Naylor v Brisbane Jazz Club Inc
[2022] QIRC 211
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- Unreported Judgment
- Naylor v Brisbane Jazz Club Inc[2022] QIRC 211
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Naylor v Brisbane Jazz Club Inc[2022] QIRC 211
Naylor v Brisbane Jazz Club Inc[2022] QIRC 211
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Naylor v Brisbane Jazz Club Inc [2022] QIRC 211 |
PARTIES: | Naylor, Jason (Complainant) v Brisbane Jazz Club Inc (Respondent) |
CASE NO.: | AD/2022/31 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 13 June 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer. |
CATCHWORDS: | HUMAN RIGHTS – JURISDICTION AND PROCEDURE – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – Complainant made complaint to the Queensland Human Rights Commission against the Respondents alleging contraventions of provisions of the Anti–Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – application in existing proceedings by the Respondent for leave to be given to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 – opposition by Complainant for leave to be given – whether leave should be given Respondent to be legally represented having regard to s 530(4) of the Industrial Relations Act 2016 – Respondent given leave to be legally represented |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016, s 530 |
CASES: | State of Queensland (Queensland Health) v Hume [2022] ICQ 1 |
Reasons for Decision
Introduction
- [1]On 4 June 2021, Mr Jason Naylor ('Mr Naylor') made a complaint to the Queensland Human Rights Commission ('QHRC') alleging that the Respondents had contravened various provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
- [2]On 4 May 2022, Mr Naylor's complaint was referred to this Commission. The proceeding has been allocated to me for conciliation and case management.
- [3]By application filed on 30 May 2022 the Respondent, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), made application for leave to be given to them to be legally represented before this Commission ('the Respondents application').
- [4]On 9 June 2022, the Mr Naylor made an application seeking that the Respondent not be granted leave for legal representation. Mr Naylor contends the matter does not have any complexity, and that representation would not enable the proceedings to be dealt with more efficiently.
The legislative provisions
- [5]The effect of s 530(1)(c) of the IR Act is that a party to proceedings, or a person ordered or permitted to appear or to be represented in proceedings, may only be represented by a lawyer if the Commission grants leave.[1]
- [6]Section 530(4) of the IR Act provides:
- (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
Leave should be given to the Respondent to be legally represented
- [7]
[36] Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.'
[37] Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.
[38] Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.
[39] By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.
[40] Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.
[41] Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.
[42] Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.
[43] The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.
[44] As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.
- [8]With respect to s 530(4), the Respondent submits:
- The issues are complex in that the anti-discrimination complaint involves a volunteer incorporated association which is governed by volunteers, and subsequently representation will enable the proceedings to be dealt with in a more efficient manner;
- Should legal representation not be granted, a volunteer committee member would be required to represent the entire association in complex legal proceedings which is submitted to have potential unfair implications; and
- It would not be unfair to the applicant to allow representation where the representative of the Respondent understands its role is to contribute to the efficient management of the proceedings.
- [9]Mr Naylor's complaint is not drafted with any particular regard the recognised rules relating to pleadings in legal proceedings. That is in no way a criticism, merely an observation that the details of the complaint are written in an 'essay' style which, while structured chronologically and in plain English, contains numerous allegations against numerous persons.
- [10]Having not yet heard in more detail from Mr Naylor, my review of his complaint reveals that it arises out of volunteer work performed by Mr Naylor in relation to conduct by staff, committee members, and patrons of the Brisbane Jazz Club. The QHRC treated the referred complaint as one relating to or including the work or work-related area, involving allegations of race discrimination and racial vilification.
- [11]Whether or not the allegations or controversies in the referred complaint are in themselves complex, they are extensive in nature and contribute to a complex factual matrix. In the circumstances the Respondent will undoubtedly require assistance to understand the particulars and inter-relationship between the matters complained of by Mr Naylor. I consider that legal representation would be appropriate in all the circumstances.
Conclusion
- [12]For the reason I have given, I will exercise my discretion in favour of the Respondent.
- [13]Pursuant to s 530(1)(c) of the Act, I give leave for the Respondent to be represented by a lawyer.
Order
- [14]I make the following order:
Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondent is given leave to be represented by a lawyer.