Van Velzen v Brisbane City Council
[2023] QIRC 102
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- Unreported Judgment
- Van Velzen v Brisbane City Council[2023] QIRC 102
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Van Velzen v Brisbane City Council[2023] QIRC 102
Van Velzen v Brisbane City Council[2023] QIRC 102
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Van Velzen v Brisbane City Council [2023] QIRC 102 |
PARTIES: | Van Velzen, Peter (Applicant) v Brisbane City Council (Respondent) |
CASE NO: | GP/2023/2 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 4 April 2023 |
MEMBER: | Hartigan DP |
HEARD AT: | Brisbane |
ORDER: | Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | GENERAL PROTECTIONS – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 – whether Respondent can be legally represented under s 530 of the Industrial Relations Act 2016 – where application opposed – factors to be considered by the Commission in determining whether to allow legal representation – Respondent granted leave to be legally represented |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 530 |
CASES: | Mario v Workers' Compensation Regulator [2021] QIRC 406 State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 |
Reasons for Decision
Introduction
- [1]On 14 March 2023, the Respondent, Brisbane City Council ('the Council') applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [2]The Applicant, Mr Peter Van Velzen, applied for a Bus Driver role with the Council in or about November 2020. Following an initial assessment of his suitability for the role, the Council advised the Applicant that he was unsuccessful in his application.
- [3]On 30 January 2023, the Applicant filed a general protections application (GP/2023/2) in the Industrial Registry claiming that the Council took adverse action against him as a prospective employee. In his application, the Applicant seeks the following:
- (a)to be employed by Council as a bus driver; and
- (b)to be compensated by Council for discriminating against him on the basis of his impairment.
- [4]On 14 March 2023, the Applicant was requested to advise the Industrial Registry whether he consented or objected to the Council being legally represented in the matter. The Industrial Registry did not receive any correspondence in reply from the Applicant.
- [5]The parties were advised on 17 March 2023, that the Commission would hear from the parties at the commencement of the conference on 20 March 2023 with respect to the Council's application for legal representation.
- [6]On 20 March 2023, submissions from the parties were heard in relation to the application for legal representation filed by the Council.
- [7]The question for my determination is whether leave should be granted for the Council to be legally represented in the proceedings.
- [8]After considering the application and supporting affidavit filed on behalf of the Council and after hearing the oral submissions of the Council and Mr Van Velzen, I granted leave for the Council to be legally represented during the course of the conference on 20 March 2023.
- [9]These are the reasons for that decision.
Relevant legislation
- [10]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 -
- (e)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; 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
- (5)For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -
- (a)an employee or officer of the party or person; or
- (b)an employee or officer of an entity representing the party or person if the entity is -
- (i)an organisation; or
- (ii)a State peak council; or
- (iii)another entity that only has members who are employers.
…
- (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.
Should leave be granted for the Council to be legally represented?
- [11]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.
Consideration
- [12]The Council submits that allowing it to be legally represented will enable the proceedings to be dealt with more efficiently, because:
- (a)the Applicant raises complex issues that relate to discrimination, the application of specific provisions of the IR Act and the interpretation of medical opinion and other related reports; and
- (b)further, the Council expects that lay witnesses and possible expert witnesses will be called to give evidence which will add to the complexity of the matter.
- [13]The Council submits that it would be unfair not to allow the Council to have legal representation as the Applicant did not oppose the Council having legal representation when the matter was before the Australian Human Rights Commission ('AHRC'). The Council contends that because the Applicant did not oppose the Council being legally represented in the course of those proceedings, this therefore 'suggests' that the Applicant was not prejudiced.
- [14]Mr Van Velzen objected to leave being granted for the Council to be legally represented, and raised the following issues, as summarised by me, for consideration:
- (a)that Mr Van Velzen considers that there is a power imbalance between he and the Council's legal representatives; and
- (b)that following a conversation between Mr Van Velzen and the Council’s legal representative on Friday 3 March 2023, Mr Van Velzen contends that an agreement had been struck between he and the Council's legal representative that Council would not be legally represented in the matter.
- [15]In Wanninayake v State of Queensland (Department of Natural Resources and Mines),[1] 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.[2]
- [16]Mr Van Velzen refers to a potential power imbalance if the Council were to be legally represented.
- [17]It is not unusual for a self-represented litigant to feel somewhat out of depth in proceedings before the Commission. However, such feelings can be ameliorated by the parties adherence to the Tribunal Rules which are aimed to provide, inter alia, fairness in the processes before the Commission together with the efficient and fair case and courtroom management by the Commission.
- [18]The choice by Mr Van Velzen to not engage legal representation does not mean that the Council should be denied the opportunity to engage legal representation.
- [19]Further, the involvement of legal representation can aid the efficient conduct of litigation. Relevantly, in State of Queensland (Department of Premier and Cabinet) v Dawson[3] 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:
- 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. [citations omitted].
[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].
- [20]I am of the view that there are potentially complex legal and factual issues involved with this matter. Some of those matters will require the parties to adduce and test medical evidence. I am of the view that the Commission will be assisted by legal representation of the Respondent with respect to these matters.
- [21]Relevantly, I consider that it will assist if one of the parties is legally represented to ensure that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced and that submissions are confined to the matters which the Commission must decide.
- [22]For these reasons, I do not consider that it would be unfair for the Council to be legally represented.
- [23]Further, Mr Van Velzen objects to legal representation on the basis that the Council's lawyers allegedly agreed not to appear in the matter when they sought Mr Van Velzen's consent to an adjournment and allegedly misrepresented what was discussed in an email sent later to the Commission.
- [24]The conference in this matter was originally scheduled for 6 March 2023. On 2 March 2023, the Council's solicitor wrote to the Industrial Registry, copied into Mr Van Velzen, advising of a pressing personal matter (which was particularised in the correspondence) and sought an adjournment of the conference. On the same day, the Industrial Registry wrote to the parties and requested that they confer with one another and advise the Industrial Registry on an agreed date to reschedule the conciliation conference.
- [25]On 3 March 2023, the solicitors for the Council wrote to the Industrial Registry advising that the parties were unsuccessful in coming to an agreed date. Relevantly the correspondence noted:
In particular, Mr Van Velzen did not indicate his consent to the adjournment on Monday, 6 March 2023 and while he did indicate he may be available on 20 March 2023, he did not agree with us to seek the matter be listed on this date.
- [26]After receipt of the Council's representative’s correspondence on 3 March 2023, I adjourned the conference.
- [27]Mr Van Velzen disputes that the conversation occurred as stated in the correspondence of 5 March 2023 and further alleges that it was agreed that the Council would not be represented by lawyers at the conference.
- [28]Prior to the re-listed conference, the Respondent sought to be granted leave to be legally represented.
- [29]It is clear from the submissions made on behalf of both Council and Mr Van Velzen that the parties do not accept the other parties' characterisation and substance of the conversation had during the telephone discussion on 3 March 2023.
- [30]Neither of the parties swore an affidavit with respect to the conversation on 3 March 2023. Ultimately, I have concluded that the conversation is of no relevance to the issue before me in any event.
- [31]If Mr Van Velzen was operating under an assumption, erroneous or otherwise, that the Council would not seek to be legally represented then such an assumption should have been displaced once he received the application filed on 14 March 2023.
- [32]In any event, it is clear now that Mr Van Velzen objects to legal representation. For the reasons referred to above, I do not consider that it would be unfair to grant leave and further, I consider by granting leave, the proceedings will be dealt with more efficiently.
- [33]Whether leave is granted for legal representation is an exercise of discretion of the Commission having regard to s 530(1)(e)(ii) of the Act. Relevantly, the Commission can not confine a litigant to particular legal representatives. Once leave is granted, the choice of legal representation falls on the party granted leave.
Order
- [34]Accordingly, I make the following order:
Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).