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  4. Phillips v State of Queensland (Department of Transport and Main Roads) - [2023] QIRC 174

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Phillips v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 174

Phillips v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 174

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 174

PARTIES:

Phillips, Helen

(Applicant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

GP/2022/7

PROCEEDING:

Application for legal representation

DELIVERED ON:

13 June 2023

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – application for legal representation – where Respondent has applied for leave to be legally represented – where Applicant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – circumstances of the case – where leave is granted for legal representation

LEGISLATION:

Fair Work Act 2009 (Cth)

Industrial Relations Act 2016 (Qld), ss 530 and 531

CASES:

State of Queensland (Queensland Health) v Hume [2022] IQC 001

State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118

Clements v Phillips (No. 2) [2023] QIRC 95

Reasons for Decision

Introduction

  1. [1]
    On 26 April 2022, Ms Helen Phillips ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [2]
    On 16 March 2023, the Commission issued a Further Directions Order directing the Applicant and the State of Queensland (Department of Transport and Main Roads) ('Respondent') to file and serve their statement of facts and contentions ('SOFC').
  1. [3]
    By application filed on 09 May 2023, the Respondent filed an application for leave to be legally represented ('the Application') with accompanying submissions and Affidavit of Mr Grant Wallace pursuant to s 530(1)(e)(ii) of the IR Act.
  1. [4]
    On 16 May 2023, the Applicant filed and served submissions and Affidavit opposing the Respondent's Application.
  1. [5]
    The question for determination is whether leave should be granted for the Respondent to be legally represented in the proceedings.

Legislative framework

  1. [6]
    Section 530 of the IR Act relevantly provides:

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—

…

  1. (d)
    for other proceedings before the commission, other than the full bench—
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision—the commission gives leave; or

…

  1. (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
  1. (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
  1. (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

…

  1. (7)
    In this section—

…

relevant provision, for a proceeding before the commission other than the full bench, means—

  1. (a)
    chapter 8;

…

  1. [7]
    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
  1. (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
  1. (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.
  1. [8]
    In State of Queensland (Queensland Health) v Hume ('Hume'),[1] Deputy President Merrell opined the following with respect to the construction of s 530(4)(a) of the IR Act:
  1. [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).
  1. [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.
  1. [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.'
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.
  1. [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.

Respondent's submissions

  1. [9]
    The Respondent submits, in summary, that:
  • the subsections in s 530(4) of the IR Act are listed 'in the alternative.' As the Commission only needs to be satisfied that one of those subsections applies prior to exercising discretion;
  • a matter does not need to be complex as a matter which is not complex may nevertheless be dealt with more efficiently by allowing parties to be legally represented;
  • there are significant factual and legal complexity in this proceeding. The Respondent outlined the following reasons:
  1. (a)
    There is contention about which aspects of the Statement of the Respondent ought to be required to respond to. Specifically, the Statement addresses new matters that are not the subject of the Application, including referring to new matters that occurred after the date Ms Phillips made the Application, and Ms Phillips has not sought to amend her Application to address these matters;
  1. (b)
    The Statement addresses matters regarding the termination of Ms Phillips' employment with the Respondent on 2 March 2023, that are the subject of an application in another proceedings currently being dealt with by the Commission and are raised out of time, and therefore should not be the subject of the Statement in this proceeding;
  1. (c)
    The Statement alleges numerous breaches of the IR Act, each with its own complex legal test. In particular, the Statement makes 12 allegations regarding adverse action and allegations of coercion, undue influence or pressure and misrepresentation. Each of these matters involve complex legal and factual issues, and will not involve the consideration of legal issues that have either not been considered under the IR Act or have been given very limited consideration under the IR Act;
  1. (d)
    There is an array of factual disputes which are central to the Statement. These include whether the actions alleged in the Statement actually constitute adverse action within the meaning of section 282 of the IR Act and if so, whether the Respondent took adverse action because of a proscribed reason under section 285 of the IR Act. In particular, one of the questions the Commission will need to determine is whether the alleged action of the Respondent was authorised under the IR Act or nay other law of the State or Commonwealth, including the Public Service Act 2008 (Qld), and can therefore not be adverse action under section 282 of the IR Act;
  1. (e)
    The Statement refers to without prejudice correspondence between the Respondent and Ms Phillips on or around 25 November 2022. The contents of this correspondence made in a genuine attempt to reach a settlement cannot be put in evidence without the consent of both parties as joint privilege applies, and it is therefore inadmissible in this proceeding.
  • that if given leave, the Respondent's legal representatives would assist with narrowing the matters at issue presenting concise and testing relevant evidence and submissions, and to apply legal principles.
  • consequently, if given leave, the legal representatives would be able to efficiently assist the proceeding.
  • that the Respondents are bound by the model litigant principles and that the Respondent's 'representatives' have a paramount duty to the administration of justice.
  1. [10]
    The Respondent further submits that there are significant factors supporting the granting of leave, including the following: 
  • the efficiency of the proceedings;
  • the Applicant's allegations in the SOFC that the Respondents have contravened numerous civil penalty provisions.
  • legal representation would assist in presenting a cogent legal defence.
  • the Respondent does not oppose if the Applicant decides to be legally represented, thus if the Applicant is not represented by choice or due to circumstances there is no reason to deny the other party legal representation. Subsequently, the Respondent acknowledges that the Applicant had numerous public service appeals and an application for reinstatement on her own behalf, thus showing the Applicant's familiarity with the Commission's processes.
  1. [11]
    Finally, the Respondent submits that the Commission grant leave under s 530(1)(e)(ii) of the IR Act to be legally represented.

Applicant's submissions

  1. [12]
    In response to the Respondent's submissions, the Applicant contends that the Commission is required to consider the first issue in determining whether leave should be granted for legal representation, due to the 'complexity of the matter'. The Applicant referred to s 447(2) of the IR Act, stating that:

Section 447(2) IR Act provides that the commission must perform its functions in a way that –

  1. (a)
    is consistent with the objects of this Act; and
  2. (b)
    avoid unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
  1. [13]
    The Applicant considers that the Respondent's intention is to 'focus on technicalities' which contradicts s 447(2) of the IR Act.
  1. [14]
    The Applicant submits that although the Respondent asserts the matters will involve the consideration of legal issues which have not been considered under the IR Act or have been given very limited consideration under the IR Act, the Commonwealth equivalents in the Fair Work Act 2009 (Cth) have been considered.
  1. [15]
    The Applicant further submits that 'every matter in the Commission should be considered complex' if the 'technicalities' are the only focus of the considered criteria in the complexity of the matter. Thus, focusing on technicalities does not establish an efficient proceeding nor facilitate a 'fair and practical conduct of proceedings, however, presenting evidence, reasons and intent for conduct does'.
  1. [16]
    The Applicant highlights that every matter before the Commission could be considered to have 'factual issues' because that is the point of bringing a matter to the Commission. 
  1. [17]
    The Applicant referred to s 7(1)(a) of the State Records Act 2002 stating that keeping of public records states a public authority must make and keep full and accurate records of its activities. The Applicant further submits that the Respondent would already have full and accurate records for this purpose with legal representation not assisting in the efficient retrieval of this evidence.
  1. [18]
    The Applicant submits that the Respondent has been provided with the evidence on multiple occasions to date, however no action was undertaken by the Respondent and/or the evidence has been disregarded. Thus, rather than using public funds to a legal representative in a proceeding against an (now former) employee, better use of public funds would be for 'investigating the matters raised'.
  1. [19]
    The Applicant highlights s 3 of the IR Act submitting the following:

…the main purpose of this Act is to provide for a framework for cooperative industrial relations that-

  1. (a)
    is fair and balanced; and
  2. (b)
    supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders.
  1. [20]
    The Applicant submits that social justice is a concept that relates amongst other things to the fair treatment of all people in society and the fair and equitable distribution of opportunities and privileges in a society.
  1. [21]
    The Applicant submits that the Respondent has the benefit of the cost of its representation being funded by public money. Thus, the Respondent's subjected employees have 'no fear' as they do not bear the financial costs of this proceeding.
  1. [22]
    The Applicant submits that any costs of legal representation is borne by the Applicant and if costs are awarded to the Respondent, the Applicant will also bear those costs.
  1. [23]
    The Applicant further highlights the financial implications in bringing the matter before the Commission to clear the Applicant's 'damaged reputation' and the detrimental consequences of the Applicant's termination of employment, submitting that is unlikely anyone would put themselves at such risk without reasonable cause.
  1. [24]
    The Applicant further submits that being self-represented against a Respondent with the resources of a public authority does not support social justice and would not be a fair and balanced proceeding if the Respondent is legally represented.
  1. [25]
    Subsequently, the Applicant submits if the Respondent is given leave to be legally represented the financial risk would be too great and she would have to seek to withdraw her application. 

Consideration

  1. [26]
    As outlined above, s 530(4) of the IR Act provides that the Commission may grant leave for a party to be legally represented if:
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. (b)
    it would be unfair not to allow the party or person to be represented because the party or person is unable to represent the party's or person's interests in the proceedings; or
  1. (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.
  1. [27]
    The Respondent submits that leave should be granted pursuant to s 530(4)(a).
  1. [28]
    Section 530(4)(a) of the IR Act provides that leave may be granted if it would enable the matter to be dealt with more efficiently by the Commission. Whilst regard must be had to the complexity of the matter, the matter does not have to be more complex than other matters.[2]
  1. [29]
    In Dawson,  his Honour O'Connor VP referred to the consideration of legal representation and the efficient conduct of litigation by a number of authorities including the following:

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 …

  1. [30]
    There is no evidence that the Respondent intends to 'focus on technicalities' in contradiction of s 447(2) of the Act as submitted by the Applicant. The granting of leave to be legally represented is not inconsistent with the obligation under s 447(2) to avoid unnecessary technicalities and facilitate the fair and practical conduct of proceedings. In matters such as this which involve some level of complexity, the provision of legal representation will facilitate the fair and practical conduct of proceedings by assisting the Commission.
  1. [31]
    I further rely on the reasoning in Dawson, where his Honour VP O'Connor stated:

'The Commission has a responsibility to ensure that its practice and procedure are adhered to in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Equally, the Commission has an obligation to ensure its limited resources are effectively utilised. The involvement of Counsel will, in my view, assist in achieving that objective.'

  1. [32]
    The granting of legal representation is also not contrary to the purpose of the Act which includes the delivery of high-quality services, economic prosperity and social justice for Queenslanders.
  1. [33]
    The Applicant submits that social justice is a concept that relates amongst other things to the fair treatment of all people in society and the fair and equitable distribution of opportunities and privileges in a society. The granting of leave for a party to be legally represented in proceedings such as these does not interfere with the fair treatment of the Applicant.
  1. [34]
    I accept the Respondent's submission that it is bound by the model litigant principles. These principles require that the State must act as a model litigant in the conduct of all litigation by adhering to the principles of fairness.
  1. [35]
    The Applicant submits that it would not be a 'fair and balanced' hearing if the Respondent is legally represented. In circumstances where the Commission can award uncapped damages and make serious findings about the Respondent and its employees, I do not consider that it would be unfair or unbalanced to allow the Respondent to be legally represented.
  1. [36]
    As I considered in Clements v Phillips:[3]

Leave in these circumstances is granted not to afford greater power to a party but to assist the Commission with the efficient conduct of the proceedings. It is also noted that a lawyer’s duty to the Commission prevails over that of the duty to their client. As considered in E. Allen and Ors v Fluor Construction Services Pty Ltd -

A lawyer’s duty to the Commission is paramount and supersedes 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.

  1. [37]
    The Applicant submits that she would seek to withdraw her application if leave was granted for the Respondent to be legally represented due to the potential financial risk of an adverse costs order. It is a matter for the Applicant to determine whether to proceed with her application, however I note that the issue of a costs order has not been ventilated in this matter.

Conclusion

  1. [27]
    For the reasons outlined above, I grant leave for the Respondent to be legally represented in the proceedings pursuant to s 530(4) of the IR Act.

Order

  1. [28]
    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).

Footnotes

[1] [2022] ICQ 001.

[2] State of Queensland (Queensland Health) v Hume [2022] ICQ 001.

[3] (No. 2) [2023] QIRC 095.

Close

Editorial Notes

  • Published Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2023] QIRC 174

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    13 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Clements v Phillips (No. 2) [2023] QIRC 95
2 citations
Jump To
Cite 1 - [2023] QIRC 95
Cite 2 - [2023] QIRC 95
State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118
1 citation
Jump To
Cite 1 - [2021] QIRC 118
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
2 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
State of Queensland (Queensland Health) v Hume [2022] IQC 1
1 citation
Jump To
Cite 1 - [2022] IQC 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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