Steven v Borrill[2022] QIRC 459

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   The Respondents apply to be legally represented pursuant to s 530 of the Industrial Relations Act 2016 (Qld) ('the IR Act') ('the application').

2. [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. [3]
   The referred complaint includes numerous allegations that the Complainant had been the subject of unlawful discrimination in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').

4. [4]
   By email correspondence dated 8 November 2022, the Complainant advised the Industrial Registry that they object to leave being granted for the Respondents to be legally represented.

5. [5]
   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.

6. [6]
   On 14 November 2022, the Complainant filed written submissions in response to the application and raise the following issues, as relevantly summarised:

1. (a)
   the matter was first set for a conciliation conference before the QHRC and was not able to be settled 'largely due to the involvement of legal representation^[1] who inflamed the matter';
2. (b)
   during the conference before the QHRC, the Respondents' legal representatives were 'abrupt, rude, making inferences to the Complainant's inability to make sense, and in no way demonstrated that they were willing to try and encourage their clients to amicably and fairly settle';
3. (c)
   that the Respondents' legal representatives are placing their economic and commercial interests above their clients' interests;
4. (d)
   the Respondents' legal representatives 'stripped the Complainant of their legal rights to freedom of communication' and did not allow her to communicate with them directly making it hard to resolve the matter;
5. (e)
   the Respondents' legal representatives are using their knowledge of the Complainant's mental health issues to delay the matter even further;
6. (f)
   that there is a conflict of interest as the Respondents have a 'long association and history with the legal representatives'; and
7. (g)
   during the course of negotiations over the last year and a half, the Respondents' legal representatives have 'not demonstrated any objectivity'. 

7. [7]
   The question for my determination is whether leave should be granted for the Respondents to be legally represented in the proceedings.

Relevant legislation

8. [8]
   Section 530 of the IR Act provides for legal representation in the following terms:

530 Legal representation

…

1. (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 -

4. (d)
   for other proceedings before the commission, other than the full bench –

1. (i)
   all parties consent; or
2. (ii)
   for a proceeding relating to a matter under a relevant provision - the commission gives leave; or

…

4. (4)
   An industrial tribunal may give leave under subsection (1) only if –

1. (a)
   it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
2. (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
3. (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

5. (5)
   For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -

1. (a)
   an employee or officer of the party or person; or
2. (b)
   an employee or officer of an entity representing the party or person if the entity is -

1. (i)
   an organisation; or
2. (ii)
   an association of employers that is not registered under chapter 12; or
3. (iii)
   a State peak council.-

7. (7)
   In this section –

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

proceedings –

1. (a)
   means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
2. (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 –

1. (a)
   chapter 8; or
2. (b)
   section 471; or
3. (c)
   chapter 12, part 2 or 16.

…

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

9. [9]
   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:

1. (a)
   it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
2. (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
3. (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

10. [10]
    In their application^[2] for legal representation the Respondents submits that allowing it to be legally represented will:

1. (a)
   enable them to effectively navigate the 'legal complexities' of the matter as the First Respondent in this matter is 'not legally trained and has no experience in litigation';
2. (b)
   allow for 'greater objectivity and will contribute to narrowing the issues' in contention which will in turn facilitate the 'likelihood of a settlement being reached, in a short[er] time, and decrease the burden to the QIRC'; and
3. (c)
   ensure that the Respondents are not at a commercial disadvantage because 'the Applicant holds a tertiary degree in law'.

11. [11]
    In their submissions^[3], the Respondents submits that there is ambiguity in the Complainant's complaint and that 'without the intervention of lawyers, it will be difficult for the Respondents and indeed the QIRC to distil what it is the [Complainant] actually wants out of this proceeding'.

12. [12]
    In State of Queensland (Department of Premier and Cabinet) v Dawson^[4], 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 (citations omitted).

…

13. [13]
    I am of the view that there are potentially complex issues associated with the disputed facts in this matter. The material filed to date, also raises several potential complex legal matters.

14. [14]
    Whilst it is accepted that the proceeding is in the preliminary stages before the Commission, the material filed to date discloses a potentially complex factual matrix.

15. [15]
    Further, the referral, and material attached to it, includes matters alleging, inter alia, fraud and intimidating and misleading conduct in the context of the referred complaint alleging, inter alia, contraventions of the AD Act in the workplace on the basis of the Complainant's impairment. There will need to be an analysis of these matters and consideration will need to be had to the relevance of these matters in the context of the claims.

16. [16]
    Consequently, because of the factual and legal matters alleged, I am of the view that the Commission will be assisted, and the matter will proceed more efficiently, if the Respondent is legally represented.

Fairness

17. [17]
    The Complainant objects to the Respondents' application to be legally represented because the legal representatives have, allegedly, to date:

1. (a)
   requested that the Complainant communicate with the Respondents' lawyers rather than with the Respondents directly;
2. (b)
   inflamed the matter further by applying tactics which are not reasonable;
3. (c)
   caused further deterioration to the Complainant's mental health due to their refusal to apply a degree of objectivity and likely prolonging negotiations to their own financial benefit; and
4. (d)
   the matter of conflict of interest would need to be considered in the context of the legal representation's long association with the Respondents.

18. [18]
    There is an obligation placed on lawyers to only communicate via the other party's legal representative. Whilst there is no such positive obligation placed on a self-represented party, it is not unusual if lawyers are engaged for there to be a request that all communications proceed directly through the lawyers.

19. [19]
    The thrust of the Complainant's submissions appears to be that she will be disadvantaged by the Respondents being legally represented.

20. [20]
    In Wanninayake v State of Queensland (Department of Natural Resources and Mines),^[5] Neate IC determined that the decision by an Applicant to not engage in legal representation did not mean that the Respondent should be denied the opportunity to engage legal representation and relevantly held:

… competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.^[6]

21. [21]
    I consider that the balancing of fairness between the parties can be aided through proper case and court room management. It is the responsibility of the Commission to ensure that its practice and procedures are adhered to in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible and to ensure that parties are dealt with justly and fairly. I am satisfied that such a process will operate to ensure fairness between the parties.

Conclusion

22. [22]
    For the above reasons, I have concluded that leave be granted for the Respondents to be legally represented in this proceeding pursuant to s 530(4) of the IR Act.

Order

Leave is granted for the Respondents to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).