Smith v Thistlethwaite[2023] QIRC 29

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   On 28 November 2022, the Queensland Human Rights Commission referred a complaint to the Queensland Industrial Relations Commission ('the Commission') filed by Mr Paul Joseph Smith ('the Complainant'), alleging discrimination and victimisation under the Anti-Discrimination Act 1991 (Qld) as well as reprisal under the Public Interest Disclosure Act 2010 (Qld) ('the Complaint').

2. [2]
   The Complainant appointed his wife, Dr Susannah Sherlock, as agent to represent him in the proceedings.

3. [3]
   On 13 December 2022, Dr Kenneth Thistlethwaite ('the First Respondent') and the State of Queensland (Queensland Health) ('the Second Respondent') (together, 'the Respondents'), filed an application in existing proceedings, seeking leave to be legally represented, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld) ('the IR Act').

4. [4]
   The Complainant objects to the Respondents being granted leave to be legally represented.

5. [5]
   This decision is the determination of whether leave should be granted for the Respondents to be legally represented in the proceedings.

Legislative framework

6. [6]
   Section 530 of the IR Act relevantly provides for legal representation as follows:

530  Legal representation

…

3. (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—

…

3. (c)
   for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or

…

3. (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)
   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

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 organisation 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. [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

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 the party's or person's interests in the proceedings; 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.

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

[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.

Respondents' submissions

9. [9]
   The Respondents submit that, with regard to s 530(4)(a) of the IR Act, the matter does not need to be complex to satisfy the Commission that the granting of leave would enable the proceedings to be dealt with more efficiently and further, that a matter which is not complex may nevertheless be dealt with more efficiently by allowing the parties to be legally represented.

10. [10]
    The Respondents submit that there is significant complexity to the complaint, arising from a range of contested material facts and legal issues. Where leave is granted, the Respondents submit that its legal representatives would assist the Commission to efficiently deal with the Complaint by:

1. (a)
   narrowing the matters at issue;

2. (b)
   preparing concise and relevant evidence and submissions;

3. (c)
   testing the evidence before the Commission by examining the witnesses;

4. (d)
   identifying and applying relevant legal principles; and

5. (e)
   preparing a single set of pleadings/evidence.

11. [11]
    The Respondents highlight that the Commission has consistently held that legal representatives generally assist the Commission to efficiently deal with proceedings, referring to State of Queensland (Department of the Premier and Cabinet) v Dawson ('Dawson').^[2]

12. [12]
    The Respondents highlight that it is bound by the model litigant principles in instructing its representatives, who have experience in the jurisdiction and have a paramount duty to the administration of justice and the Commission.

13. [13]
    The Respondents submit that there are no relevant factors against leave being granted and outlined five 'significant factors' that would favour the granting of leave for legal representation as follows:

First … the Respondents submit that allowing them to be legally represented will assist the Commission to efficiently deal with the proceedings. That is particularly so where the Respondents will seek that the Related Proceeding be heard jointly with the Complaints.

Second, in determining the Complaints the Commission can award uncapped damages and make significant findings about the State and its employees (for whom the State may be vicariously liable), and Dr Thistlethwaite personally. The State and Dr Thistlethwaite should be afforded the opportunity to present the most cogent legal defence available, and will be assisted by legal representation.

Third, regarding Dr Thistlethwaite in particular, the Commission's findings about another State employee in the Related Proceedings are apposite to Dr Thistlethwaite:

The Second Respondent is an employee of the First Respondent who has no legal training or relevant litigation experience. In circumstances where he is subject to an application for which the Commission may award uncapped damages, it would be unfair to deny him the ability to access legal representation.

Fourth, the State does not oppose Mr Smith … being represented. If Mr Smith … [is] not legally represented (whether by choice or circumstance) that 'is no reason to deny the other party or parties' legal representation'. Mr Smith is represented by Dr Sherlock, who has experience appearing on his behalf in a previous QIRC hearing, and in the Related Proceeding.

Fifth, if the Complaints and Related Proceedings are heard together, but the Respondents to the Complaints are not granted leave to be legally represented, that will create procedural confusion.^[3]

Complainant's submissions

14. [14]
    At the outset, the Complainant highlights that he does not object to the First Respondent being represented by the lawyers of the Second Respondent, nor does he object to the Second Respondent being represented by the 'State Counsel'.

15. [15]
    The Complainant contends that efficiency should not be at the expense of fairness to the parties, submitting that using in house counsel is more efficient as it promotes a less adversarial approach and may allow for conciliation, removing the necessity for a full proceeding and reduces taxpayer burden regarding legal costs.

16. [16]
    The Complainant submits that the discretion to allow a party to have legal representation is to allow fairness, however, in this matter, the Respondents already have in-house legal representation, which was not the case in Dawson, as relied upon by the Respondents.

17. [17]
    The Complainant refers to a number of decisions of the Fair Work Commission regarding the issue of legal representation and further submits legal representation should be reserved for those who need legal help to provide fairness. The Complainant submits that the precedent of creating further formality and imbalance in the Tribunal causes difficulty for others who are unable to afford legal fees.

18. [18]
    The Complainant outlines that the Complaint has been before the Second Respondent since 2020 and has impacted on both Dr Sherlock and the Complainant financially, causing the Complainant to not have legal representation. The Complainant submits that it is unfair that the Second Respondent is now requesting 'specialist legal services'. The Complainant submits that, as he is currently without income, the lack of income over the protracted time period increases inequity if leave for 'specialist representation' is allowed. The Complainant further submits that the Second Respondent has protracted the Complaint by requesting further legal representation.

19. [19]
    The Complainant disputes the Respondents submission that there are no relevant factors against leave being granted, submitting that the 'most obvious' factor being that the Respondents already have internal legal representation at their disposal.

20. [20]
    The Complainant notes that Dr Sherlock is not an experienced litigator, nor is Dr Sherlock formally trained and submits that the Respondents appear to be taking advantage of an 'impecunious opponent' and is inconsistent with the model litigant principles.

Consideration

21. [21]
    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

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 the party's or person's interests in the proceedings; 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.

22. [22]
    In Dawson,^[4] 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:

23. [23]
    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.^[5] I consider the circumstances of this matter involves complexity on the basis that the claim raises allegations relating to both discrimination pursuant to the Anti‑Discrimination Act 1991 (Qld) and reprisal pursuant to the Public Interest Disclosure Act 2010 (Qld) and are based upon a number of contested matters of fact. I also note that this matter involves the statutory interpretation of the term 'marital status' giving rise to contested legal issues.

24. [24]
    This matter is one of three separate applications currently in progress arising from related facts involving the same employer, the Complainant and the Complainant's husband. In these circumstances, I consider the matter to have a level of complexity such that legal representation will allow for more efficient proceedings.

25. [25]
    I accept the submission that, where the Respondents are legally represented, it will allow the matters at issue to be narrowed. In these circumstances, participation in a conference with legal representation will likely be more productive as irrelevant matters can be excluded at an early stage. In the event the matter proceeds to hearing, legal representation will ensure relevant evidence and legal principles are applied, allowing the Commission to deal with the matter more efficiently.

26. [26]
    I also note the submission in which the Respondents have indicated that the First and Second Respondents are likely to file a single set of pleadings and evidence. In circumstances where the duplication of materials can be avoided, the proceedings will be dealt with more efficiently if the Respondents are legally represented. 

27. [27]
    On the question of fairness, I note the Respondents' submission that it is bound by the model litigant principles. These principles require that the power of the State be used for public good and in the public interest, and the principles of fairness are adhered to in the conduct of all litigation.

28. [28]
    In the related matter of Smith v State of Queensland (Queensland Health) & Anor,^[6] I held the following regarding legal representation for an employee named as a party to a proceeding along with their employer:

The Second Respondent is an employee of the First Respondent who has no legal training or relevant litigation experience. In circumstances where he is subject to an application for which the Commission may award uncapped damages, it would be unfair to deny him the ability to access legal representation.

29. [29]
    The same reasoning applies to the First Respondent in this matter, who also has no legal training or relevant litigation experience and is subject to an application for which uncapped damages may be awarded. In these circumstances, it would be unfair not to allow the First Respondent to be represented pursuant to s 530(4)(b) of the IR Act. I note the Complainant does not object to the First Respondent being represented by the lawyers of the Second Respondent, however, maintains the objection to the Second Respondent being represented by external lawyers.

30. [30]
    The Complainant's contention that the use of in-house counsel would be more efficient 'as it promotes a less adversarial approach' is not supported by evidence.

31. [31]
    There is no evidence to support the Complainant's contention that the Second Respondent is taking advantage of an 'impecunious opponent'. It is the right of any party appearing before the Commission in matters of this type to apply for leave to be legally represented, regardless of the status of the other party. As outlined above, the Respondents are bound by the model litigant principles and their legal representatives' professional obligations ensure adherence to the principles of fairness. 

32. [32]
    I note the Complainant's reference to a number of decisions of the Fair Work Commission. Each of these decisions turn on their own facts, however, I note the Complainant's reference to the principle that the discretion is not to allow a party to be more efficiently represented but rather the matter to be dealt with more efficiently. To be clear, my decision to give leave to the Respondents in this matter to be legally represented is not to allow for more efficient representation of those parties, but to enable the proceedings to be dealt with more efficiently. 

Conclusion

33. [33]
    For the reasons outlined above, I grant leave for the Respondents to be legally represented in the proceedings pursuant to s 530(1)(c) of the IR Act.

Order

34. [34]
    I make the following order:

Leave is granted for the First Respondent and the Second Respondent to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld).