Robertson v Queensland Farm Management and Training Pty Ltd
[2022] QIRC 220
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- Unreported Judgment
- Robertson v Queensland Farm Management and Training Pty Ltd[2022] QIRC 220
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Robertson v Queensland Farm Management and Training Pty Ltd[2022] QIRC 220
Robertson v Queensland Farm Management and Training Pty Ltd[2022] QIRC 220
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Robertson v Queensland Farm Management and Training Pty Ltd [2022] QIRC 220 |
PARTIES: | Robertson, B (Complainant) v Queensland Farm Management and Training Pty Ltd (Respondent) |
CASE NO: | AD/2022/6 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 16 June 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER | That leave be granted for the Respondent to be legally represented in these proceedings pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – application in existing proceedings for legal representation – where respondent has filed an application for leave to be legally represented – where complainant objects to the application – factors to be considered by Commission in determining whether to allow legal representation – circumstances of the case – where leave is granted for legal representation |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 530 |
CASES: | State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 |
Reasons for Decision
Introduction
- [1]The Respondent applies to be legally represented pursuant to s 530 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [2]The proceedings relate to a complaint referred by the Queensland Human Rights Commission ('the QHRC') to the Queensland Industrial Relations Commission ('the Commission').
- [3]The referred complaint includes an allegation that the Complainant had been the subject of an unlawful request for information and that they had been the subject of unlawful discrimination on the basis of gender identity and age in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
- [4]On 15 March 2022, the matter was listed for a conciliation conference. The matter was unable to be resolved at the conference and accordingly, directions were issued to the parties to progress the matter. The directions included, inter alia, a direction for the Complainant to file a Statement of Facts and Contentions by 12 April 2022 and the Respondent to file a Response by 3 May 2022.
- [5]On 5 May 2022, the Respondent's legal representative sent email correspondence to the Industrial Registry advising that it had been engaged to act for the Respondent and requesting an extension of time to file the Response.
- [6]On 6 May 2022, the Industrial Registry sent email correspondence to the parties and turned the Respondent's legal representative's attention to s 530 of the IR Act and noted that the Commission was not in receipt of an application by the Respondent seeking leave to be legally represented.
- [7]Further, on 9 May 2022, the Commission issued amended directions granting the Respondent with an extension of time to file a response. The Respondent filed its Response on 13 May 2022 in accordance with the amended directions. The Respondent's legal representative signed the Response that was filed on behalf of the Respondent.
- [8]On 26 May 2022, following the mention of the matter which was listed in relation to a different application in existing proceedings filed by the Complainant on 19 May 2022, the Respondent filed an application for leave to be legally represented pursuant to s 530(4) of the IR Act ('the Application').
- [9]Accordingly, the Commission issued directions for the parties to file and serve written submissions with respect to the Application. Both parties complied with the directions.
- [10]The Commission permitted an email sent from the Complainant to the parties to be included as a further submission of the Complainant in relation to the Application. This was permitted on the basis that the contents of the correspondence were addressing alleged deficiencies in the Respondent's written submission in relation to the Application and that, as best as I understand, the Complainant had encountered technological problems. In fairness to the Respondent, the Commission allowed the Respondent three business days to respond to the further submission of the Complainant. The Respondent objected to the inclusion of the correspondence in the material, however, the Respondent did not take up the opportunity it was provided to provide further written submissions in response, nor did it provide written submissions with respect to the objection.
- [11]The Respondent relies on the following grounds in support of the Application, as set out in the Schedule attached to the Application:
The appointment of legal representation will address the following issues:
- (a)Assist in enabling the proceedings to be dealt with more efficiently having regard to the complexity of the matter; and
- (b)Mr Prestia not being legally expert in terms of knowledge and procedure to effectively represent the Respondent; and
- (c)it would be unfair not to allow legal representation.
Given the opacity of the Applicant's submissions it is reasonable to expect that some cross examination will be required to identify the precise nature of his complaints.
The prospects of the matter being run more efficiently and focused on the relevant issues to be determined is enhanced by allowing legal representation.
…
- [12]The Complainant objects to leave being granted and submits that the Application should be refused and relies on the following grounds, as relevantly summarised, in support of its position:
- (a)the Respondent has sought to utilise Counsel without leave to do so and have without leave, replied to the Complainant's Statement of Facts and Contentions;
- (b)the Respondent's legal representative has offended the Australian Solicitors Conduct Rules;
- (c)the Respondent's legal representative has offended the Uniform Civil Procedure Rules;
- (d)the Respondent's legal representative has applied for leave for legal representation under s 540 of the IR Act;
- (e)the Respondent's legal representative is not specialised in employment law;
- (f)the Respondent's legal representative has attempted to include details of offers of compromise made by the Complainant; and
- (g)the Respondent's legal representative has not acted with probity, candour, and honesty.
- [13]The question for my determination in this matter is whether leave should be granted for the Respondent to be legally represented in the proceedings.
Relevant legislation
- [14]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 –
…
- (c)for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or
…
- (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)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
…
- (7)In this section –
industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.
proceedings –
- (a)means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
- (b)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 –
- (a)chapter 8; or
- (b)section 471; or
- (c)chapter 12, part 2 or 16.
- [15]The construction of s 530(4)(a) of the IR Act has recently been considered by the Industrial Court of Queensland. In State of Queensland (Queensland Health) v Hume,[1] his Honour Merrell DP held that s 530(4)(a) ought be construed in the following way:
- [34]First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c).
- [35]Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court. The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer.
- [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.
Should leave be granted for the Respondent to be legally represented?
- [16]The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave 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.
Efficiency and complexity
- [17]The Respondent submits the following, which appears to be in support of a position that the matters in the proceeding are complex:
- (a)the complaint raises 24 different breaches of the AD Act which have not been specified or particularised by the Complainant;
- (b)the Commission will be required to interpret the meaning of the words 'without prejudice' when used in an unlawful manner; and
- (c)there is a question as to whether the Complainant has standing to bring the complaint.
- [18]The Respondent further submits that the prospects of the matter being run efficiently and focused are enhanced by allowing legal representation, that a lawyer's duty to the Commission is paramount and the granting of leave to appear is based on the 'presumption that the representative… will conduct themselves with probity, candour and honesty.'
- [19]In State of Queensland (Department of Premier and Cabinet) v Dawson[2], his Honour O'Connor VP referred to the involvement of legal representation and the efficient conduct of litigation, and the consideration of those matters in various authorities as follows:
- 22.The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v where Deputy President Sams wrote:
- [18]Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith:
[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.
- [19]More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd said at para [48]:
A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission.
- [20]Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:
- [13]In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions. (footnotes and citations omitted)
- [20]The complaint, at least in part, arises from an advertisement for available positions allegedly published by the Respondent. The Complainant asserts that the advertisement required information from applicants including, but not limited to, their date of birth, sex and nationality and that the request for such information did not comply, inter alia, with s 124 of the AD Act.
- [21]A perusal of the Response does not appear to deny that the Respondent is the author of the advertisement or that it sought the information which is the subject of the complaint. It appears that the Respondent raises matters which it may be inferred it will rely on as a defence to the complaint.
- [22]Given the limited facts, the nature of the case in and of itself is not particularly factually complex.
- [23]However, the level of complexity arises because of the manner in which the parties have pleaded their respective cases, including, the potential legal issues arising from the pleadings, which have been identified by the parties as including whether the Complainant has standing to bring the complaint and whether there is potentially scandalous material included in the Respondent's Response. In addition to that, the correspondence section of the court file is unusually large. I will address each of these matters further below.
- [24]Unfortunately, both the Complainant's Statement of Facts and Contentions and the Respondent's Response are drafted in a narrative and somewhat argumentative style and appear to have little regard to the rules relating to pleadings in legal proceedings. In addition, both documents are lacking particulars in support of the allegations made. This is not necessarily a criticism of the Complainant, as the Complainant is self-represented. However, it is the role of the Statement of Facts and Contentions to, inter alia, clearly, and precisely identify all the material legal facts and issues that will be relied upon. Such contentions should be precisely stated and supported by particulars so that the Respondent is on notice as to the case that is brought against them. The Response should also precisely state the material facts and issues relied upon in responding to the matter. To the extent relevant, the Response should, inter alia, identify the extent to which it admits or denies the allegations made by the Complainant and the basis for such admissions and denials. It may well be the case that either or both of the parties' Statement of Facts and Contentions and Response will be the subject of further applications in the future conduct of these proceedings.
- [25]The Respondent contends that it will be raising matters relating to the Complainant's standing to bring the proceedings. I consider that such an application, in the context of a complaint alleging a breach of s 124 of the AD Act, may require the consideration of the scope and object of the relevant provisions and determination of legal and factual issues.
- [26]The Complainant also criticises the Response filed by the Respondent for containing what is alleged to be scandalous material. Relevantly, the Response describes the complaint as an 'exercise of extortion'. The Response then refers to two communications from the Complainant to the Respondent, wherein, the Respondent alleges the Complainant sought a sum of money from the Respondent to withdraw the complaint. The Complainant objects to what is described by the Complainant as details of 'offers of compromise' made by the Complainant and the Complainant asserts that the Respondent's legal representative has offended the Australian Solicitors Conduct Rules in referring to the correspondence. The Respondent's legal representative submits that a resolution of the matter would include the contemplation of whether the correspondence was 'without prejudice' correspondence sent by the Complainant.
- [27]These matters are unable to be resolved in the context of this Application, although it is noted a further application has been filed by the Complainant touching upon, at least, some of these matters.
- [28]The allegations made by each of the parties against the other contain serious allegations as to each of the other parties' conduct which I consider adds to the complexity of the proceedings.
- [29]Finally, as noted above, the correspondence section of the court file is unusually large. The correspondence addressed to the Industrial Registry goes beyond mere procedural and administrative matters and raises substantive matters with respect to the proceedings. The Commission does not condone the conduct of the proceedings by way of correspondence. It appears that matters that should have properly been raised in an application in existing proceedings have been included in correspondence sent to the Industrial Registry. If parties have matters of substance to raise with the Commission, such matters should be raised in accordance with the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules').
- [30]A party may request that a matter be listed for mention if any procedural or other irregularities have arisen during the course of the proceeding. Further, if a party is seeking relief from the Commission, a Form 4 – Application in existing proceedings should be filed. This will ensure that the matter will, procedurally, comply with the intent of the IR Act and the IR Rules. Compliance by the parties with the IR Rules, in particular, will assist in achieving a just and expeditious disposition of the proceedings. It further permits matters of substance to be raised on the record and allows parties to be heard with respect to such matters.
- [31]I note for completeness, that at an earlier mention of the matter, the Complainant stated that they do not have private use of a computer and must rely on public resources and consequently should be relieved from filing court forms and complying with directions. The Complainant's limited access to a computer clearly has not limited their means to communicate by correspondence. In any event, the Complainant's reliance on public resources should not prevent the Complainant from complying with the IR Rules. If, however, the Complainant seeks further time to comply with the IR Rules or with directions issued because of their limited access to resources, that is no doubt a matter the Commission will take into consideration if it is properly raised by the Complainant in a formal manner and supported by material explaining the Complainant's situation.
- [32]I consider that legal representation of the Respondent will assist in ensuring greater compliance with the IR Rules and ultimately add to the efficiency of the matter.
- [33]Having regard to the above matters, I consider the complexity of the proceedings as a whole, weighs in favour of exercising my discretion to grant leave. Additionally, I am of the view that legal representation will assist in the efficient conduct and management of the proceedings.
Fairness
- [34]The Respondent submits that Mr Prestia is not able to effectively represent the Respondent as he is not 'legally expert' with respect to knowledge and procedure. The Respondent further submits that it is fair to grant leave for legal representation to 'effectively deal with issues that are raised in a matter that is of assistance to firstly, the Commission and secondly, to the Respondent.'
- [35]The Complainant does not make any express submissions with respect to fairness.
- [36]I note several matters raised by the Complainant, including, the conduct of the Respondent's legal representative, including their alleged non-compliance with the IR Rules could be inferred to be a complaint about unfairness. Additionally, the Complainant makes the following submission:
E Allen and Ors v Fluor Construction Services Pty Ltd [2014
appear is based on the presumption that the representative to whom leave is granted will conduct themselves with probity and honesty.
There is no immediate presumption as to probity candour and honesty, indeed the reasoning as to the sought declined leave to appear is the want of these characteristics.
- [37]The Complainant also seeks 'leave that the sought Counsel [sic] is refused for having been sarcastic, arrogant self-entitled'.
- [38]An inference can be drawn from these submissions that the Complainant is critical of the conduct of the Respondent's legal representative, which is relied on as a basis to object to the Application.
- [39]Firstly, I note that the leave being sought by the Respondent is for it to be legally represented. The Commission in such an application, having regard to the provisions of ss 530(1)(c) and (4) of the IR Act, must determine whether to exercise the discretion to grant legal representation. Such a consideration does not require the Commission to consider the identity of the Respondent's legal representative. To put it another way, the Respondent is seeking leave to be legally represented. The Respondent is not seeking leave to be legally represented by a particular named legal representative. If leave was to be granted and appropriate steps taken in accordance with the IR Rules, the Respondent would be free to change lawyers without seeking further orders from the Commission.
- [40]As noted above, a legal practitioner's paramount duty is to the Commission. 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.
- [41]I am satisfied that these obligations, coupled with the Commission's conduct of the proceedings will safeguard against any concern the Complainant might have regarding matters going to fairness.
- [42]For the reasons referred to above, I exercise my discretion to grant leave to the Respondent to be legally represented pursuant to s 530(4) of the IR Act.
Ancillary matters
- [43]The Complainant raises matters that I consider do not directly relate to the exercise of the discretion pursuant to s 530 of the IR Act.
- [44]These matters include a complaint that the Respondent's lawyer's name appears on the Response filed on behalf of the Respondent prior to the Application for leave to be legally represented being made.
- [45]The nature of the complaint made by the Complainant is that it appears that the Respondent's legal representative authored the Response prior to leave being granted. It appears that there was no attempt by the Respondent to hide that the author of the Response was its legal representative in circumstances where the Respondent had previously indicated that it intended to seek leave to be represented. The Complainant has not identified what prejudice, if any, has been suffered as a result of this step. I do not consider that any prejudice has arisen.
- [46]However, I do share the Complainant's concern as to the delay in the making of this Application, particularly after the correspondence sent by the Industrial Registry on 6 May 2022 and following the filing of the Response. As noted above, it is the Commission's expectation that the parties will endeavour to comply with the IR Rules in the future conduct of these proceedings to ensure the just and expeditious disposition of the matter.
- [47]A perusal of the Application filed on behalf of the Respondent reveals that the Respondent properly sought to commence the Application in reliance on s 530(4) of the IR Act. There is no reference to s 540 of the IR Act in the Application as alleged by the Complainant. In any event, the substance of the Application clearly identifies the nature of the Application.
Order
- [48]Accordingly, I make the following order:
That leave be granted for the Respondent to be legally represented in these proceedings pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).