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  4. Smith & Sherlock v State of Queensland (Queensland Health) (No. 2) - [2023] QIRC 298

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Smith & Sherlock v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 298

Smith & Sherlock v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 298

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No. 2) [2023] QIRC 298

PARTIES:

Smith, Paul Joseph

(First Complainant)

&

Sherlock, Susannah

(Second Complainant)

v

State of Queensland (Queensland Health)

(First Respondent)

&

Thistlethwaite, Kenneth

(Second Respondent)

CASE NO.:

AD/2022/86 & AD/2022/87

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

18 October 2023

MEMBER:

Power IC

ORDERS:

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

CATCHWORDS:

HUMAN RIGHTS  – DISCRIMINATION LEGISLATION  – Application in existing proceedings – where complainants filed a notice of non-party disclosure – where nominated party and affected party objects to the notice of non-party disclosure – where complainants  seeks a decision regarding the objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld) – where a nominated party applied for leave to be legally represented – where complainants opposes application – leave is granted for legal representation

LEGISLATION:

Anti-Discrimination Act 1991 (Qld)

Human Rights Act 2019 (Qld), ss 5 and 15

Industrial Relations Act 2016 (Qld), s 530

Industrial Relations (Tribunals) Rules 2011 (Qld), rr, 64E and 64F

Public Interest Disclosure Act 2010 (Qld)

CASES:

Atkins v Brisbane City Council [2020] QIRC 176

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

Reasons for Decision

Introduction

  1. [1]
    The Complainants in matter AD/2022/86 (Mr Smith) and AD/2022/87 (Dr Sherlock) allege that the Respondents have engaged in contraventions of the Anti-Discrimination Act 1991 (Qld) ('the Complaint').
  1. [2]
    On 16 December 2022, Dr Sherlock filed and served a Notice of Non-Party Disclosure (Form 29) on Mapien Pty Ltd ('Mapien').
  1. [3]
    Mapien filed an objection to the notice on 22 December 2022 within the requisite 7 days pursuant to r 64E(4)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('Tribunal Rules').  The objection operates as a stay on the notice pursuant to r 64F of the Tribunal Rules. Dr Sherlock emailed the Registry on 4 January 2023 seeking a determination of the objection.
  1. [4]
    The matters AD/2022/86 and AD/2022/87 were joined by consent on 24 February 2023. Dr Sherlock is the Complainant in AD/2022/87 and the representative of the Complainant in AD/2022/86.
  1. [5]
    The Complainant's Statement of Facts and Contentions has since been filed, however the Respondents have sought further and better particulars prior to filing their response. That process is ongoing.
  1. [6]
    On 23 January 2023, Mapien 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')
  1. [7]
    On 24 January 2023, Dr Sherlock emailed the Commission advising that she did not object to Mapien being legally represented.
  1. [8]
    The Commission granted leave for Mapien to be legally represented at a mention on 25 January 2023.
  1. [9]
    On 28 August 2023 Mapien sought confirmation that leave had been granted following which Dr Sherlock advised that the Complainants objected to Mapien obtaining leave to be legally represented.
  1. [10]
    The Commission sought clarification from Dr Sherlock, noting that leave had been granted in 25 January 2023 following her notification that she held no objections. Dr Sherlock advised that her consent to legal representation related only to her matter (AD/2022/87) and that she objected to the legal representation for Mapien on behalf of Mr Smith (AD/2022/86).
  1. [11]
    Mapien's application for legal representation was heard on 21 September 2023.

Legislative framework

  1. [12]
    Section 530 of the IR Act relevantly provides for legal representative as follows:

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—

…

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

…

  1.  An industrial tribunal may give leave under subsection (1) only if—
  1.  it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1.  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.  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

…

  1. [13]
    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. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. 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. 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.

Complainant's submissions

  1. [14]
    Dr Sherlock made submissions regarding protection of whistle blowers generally and stated that although she had not made representations about objecting to Mapien having legal representation, she decided to ''flex every single interlocutory thing that I can, because I think it’s important that whistleblowers do have a voice and they’re heard fairly.''
  1. [15]
    Dr Sherlock referred to a separate decision in which leave was granted to the Respondents in the substantial matter to be represented, noting that she disagreed that the skills and expertise of an experienced industrial legal practitioner will be more helpful than a hinderance.
  1. [16]
    The decision of the Respondents to engage Counsel was raised by Dr Sherlock as resulting in an unequal power gradient. Dr Sherlock submitted that the Respondent has multiple legal representatives and that the non-party having a barrister would make the non-represented applicant's job more difficult.
  1. [17]
    Dr Sherlock made reference to people giving up on 'whistleblower protection' applications and that it was important for her to 'help anyone else navigate the process by making sure that every point is allocuted.' Dr Sherlock submitted that experienced legal advocates do not necessarily make the case easier to navigate.
  1. [18]
    On the question of fairness, Dr Sherlock submitted that she is 'not asking Mapien to fight any particular fight'.
  1. [19]
    Dr Sherlock made reference to the Human Rights Act, specifically referring to 'subsection 5'. Dr Sherlock submitted that it could be argued that 'everybody gets to have a lawyer at the table', and noted 'subsection 5' allows for measures to be taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination.

Mapien's submissions

  1. [20]
    Mapien made the following submissions at the hearing of the application, in summary:
  • Mapien is not a party to the substantive proceeding and has been drawn to the proceeding through circumstances which are plainly not of its own making;
  • The Complainants are seeking disclosure of the report in two anti-discrimination proceedings as well as a workers compensation proceeding following an unsuccessful application for disclosure in a general protections proceeding; 
  • As a result, Mapien is repeatedly being 'dragged' into responding to these applications and being required to engage substantively with various different arguments put by Dr Sherlock both on behalf of herself and her husband;
  • The report being sought is one that Mapien prepared for a government entity pursuant to a commercial contract which imposed various obligations of confidentiality on Mapien. Consequently, Mapien are now required to navigate these obligations;
  • The report was into what were ostensibly public interest disclosures and so there is an extra level of complexity overlaying the report and its disclosure as a result of any potential obligations that may arise under the Public Interest Disclosure Act;
  • The disclosure notices are not in the form typically expected to see in this jurisdiction, being more discursive and based on convoluted submissions. This requires a degree of understanding and familiarity with the processes of the Commission in order to be able to decipher those submissions and respond in a concise and considered way;
  • Regarding s 530(4), representation by experienced legal advocates in this proceeding would assist the matter to be dealt with more efficiently by allowing Mapien to focus its submissions on the real issues in dispute;
  • Although complexity isn't necessarily required, this matter involves a degree of complexity in that the Commission will need to have regard to the test of direct relevant and experience with the process of this commission will help Mapien address that technical legal test and that particular threshold;
  • The application of the tribunal rules and the complexity of this proceeding would be made more efficient by having legal representatives particularly in circumstances where there has been a request from Dr Sherlock that the NNPD be subject to an oral hearing and considerations be given as to whether Dr Sherlock and Mr Smith can be released from their obligations under the Harman undertaking as it relates to any documents that may or may not be disclosed;
  • The second limb relied upon is that despite being a well-resourced entity, Mapien is not in a position to represent itself effectively having regard to the volume of notices and volume of materials required to respond in Dr Sherlock's pursuit of these documents. It is also not able to represent itself effectively having regard to its obligations to both its government client, but also under the relevant legislation that regulates the public interest disclosures;
  • There is a degree of unfairness to Mapien were it to be refused legal representation given the way that the requests are articulated in the notice themselves and the document-intensive nature of some of the requests; and
  • In reply to the Complainant's submissions, Mapien submitted that that fact that the Respondents in the substantive matters are legally represented 'is of little comfort' to them. This is particular so where there is no guarantee that the present resistance of the NNPD will persist into the future.
  1. [21]
    Mapien contended that Dr Sherlock's submission that she intended to 'take every interlocutory point' indicates a degree of complexity in the way that Dr Sherlock intends to prosecute the proceeding tending in favour of leave being granted.

Consideration

  1. [22]
    The discretion to grant leave for a person ordered or permitted to appear in the proceedings to be legally represented is outlined in s 530(4) of the IR Act.
  1. [23]
    The Commission may grant leave if:
  1.  it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1.  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.  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. [24]
    In State of Queensland (Queensland Health) v Hume ('Hume'),[1] Deputy President Merrell gave the following consideration regarding 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.

  1. [25]
    In regard to the Complainant's reference to the Human Rights Act 2019 (Qld) ('HR Act'), the submissions were unclear, however I have taken the submission to relate to s 15(5) which is outlined as follows:

Section 15 Recognition and Equality

…

  1. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [26]
    I am not of the view that this section of the HR Act can be interpreted as facilitating the denial of an application to grant leave to be legally represented as a measure to assist persons disadvantaged because of discrimination. At the very least, there is no finding that either of the Complainants have been subject to discrimination as the substantive matter has not yet been heard and determined. Accordingly, it cannot be demonstrated that the Complainants have been 'disadvantaged by discrimination' such that measures to assist can be considered. I am also not persuaded that denying a person’s right be legally represented can reasonably be considered a measure to ‘assist or advance’ the Complainants.
  1. [27]
    I note that s 5(2)(a) provides that the HR Act applies to 'a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3'. In neither of these parts does a right exist to object to legal representation to persons involved in a proceeding.
  1. [28]
    The Complainants appear to view the Respondent's retention of both solicitors and Counsel as providing an unfair advantage which will be exacerbated by Mapien's retention of Counsel. I have considered this submission carefully, however am not of the view that permitting Mapien to be legally represented will lead to unfairness. In circumstances where it is submitted that Mapien is not able to represent itself effectively having regard to its obligations to both its government client and the relevant legislation along with the volume of information sought, it would in my view be unfair to not allow Mapien to be legally represented. 
  1. [29]
    There are potentially complex issues associated with the objections raised by Mapien, including issues relating to commercial confidentiality and Mapien's obligations pursuant to the Public Interest Disclosure Act 2010 (Qld). Consideration of the grounds of objection under the Tribunal Rules as they relate to the documents sought will be assisted by legal representation and I am satisfied that the matter will consequently be dealt with more efficiently having regard to that complexity.
  1. [30]
    I also note that Mapien has been granted leave to be legally represented in the matter AD/2022/86. A hearing of the objections to the production of the documents will be held for the joint matters of AD/2022/86 and AD/2022/87. In these circumstances it would be greatly inefficient to allow legal representation for one matter but not another where the matters have been joined.
  1. [31]
    In considering the issue of fairness, I note the matter of Atkins v Brisbane City Council[2] in which it was considered that an Applicant not being legally represented does not mean the Respondent should be denied the opportunity to efficiently present its case via a legal representative.  Mapien's interests are not necessarily the same as the Respondents, and as noted in submissions it is open to the Respondents to withdraw their objection at any point.
  1. [32]
    Having regard to the complexity of the matter and the resulting unfairness should Mapien be denied legal representation in circumstances where it could not adequately represent its interests, I am of the view that it is appropriate to grant leave for Mapien to be legally represented.

Order

  1. [33]
    I make the following order:

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

Footnotes

[1] [2022] ICQ 001.

[2] [2020] QIRC 176.

Close

Editorial Notes

  • Published Case Name:

    Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No.2)

  • Shortened Case Name:

    Smith & Sherlock v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2023] QIRC 298

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    18 Oct 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
Atkins v Brisbane City Council [2020] QIRC 176
2 citations
Jump To
Cite 1 - [2020] QIRC 176
Cite 2 - [2020] QIRC 176
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
2 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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