be vacated as it was no longer necessary in his view. I disagree.
  1. [12]
    I will proceed to decide the matter in circumstances of non-compliance with a Directions Order, no explanation for the non-compliance, failure to request an extension - and the discourtesy to the Commission evident in all of the above. The Commission's Code of Conduct provides that parties and their representatives should "act promptly, comply with Commission directions, and minimise delay".[4] I am further mindful that the Respondent has incurred the time and effort required in making their helpful and detailed submissions in response to my Directions Order.
  1. [13]
    The sum total of what I have received from the Appellant in respect of the Directions Order issued 13 April 2022 is instead a brief email provided less than 1.5 hours before the Appellant's final submissions were required - absent even Affidavit evidence swearing to the truthfulness of the claims made therein. Specifically, that Mr Dryley-Collins was included "erroneously through administrative error" and that he "was not, is not and will not be working on this matter".[5]
  1. [14]
    I directed the parties to file any application for leave to make oral submissions or further written submissions by 4:00pm on 11 May 2022 and advised that in the absence of such application, the matter would be dealt with on the papers pursuant to s 451(1) of the IR Act.[6] Neither party made contact with the Industrial Registry in this regard.
  1. [15]
    I will now proceed to determine the question of whether or not s 530A of the IR Act permits the Appellant to appoint Mr Dryley-Collins as her agent in this Appeal.

Relevant provisions

  1. [16]
    Section 530A of the IR Act applies in relation to a proceeding for a Public Service Appeal.[7]
  1. [17]
    Section 530A(2) of the IR Act permits a party to an appeal to appear "personally or by an agent."
  1. [18]
    Relevantly, s 530A(3) of the IR Act provides:

(3) However, a party may not be represented by a person if-

(a) the party has instructed the person to act as the party's lawyer; and

(b) in acting as the party's lawyer, the person would be subject to the Legal Profession Act 2007.

  1. [19]
    In determining whether or not the Appellant can be represented by Mr Dryley-Collins as an agent in this Appeal, I will consider the following questions:
  1. Is Mr Dryley-Collins a lawyer?
  1. In acting as the Appellant's lawyer, would Mr Dryley-Collins be subject to the Legal Profession Act 2007 (Qld) (the LPA)?
  1. Has the Appellant instructed Mr Dryley-Collins to act as her lawyer?

Is Mr Dryley-Collins a lawyer?

  1. [20]
    Section 81(1) of the LPA requires the Queensland Law Society (QLS) to keep a publicly available register of practising certificate holders.
  1. [21]
    Upon review of the QLS directory, Mr Stephen Frederick Dryley-Collins is listed as an "Employed Solicitor" with an "Unrestricted" Certificate. Although the firm/employer is listed as FWEL Pty Ltd,[8] the contact details of the law practice/employer entity match the details listed on the Form 33 - Notice of appointment of agent. On that basis, I am satisfied that the Mr Stephen Dryley-Collins referred to in both the Form 33 and on the QLS directory are the same individual.
  1. [22]
    Section 5(1) of the LPA defines an "Australian lawyer" as "a person who is admitted to the legal profession under this Act or a corresponding law."
  1. [23]
    Schedule 2 of the LPA defines "admission to the legal profession" as admission by a Supreme Court as, inter alia, a lawyer, legal practitioner or a solicitor under the LPA, a previous Act or a corresponding law.
  1. [24]
    Section 6(1) of the LPA defines an "Australian legal practitioner" as an "Australian lawyer who holds a current local practising certificate or a current interstate practising certificate."
  1. [25]
    Further, sch 2 of the LPA defines a "solicitor" as:
  1. (a)
    for part 7.3—see section 620; and
  1. (b)
    for part 7.5—see section 658; and
  1. (c)
    otherwise means—
  1. (i)
    a local legal practitioner who holds a current local practising certificate to practise as a solicitor; or
  1. (ii)
    an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engaging in legal practice only as or in the manner of a barrister.
  1. [26]
    Schedule 1 of the Acts Interpretation Act 1954 (Qld) (the AI Act) defines a lawyer as, "an Australian lawyer within the meaning of the Legal Profession Act 2007."
  1. [27]
    Although Supportah Australia have not presented any submissions in this regard, the Respondent has alerted me to the fact and I am satisfied that Mr Dryley-Collins is an "Employed Solicitor" on an unrestricted practising certificate. Based on the provisions above, it is therefore reasonable for me to conclude that Mr Dryley-Collins is a person who has been admitted to the legal profession and holds a current practising certificate to practise as a solicitor. On that basis, I am satisfied Mr Dryley-Collins is a "lawyer" for the purpose of s 530A of the IR Act.

In acting as the Appellant's lawyer, would Mr Dryley-Collins be subject to the LPA?

  1. [28]
    A main purpose of the LPA is "to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally".[9]
  1. [29]
    In an email dated 10 May 2022 from Mr Pawley to the Industrial Registry, it appears Supportah Australia concedes that it is not appropriate for Mr Dryley-Collins to be working on a Public Service Appeal as he was listed on the Form 33 "erroneously through administrative error" and submits that as he will not be working on the Appeal, s 530A of the IR Act does not apply.
  1. [30]
    As concluded at [27] above, I am satisfied that Mr Dryley-Collins falls under the definition of a "lawyer", "Australian legal practitioner" and a "solicitor" under the LPA. Further, I am satisfied Mr Dryley-Collins engages in legal practice in this jurisdiction. On that basis and in the absence of any argument to the contrary, I am satisfied that in acting as the Appellant's lawyer, Mr Dryley-Collins would be subject to the LPA.

Has the Appellant instructed Mr Dryley-Collins to act as her lawyer?

  1. [31]
    Section 530A(3)(a) requires that the party must have (emphasis added) "instructed the person to act as the party's lawyer".
  1. [32]
    The wording of s 530A(3)(a) of the IR Act is somewhat ambiguous and the reference to "instructed" is curious.
  1. [33]
    On 14 September 2020, s 204 of the PS Act was repealed and that provision was instead inserted at s 530A of the IR Act. Neither party has submitted any caselaw on either provision - nor identified any extrinsic material that could shed light on the meaning of "instructed".
  1. [34]
    The wording of s 530A(3)(a) potentially invites the argument that the Appellant has instructed a lawyer to act as an agent. In my view, any arrangement of this sort is impermissible and implausible in these particular circumstances.
  1. [35]
    If that argument were to be presented, it could reasonably be inferred that such an arrangement is being used to circumvent the prohibition of legal representation under s 530A of the IR Act. For the reasons that follow, I find that the mere engagement of a lawyer in these particular circumstances is sufficient to satisfy the first limb under s 530A(3)(a) of the IR Act - and that any argument that the lawyer was intended to act as an agent ought to be rejected.

The AI Act

  1. [36]
    The AI Act provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[10]
  1. [37]
    In the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation:
  1. (a)
    if the provision is ambiguous or obscure - to prove an interpretation of it; or
  1. (b)
    if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or
  1. (c)
    in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.[11]
  1. [38]
    In determining whether consideration should be given to extrinsic material and the appropriate weight, regard is to be had to:
  1. (a)
    the desirability of a provision being interpreted as having its ordinary meaning; and
  1. (b)
    the undesirability of prolonging proceedings without compensating advantage; and
  1. (c)
    other relevant matters.[12]
  1. [39]
    Section 14B(3) of the AI Act provides that "extrinsic material" includes "an explanatory note or memorandum relating to the Bill that contained the provision…"
  1. [40]
    The Explanatory Notes for the Public Service & Other Legislation Amendment Bill 2020 (Qld) provides (emphasis added):

Clause 9 inserts a new section 530A to provide that a person or party to a proceeding for a public service appeal conducted by the QIRC may appear personally or be represented by an agent but is not entitled to legal representation. Further, a party to an appeal about a promotion decision may only be represented by an agent with leave of the QIRC. This reflects the existing arrangements for public service appeals in the Public Service Act 2008, section 204.[13]

  1. [41]
    The Explanatory Notes for the Public Service Bill 2008 (Qld) provides (emphasis added):

Clause 204 makes provision for the representation of parties and states that a party to an appeal may appear personally or by an agent. The clause refines the restriction on a party being represented by a lawyer to state that a party may not be represented by a person if the party has instructed the person to act as their lawyer, and the person would be subject to the Legal Profession Act 2007. This seeks to address government and union concerns by clarifying that a person is not precluded from representing a party in a non-legal capacity, simply because they hold legal qualifications. The rephrased clause would therefore allow for instances where an officer of an industrial association, who also happens to be a lawyer, acts as an agent for a party to an appeal in their industrial capacity.[14]

Consideration

  1. [42]
    The ordinary meaning of s 530A(3)(a) of the IR Act suggests that a party may not be represented by a person if it has instructed them to act as the party's lawyer. However, that interpretation lends itself to arguments that if a party were to instruct a lawyer to act as an agent, then that lawyer could act under the guise of an agent in a Public Service Appeal. On that basis, I find the provision to be ambiguous.
  1. [43]
    Further, interpreting the provision to contemplate that a party could instruct a person who is a lawyer to act as an agent would lead to a result that is manifestly absurd and unreasonable. Self-evidently, a lawyer has legal training that lay agents and (typically) appellant's themselves do not. Upon being engaged by a party, it is inconceivable that the lawyer could then momentarily compartmentalise their legal knowledge in order to act as an agent on equal footing to the Respondent.
  1. [44]
    Appellants are permitted to act personally or through an agent. Factors such as keeping the appeal process simple, cost effective, timely and fair are clearly relevant. The Explanatory Notes for the Public Service & Other Legislation Amendment Bill 2020 (Qld) stipulate that s 530A was inserted to provide that a party "is not entitled to legal representation." If a person is being represented by a lawyer that is subject to the LPA, then that party is being legally represented in my view. That prohibition cannot be evaded by a lawyer in the employ of an Australian proprietary company limited by shares,[15] posing as an agent.
  1. [45]
    The exception to this is limited to the particular circumstances envisaged in the Explanatory Notes for the Public Service Bill 2008 (Qld) that explains that these precise words - "if the party has instructed the person to act as their lawyer" - were designed to address:

… government and union concerns by clarifying that a person is not precluded from representing a party in a non-legal capacity, simply because they hold legal qualifications. The rephrased clause would therefore allow for instances where an officer of an industrial association, who also happens to be a lawyer, acts as an agent for a party to an appeal in their industrial capacity.[16]

  1. [46]
    In defining "industrial association", sch 5 of the IR Act provides, "for chapter 8, part 1, see section 279." Section 279 of the IR Act provides:

industrial association means any of the following—

(a) an employee organisation;

(b) an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;

(c) an employer organisation;

(d) an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment;

(e) a branch of an industrial association under paragraphs (a) to (d).

Note—

An organisation is a body that is registered as an organisation under chapter 12—see schedule 5, definition of organisation.

  1. [47]
    Vice President O'Connor also considered the definition of "industrial association" and phrase "association of employees" in Gilbert v Metro North Hospital Health Service & Ors:

It is contended that the use of the expression "an association of employees" make it plain that the legislature is contemplating a group of individual employees rather than a single corporate or similar entity. I agree.[17]

  1. [48]
    I follow his Honour's reasoning here.
  1. [49]
    I have determined it is necessary to have regard to the Explanatory Notes as it is not desirable that the provision be interpreted as having its ordinary meaning in circumstances where the implication from that ordinary meaning is that parties may argue that they instructed a lawyer in the employ of an Australian proprietary company limited by shares to act as an "agent". Further, it is implausible that - other than "where an officer of an industrial association, who also happens to be a lawyer, acts as an agent for a party to an appeal in their industrial capacity"[18] - the provision could have been intended to allow for such an arrangement when the intention was clearly to prohibit legal representation in Public Service Appeals.
  1. [50]
    Supportah Australia have not confirmed that the Appellant specifically "instructed" Mr Dryley-Collins to act as her lawyer. However, for the reasons outlined above, any instructions are immaterial in these particular circumstances where the Appellant has clearly engaged a lawyer to act on her behalf in her Appeal.

Conclusion

  1. [51]
    Pursuant to s 530A(3) of the IR Act, a party to a Public Service Appeal may not be represented by a person if the party has instructed the person to act as the party's lawyer and in so doing, the person would be subject to the LPA.
  1. [52]
    The clear exception is the particular circumstances envisaged by the Explanatory Notes, whereby "an officer of an industrial association, who also happens to be a lawyer, acts as an agent for a party to an appeal in their industrial capacity."[19] That is allowed.
  1. [53]
    For the reasons outlined above, I have concluded that Mr Dryley-Collins is a lawyer and in acting as so, would be subject to the LPA. Although it is unclear whether the Appellant instructed Mr Dryley-Collins to act as her lawyer, I have concluded that merely engaging a lawyer to represent her in these particular circumstances is sufficient to satisfy s 530A(3)(a) of the IR Act.
  1. [54]
    On that basis, I find that s 530A of the IR Act does not permit the Appellant to appoint Mr Dryley-Collins as her agent in a Public Service Appeal.
  1. [55]
    I order accordingly.

Order:

  1. Pursuant to s 530A(3) of the Industrial Relations Act 2016, the Appellant is not entitled to be represented by Mr Stephen Dryley-Collins (a lawyer) as an agent in a Public Service Appeal.

Footnotes

[1] Appeal Notice, 5 April 2022, 1.

[2] ASIC describes the "Type" of the companies - Supportah Australia Pty Limited and FWEL Pty Ltd - as "Australian Proprietary Company, Limited by Shares"; Company Summary, extracted from ASIC's database on 11 May 2022.

[3] Form 33 - Notice of appointment of agent, 5 April 2022.

[4] Queensland Industrial Relations Commission, Code of Conduct, 3.

[5] Email from Mr D. Pawley to Industrial Registry, 10 May 2022.

[6] Directions Order, 13 April 2022, [4].

[7] Industrial Relations Act 2016 (Qld) s 530A(1).

[8] Also referred to in the Respondent's Submissions, 4 May 2022, 1 [6].

[9] Legal Profession Act 2007 (Qld) s 3(a).

[10] Acts Interpretation Act 1954 (Qld) s 14A(1).

[11] Ibid s 14B(1).

[12] Acts Interpretation Act 1954 (Qld) s 14B(2).

[13] Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld) 5.

[14] Explanatory Notes, Public Service Bill 2008 (Qld) 46.

[15] ASIC describes the "Type" of the companies - Supportah Australia Pty Limited and FWEL Pty Ltd - as "Australian Proprietary Company, Limited by Shares"; Company Summary, extracted from ASIC's database on 11 May 2022.

[16] Explanatory Notes, Public Service Bill 2008 (Qld) 46.

[17] [2021] QIRC 255, 24 [93].

[18] Explanatory Notes, Public Service Bill 2008 (Qld) 46.

[19] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Richards v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Richards v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 159

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    11 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.