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Johnson v State of Queensland (Queensland Health)[2024] QIRC 102

Johnson v State of Queensland (Queensland Health)[2024] QIRC 102

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnson v State of Queensland (Queensland Health) [2024] QIRC 102

PARTIES:

SUZAN JOHNSON

(applicant)

v

STATE OF QUEENSLAND (QUEENSLAND HEALTH)

(respondent)

FILE NO:

TD/2022/156

PROCEEDING:

Application: questions referred to the Full Bench

DELIVERED ON:

2 May 2024

HEARING DATE:

5 March 2024

MEMBERS:

Davis J, President, O'Connor, Vice President, Pidgeon, Industrial Commissioner

ORDERS:

  1. Question 1: Whether the applicant can be represented by Mr William Parry as agent at the hearing pursuant to a further amended Form 33 Notice of Appointment of Agent to be filed by the applicant and which names Mr Parry as the applicant’s agent?

Answer:  No.

  1. Question 2: Whether the applicant can be represented by Mr William Parry pursuant to a grant of leave to, inter alia, the applicant, to be represented by a “lawyer” pursuant to s 530 of the Industrial Relations Act 2016?

Answer:  No.

  1. Further question 1:  On the construction of s 1102 of the Industrial Relations Act 2016, in particular whether s 1102 is enlivened to authorise representation by an agent not identified by s 1102(1)?

Answer:  No.

  1. Further question 2:  Whether, if Mr Parry is a person who has been appointed as a lawyer pursuant to the order of Industrial Commissioner Dwyer, that order should be remitted to Industrial Commissioner Dwyer for further consideration?

Answer:  Given that Mr Parry cannot lawfully represent Ms Johnson before the Commission there is no need to consider this issue.

  1. By 4:00pm on 16 May 2024 the parties exchange written submissions on the question of costs.
  2. Both parties have leave to file and serve, by 4.00pm on                                    23 May 2024 an application for leave to make oral submissions on the question of costs.
  3. In the absence of any application being filed before 4.00pm on 23 May 2024 the question of costs will be determined on the written submissions without further oral argument.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – PROCEEDINGS IN INDUSTRIAL TRIBUNALS – REPRESENTATION OF PARTIES – where the applicant brought a claim for unfair dismissal – where she purported to appoint as an agent to represent her an incorporated association – where a natural person was nominated as the “contact person” for the incorporated association – where an alternative natural person was nominated as “contact person” – where the law was amended so that no agent receiving remuneration could be appointed – where the alternative agent was receiving remuneration – where there were transitional provisions relevant to the amendment – whether the transitional provisions operated such that, having appointed an agent, the applicant was not bound by the restrictions in the amendments – where the proposed agent was a lawyer who was admitted to practise but did not hold a practising certificate – whether the agent was relevantly a “lawyer” – whether the agent could represent the applicant in the Commission without a practising certificate

LEGISLATION:

Acts Interpretation Act 1954 s 530

Anti-Discrimination Act 1991

Associations Incorporation Act 1981

Federal Court Rules 2011 (Cth)

Industrial Relations Act 2016 s 486, s 529, s 530, s 530A, s 1102

Industrial Relations and Other Legislation Amendment Act 2022

Legal Practitioners Act 1981 (SA)

Legal Profession Act 2007 s 5, s 6, s 21, s 24

CASES:

Gilbert v Metro North Health and Hospital Service (No 2) [2023] ICQ 20, cited

Hillier v Martin (No 8) (2021) 155 ACSR 395; [2021] FCA 1272, considered

R v A2 (2019) 269 CLR 507; HCA 35, followed

COUNSEL:

M Williams for the applicant

CJ Murdoch KC with MJ Brooks for the respondent

SOLICITORS:

Saines Legal for the applicant

Minter Ellison for the respondent

  1. [1]
    Various questions have been referred to the Full Bench which arise from Suzan Johnson’s desire to be represented by a particular lawyer in her principal application where she seeks reinstatement of her employment.

Background

  1. [2]
    Ms Johnson is a very experienced nurse and midwife.  She attained her registration as a nurse in 1985 and as a midwife in 1996.
  2. [3]
    Until 28 April 2022, Ms Johnson was employed as a nurse and midwife by the State of Queensland through the Department of Queensland Health.  She worked for Queensland Health for about nine years.
  3. [4]
    On 28 April 2022, Queensland Health terminated Ms Johnson’s employment after forming the view that she disobeyed a directive[1] by not being vaccinated against Covid-19.
  4. [5]
    On 19 May 2022, Ms Johnson filed an application in the Commission seeking reinstatement pursuant to provisions of the Industrial Relations Act 2016 (IR Act).  She alleges that her dismissal was harsh, unjust or unreasonable.[2]  The respondent to that application is “State of Queensland (Queensland Health)”.  For convenience, we will refer to the respondent as “Queensland Health”.
  5. [6]
    On 9 June 2022, Queensland Health filed an application seeking leave to be legally represented in Ms Johnson’s reinstatement application.
  6. [7]
    On 17 June 2022, Ms Johnson signed a notice of appointment of agent[3] which was filed on 20 June 2022.
  7. [8]
    By the notice of appointment of agent:[4]

“[Ms Johnson], appoint as my agent

Organisation:

QNurses First Inc.

Contact person:

David James Kerr

Postal address:

41 Campbell St

Suburb/Town  Bowen Hills

Postcode  4006

Phone number:

[redacted]

Fax number:

 

Mobile number:

[redacted]

Email address:

[email protected]  

  1. [9]
    QNurses First Inc. is an incorporated association which is part of a group who style themselves “The Red Union” (the Red Union Group).
  2. [10]
    On 20 June 2022, an application filed by Queensland Health came before Industrial Commissioner Dwyer.  The Industrial Commissioner ordered:

“…

  1. 1.
    That the Respondent and Applicant are granted leave to be legally represented in these proceedings pursuant to section 530 of the Industrial Relations Act 2016 (Qld).”
  1. [11]
    Ms Johnson’s reinstatement application was assigned to Industrial Commissioner Pidgeon.
  2. [12]
    On 1 June 2023, the Industrial Registrar received an email from “Legal Support [email protected]” in these terms:

“Dear registry,

Updated representative contact person

I write to ensure updated contact details for a matter TD/2022/156 before Commissioner Pidgeon.  Mr David Kerr no longer provides services to QNurses FIrst Inc.

The new Applicant representative contact person details are as follows:

 Contact person: William Parry

 Phone Number: [redacted]

 Mobile Number: [redacted]

 Email Address for Service: [email protected] CC [email protected]

On 18 June 2022, the Applicant, Ms Johnson, appointed QNurses First Inc. as her appointed representative (see attached).  Ms Johnson has enquired as to whether her association can still assist in this matter, I have reviewed and found no withdrawal of representation occurred.

The Respondent representative is copied to this email by way of service.”[5]

  1. [13]
    The author of the email was Mr William Parry.
  2. [14]
    On 1 September 2023, Ms Margaret Gilbert signed a letter as “President, Nurses Professional Association of Queensland” addressed “To Whom it may concern”.  The letter stated, relevantly:

“I hereby confirm Mr William Parry, Senior Advocate of Red Union Support Hub, is authorised to act on behalf of the Nurses Professional Association of Queensland (“NPAQ”) as a Senior Case Manager and Interstate Lawyer.”

  1. [15]
    The IR Act has always regulated the rights of parties to representation before the Commission.[6]  On 3 November 2022, the Industrial Relations and Other Legislation Amendment Act 2022 (the Amending Act) was proclaimed into law.  The Amending Act amended various provisions of the IR Act including those which regulate representation of parties litigating in the Commission.  There are also transitional provisions.[7]
  2. [16]
    Mr William Parry was admitted to practise as a barrister and solicitor of the Supreme Court of South Australia on 18 February 2019.  He has never held a South Australian practising certificate or a practising certificate in Queensland or any other State.  The Legal Profession Conduct Commissioner of South Australia has certified that no findings of misconduct[8] against Mr Parry have been made in South Australia.  There is nothing to suggest that findings of misconduct have been made against him in any other jurisdiction.
  3. [17]
    Pursuant to s 486 of the IR Act, the following questions were referred to the Full Bench:
  1. (a)
    Question 1: Whether the Applicant can be represented by Mr William Parry as agent at the hearing pursuant to:
  1. (i)
    the Form 33 Notice of Appointment of Agent filed by the Applicant on 18 June 2022[9]; and/or
  1. (ii)
    a further or amended Form 33 Notice of Appointment of Agent to be filed by the Applicant and which names Mr Parry as the Applicant’s agent;

 in particular, taking into account the transitional provision as set out in section 1102 of the IR Act.

  1. (b)
    Question 2: Whether the applicant can be represented by Mr William Parry pursuant to a grant of leave to, inter alia, the Applicant, to be represented by a ‘lawyer’ pursuant to section 530 of the IR Act.” (the referred questions)
  1. [18]
    Ms Johnson did not press the issue of Mr Parry’s entitlement to represent her at the hearing pursuant to the notice of appointment of agent filed in June 2022.  Therefore it was common ground between the parties that the issues raised by referred question 1(i) need not be answered.
  2. [19]
    During the hearing of the other referred questions by the Full Bench on 5 March 2024, the parties were granted leave to file and serve further written submissions addressing two further specific issues as follows:

“…

  1.  the construction of section 1102 of the Industrial Relations Act 2016, in particular whether section 1102(2) is enlivened to authorise representation by an agent not identified by section 1102(1); and
  1.  as to whether if Mr Parry is a person who has been appointed as a lawyer pursuant to the order of Industrial Commissioner Dwyer, that order should be remitted to Industrial Commissioner Dwyer for further consideration.” (the further questions)
  1. [20]
    Written submissions were duly filed by both parties.

The Statutory provisions and general discretions

  1. [21]
    Before the amendments, ss 529, 530 and 530A of the IR Act[10] provided:

“529  Representation of parties generally

  1.  Subject to section 530A(4), in proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—
  1.  an agent appointed in writing; or
  1.  if the party or person is an organisation—an officer or member of the organisation.
  1.  In this section—

proceedings—

  1.  means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1.  includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

530  Legal representation

(1A)  This section applies in relation to proceedings other than a proceeding for a public service appeal.

  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 in the court—
  1.  all parties consent; or
  1.  the court gives leave; or
  1.  the proceedings are for the prosecution of an offence; or
  1.  for proceedings before the full bench—the full bench gives leave; or
  1.  for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or
  1.  for other proceedings before the commission, other than the full bench—
  1.  all parties consent; or
  1.  for a proceeding relating to a matter under a relevant provision—the commission gives leave; or
  1.  for proceedings before an Industrial Magistrates Court—
  1.  all parties consent; or
  1.  both of the following apply—
  1.  the proceedings relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; and
  1.  an Industrial Magistrates Court gives leave; or
  1.  the proceedings are for the prosecution of an offence; or
  1.  for proceedings before the registrar, including interlocutory proceedings—
  1.  all parties consent; or
  1.  the registrar gives leave; or
  1.  for proceedings before a conciliator—the conciliator gives leave.
  1.  However, the person or party must not be represented by a lawyer—
  1.  if the party is a negotiating party to arbitration proceedings before the full bench under chapter 4, part 3, division 2; or
  1.  in proceedings before the commission under section 403 or 475; or
  1.  in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).
  1.  Despite subsection (1), a party or person may be represented by a lawyer in making a written submission to the commission in relation to—
  1.  the making or variation of a modern award under chapter 3; and
  1.  the making of a general ruling about the Queensland minimum wage under section 458.
  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 itself, himself or herself; 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.[11]
  1.  For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1.  an employee or officer of the party or person; or
  1.  an employee or officer of an entity representing the party or person, if the entity is—
  1.  an organisation; or
  1.  an association of employers that is not registered under chapter 12; or
  1.  a State peak council.
  1.  In proceedings before the Industrial Magistrates Court for the prosecution of an offence under subsection (1)(e), the person represented can not be awarded costs of the representation.
  1.  In this section—

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

proceedings—

  1.  means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1.  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.  chapter 8; or
  1.  section 471; or
  1.  chapter 12, part 2 or 16.

530A Representation—public service appeals

  1.  This section applies in relation to a proceeding for a public service appeal.
  1.  A party to the appeal may appear personally or by an agent.
  1.  However, a party may not be represented by a person if—
  1.  the party has instructed the person to act as the party’s lawyer; and
  1.  in acting as the party’s lawyer, the person would be subject to the Legal Profession Act 2007.
  1.  Also, a party to an appeal about a promotion decision may be represented by an agent only with the leave of the commission.”
  1. [22]
    After the passage of the Amending Act, ss 529 and 530A of the IR Act[12] are relevantly as follows:

“529 Representation of parties generally

  1.  A party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented in the proceedings by—
  1.  a lawyer, only in accordance with section 530; or
  1.  an employee or officer of an organisation appointed in writing as the agent of the party or person; or
  1.  if the party or person is an organisation—an employee, officer or member of the organisation; or
  1.  if the party or person is an employer—an employee or officer of the employer; or
  1.  another person appointed in writing as the agent of the party or person, only with the leave of the industrial tribunal conducting the proceedings.
  1.  However, a party or person may not be represented under subsection (1)(e) by a person who—
  1.  directly or indirectly demands or receives a fee for representing the party or person; or
  1.  is an employee or officer of, or acting for, an entity (other than an organisation) that purports to represent the industrial interests of employees or employers.
  1.  The industrial tribunal may give leave under subsection (1)(e) only if—
  1.  giving leave 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 itself, himself or herself; 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.  In this section—

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

proceedings—

  1.  means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1.  includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

     …

530A  Representation—public service appeals

  1.  This section applies in relation to a proceeding for a public service appeal.
  1.  A party to the appeal may—
  1.  appear personally; or
  1.  be represented in the proceeding by another person under section 529.
  1.  However, a party may not be represented under subsection (2)(b) by a lawyer.
  1.  For this section, a party is taken not to be represented by a lawyer if the lawyer is—
  1.  an employee or officer of the party or person; or
  1.  if the party is represented by an organisation—an employee or officer of the organisation.”
  1. [23]
    Section 530 was also amended by the Amending Act.  A new s 530(1)(d) was added, and ss 530(4(b) and 530(5)(b) were reworded.  These amendments are not relevant to the current application.
  2. [24]
    The term “organisation” is used in the provisions both before and after the amendment.  That term is defined as “organisation means a body registered under Chapter 12 as an organisation”.
  3. [25]
    The term “lawyer” is also used.  It is not defined in the IR Act.  It is though defined in the Acts Interpretation Act 1954 as follows:

“Lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007”.

  1. [26]
    Sections 5 and 6 of the Legal Profession Act 2007 provide relevantly:

“5  Terms relating to lawyers

  1.  An Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law.
  1.  A local lawyer is a person who is admitted to the legal profession under this Act, whether or not the person is also admitted under a corresponding law.
  1.  An interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act.
  1.  In this section—

this Act includes a previous Act.

6 Terms relating to legal practitioners

  1.  An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.
  1.  A local legal practitioner is an Australian lawyer who holds a current local practising certificate.
  1.  An interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.”
  1. [27]
    Neither NPAQ nor QNurses First Inc. nor any of the other entities in the Red Union Group are registered under Chapter 12 of the IR Act.  They are not “organisations” as defined by the IR Act.  Therefore, none of the legislative safeguards of Chapter 12 apply to them.  There is no control over the rules which govern them,[13] there is no requirement for the democratic election of office bearers, [14] the statutory rules governing membership do not apply, [15] and neither do the statutory rules governing the keeping of records and accounts.[16] Q Nurses First Inc. could not have been contemplated to be an “organisation” for the purposes of the form of notice of appointment of agent signed by Ms Johnson.
  2. [28]
    NPAQ has been held not to be a trade union as that term is understood by the common law.[17]  The same logic would apply to all of the other entities in the Red Union Group.  None are trade unions.
  3. [29]
    On the evidence received in this application, the Red Union Group appears to be a business which delivers services of an industrial nature and generates profits primarily for a Mr Haycroft and a Mr Maguire.[18]
  4. [30]
    Mr Parry, although he does not hold a practising certificate, is an “Australian lawyer” and also an “interstate lawyer”.
  5. [31]
    Section 1102 of the IR Act[19] is a relevant transitional provision.  It provides:

“1102 Existing appointment of agent to represent party or person in proceedings

  1.  This section applies if a party or person appointed an agent under former section 529 to represent the party or person in proceedings and, immediately before the commencement, the proceedings had not ended.
  1.  Former section 529 continues to apply in relation to the appointment of the agent to represent the party or person in the proceedings as if the Industrial Relations and Other Legislation Amendment Act 2022 had not been enacted.
  1.  In this section—

former section 529 means section 529 as in force from time to time before the commencement.”

Mr Parry’s evidence

  1. [32]
    Mr Parry swore an affidavit upon which he was cross-examined by Mr Murdoch KC, who led Dr Brooks for Queensland Health. 
  2. [33]
    In his affidavit, Mr Parry explained that QNurses First Inc. is an incorporated association.[20]  It holds various business names including “Nurses Professional Association of Queensland”[21].  That is the organisation of which Ms Gilbert is president.  Various other business names are held by QNurses First Inc.  These include “Nurses Professional Association of Western Australia”, “Nurses Professional Association of South Australia”, “Nurses Professional Association of Victoria”, “Nurses Professional Association of Australia” and others.
  3. [34]
    Mr Parry explained during his oral evidence that he is the sole director of Polymath Professional Services Pty Ltd (Polymath). 
  4. [35]
    On 26 September 2022, Polymath entered into a contract for services (the Services Contract) with Haycroft and McGuire Associate Services Pty Ltd (HMAS).  Mr Parry guaranteed the obligations of Polymath under the Services Contract.
  5. [36]
    HMAS is defined as “The Principal” under the Services Contract and Polymath is defined as “the Independent Contractor”.  Recitals A and B of the Services Contract provide as follows:
  1. “A.
    The Principal provides services under contract to various client parties including associations and unions of employees, employers and certain industry sector enterprises including NPAA Services Pty Ltd t/a Red Union Support Hub.  The Principal is authorised to utilise certain intellectual property (the Licensed Materials) that it uses to help provide those services.
  1. B.
    The Principal understands that this intellectual property (the Licensed Materials) is owned by Queensland Association Services Group Pty Ltd (QAS Group) and has agreed with QAS Group under a separate Commercial in Confidence licence agreement that any intellectual property which becomes owned by the Principal will be owned by QAS Group (and to the extent that the Principal retains any right in that intellectual property, it is immediately assigned to QAS Group) and QAS Group retains ownership of any and all intellectual property owned by the Principal.”
  1. [37]
    Mr Parry signed another document on 26 September 2022.  That document is entitled “RUSH Non-Disclosure Agreement” (the Non-Disclosure Agrement).  He signed that document as the defined “recipient”.  The company NPAA Services Pty Ltd (NPAA Services) trading as Red Union Support Hub is the defined “discloser”.  Recital A to the Non-Disclosure Agreement is:
  1. “A.
    The discloser provides business services to various client entities and institutions including industry, employer and employee associations and unions.”
  1. [38]
    Reading the recitals of the Services Contract and the recitals of the Non-Disclosure Agreement together, it seems that HMAS provides services to groups including NPAA Services, and NPAA Services provides services on to others.  Notwithstanding that in the Services Contract HMAS says it understands that intellectual property and “the licensed materials” vest with QAS Group, the confidentiality agreement with NPAA Services suggests that there is at least some intellectual property which is owned by NPAA Services.
  2. [39]
    The Services Contract does not identify what services Polymath must provide.  However, the contracts are accompanied by a document styled “Notes on independent contractor’s HMAS document suite”.  That states as follows:

“There are two separate agreements for you to agree to and sign.  Please print the entire suite and return the relevant sections.

  1. 1.
    The Non-disclosure and Non-circumvention Deed with Red Union Support Hub if you haven’t already signed one.
  1. 2.
    The Head Agreement and Intellectual Property Licence Agreement with HMAS (Contract for Services) sets out the basic conditions that will apply to your service to us.  If applicable the directors of your contracting entity will be guaranteeing four aspects of your contract:
  1.  The fact that if you are an employee, then you are an employee of your contracting entity, not an employee of ours.  To that end if requested you will need to send us evidence such as a copy of your employment contract with your contracting entity.
  1.  That the intellectual property belongs to us and not you.  Anything that you develop or help develop for us still belongs to us.
  1.  Any adverse claims against us as a consequence of your termination.
  1.  That you will respect reasonable restraints of trade in that you will not leave us and work for a direct competitor using our confidential information.”
  1. [40]
    The Notes accurately summarise the terms of the Services Contract.
  2. [41]
    The closest the Services Contract comes to identifying the actual services which will be provided by Polymath is by clause 2.3, namely:

“2.3 These conditions shall be the basis of the Agreement to Contract made separately and verbally each calendar month by mutual agreement between the Principal and the Independent Contractor.”

  1. [42]
    On Mr Parry’s evidence, those oral agreements are not made monthly.  The arrangement, which is ongoing, is that Mr Parry holds the position of “Senior Case Manager” with the Red Union Support Hub and that role would include providing legal services and representing employees associated with NPAQ in proceedings before the Commission.
  2. [43]
    Mr Parry delivers monthly invoices to HMAS.  These invoices charge a monthly fee for Mr Parry’s work through Polymath, and a monthly charge for work done by Mr Parry’s wife, also through Polymath.
  3. [44]
    The Red Union Group produces profit through the Red Union Support Hub.  That profit is then distributed, presumably primarily to Mr Haycroft and Mr Maguire, but also to others working within the Red Union structure, including Mr Parry.  The invoices produced by him contain a component for “profit share”.  He also benefited from the “shout out wheel bonus”.  This was explained by Mr Parry as when an employee working in the Red Union Support Hub office achieves something that is appreciated, that person may spin the wheel and win a prize, which can range from a cash bonus through to a holiday away.

Consideration of question 1(ii): can a new notice of agent or an amended notice of agent be filed without compliance with s 529 of the Industrial Relations Act 2016 as amended

  1. [45]
    The “agent” who is nominated in the notice of appointment is QNurses First Inc.  Various submissions were made as to whether an “agent” for the purpose of s 529 (prior to amendment) must be a natural person.  If the answer to that question is in the affirmative, then it follows that there has been no valid nomination and question 1(ii) does not arise.  However, it is unnecessary to determine this issue.
  1. [46]
    Ms Johnson wishes to now, either by amendment or new notice, nominate Mr Parry as her “agent”.  He is not named on the notice of appointment.  The only agent who has been purportedly appointed is QNurses First Inc.[22]
  2. [47]
    Ms Johnson appears to accept those facts but says that on the proper construction of s 1102 of the IR Act, because “an agent” allegedly (QNurses First Inc) was appointed prior to amendment she is free to appoint any agent thereafter, even if the appointment would offend s 529 as amended.  This also raises the first of the further issues.[23]  That submission should be rejected.
  3. [48]
    Section 1102(1) effectively applies s 1102(2) where a party (here Ms Johnson) has “appointed an agent” to represent her and that appointment was made prior to the amendment.  By s 1102(2), s 529 as it appeared before amendment “continues to apply in relation to the appointment of the agent”.  The only sensible construction of s 1102(2) is that “the agent” referred to in s 1102(2) is the agent who was appointed before the amendments and is the agent referred to in s 1102(1).  The obvious purpose[24] of s 1102 is that if an agent has been appointed prior to the amendment then that agent may continue as the agent even though they could not comply with s 529 as amended.
  4. [49]
    Mr Parry is not “the agent” appointed by Ms Johnson by the notice of appointment.  Any appointment of him made now would only be effective if he can comply with s 529, which he cannot.  He is disqualified by s 529(2) as he receives remuneration from the Red Union Support Hub for any work done in support of Ms Johnson’s claim.
  5. [50]
    Ms Gilbert’s purported appointment of Mr Parry is of no effect.  It is the party to this proceeding (Ms Johnson) who must appoint an agent to trigger s 1102(2).
  6. [51]
    The answer to question 1(ii) is “no”.

Question 2: whether Ms Johnson can be represented by Mr Parry in his capacity as a lawyer

  1. [52]
    Ms Johnson’s submission is that:
    1. Industrial Commissioner Dwyer gave leave for her to be “legally represented”;
    2. in the context of s 530, whether as amended or otherwise, that order means that she has leave to be represented by “a lawyer”;
    3. the term “lawyer” in s 530 is defined by the Acts Interpretations Act as an “Australian lawyer” as that term is defined by the Legal Profession Act;
    4. an “Australian lawyer” is one admitted by any State Supreme Court as a lawyer, and a person is an “Australian lawyer” even though they do not hold a practising certificate; and
    5. therefore, Mr Parry is an Australian lawyer and Ms Johnson can be represented by him pursuant to the leave given by Industrial Commissioner Dwyer.
  2. [53]
    There are two contentions made by Ms Johnson within question 2, namely:
    1. Mr Parry is a “lawyer” within the terms of ss 529 and 530 of the IR Act (the first contention); and
    2. Mr Parry can lawfully represent Ms Johnson if she has leave to be represented by a “lawyer” (the second contention).
  3. [54]
    Section 5 of the Legal Profession Act recognises three different categories of “lawyers”.  Section 6 recognises three different categories of “legal practitioners”.  The distinction between “lawyers” and “legal practitioners” is that legal practitioners are lawyers who hold a current practising certificate.
  4. [55]
    Section 530 picks up, by the Acts Interpretation Act, the term “Australian lawyer” not the term “Australian legal practitioner”.
  5. [56]
    Ms Johnson is correct in her submission that Mr Parry is an “Australian lawyer” and is therefore a “lawyer” as mentioned in s 530 of the IR Act.  He is therefore within the category of persons who could be the subject of a grant of leave under s 530(1)(ii) of the IR Act.
  6. [57]
    Ms Johnson is therefore successful on the first contention.
  7. [58]
    Industrial Commissioner Dwyer did not expressly authorise Ms Johnson to be represented by a lawyer.  He authorised her to be “legally represented”.  That could mean represented by a lawyer as defined or could mean represented by a lawyer who can lawfully practice as such.  If we were to hold that a lawyer who does not hold a practising certificate could lawfully represent Ms Johnson in the Commission, we would have referred the matter back to Industrial Commissioner Dwyer for further consideration.  However, for reasons now explained that does not arise.
  8. [59]
    In support of the second contention, Ms Johnson relies on Hillier v Martin (No 8).[25]  There, the Federal Court Rules 2011 (Cth) provided that a corporation “may be represented in the Court by a lawyer”.  The Dictionary to the Rules defined “lawyer” as “a person enrolled as a legal practitioner of a Federal Court or the Supreme Court of a State or Territory”.
  9. [60]
    Unsurprisingly, when faced with such clear and unambiguous text, Chatsworth J concluded that a corporation may be represented by an admitted lawyer and that the lawyer need not hold a practising certificate.  Those words were, as his Honour described “the manifestation of a legislative choice” to include admitted lawyers who do not hold a practising certificate within the definition.
  10. [61]
    Ms Johnson submits that the same choice has been made in s 530 of the IR Act.
  11. [62]
    It is always dangerous to attempt to construe a statute by reference to cases considering different legislation with different text enacted in different circumstances and with different legislative purpose.
  12. [63]
    Chapter 2 of the Legal Profession Act prescribes the requirements for engaging in legal practice in Queensland.  Section 21 is headed “Simplified overview of ch 2”.  It provides:

“21 Simplified overview of ch 2

  1.  Generally, this chapter seeks to achieve the main purposes of this Act by providing that—
  1.  legal practice is engaged in only by persons who are properly qualified and hold a current practising certificate; and
  1.  only persons who are eligible and fit and proper persons for admission to the legal profession are admitted; and
  1.  an Australian lawyer may obtain a local practising certificate from the law society or bar association and become a local legal practitioner; and
  1.  police reports and health assessment reports may be obtained for purposes stated in this Act; and
  1.  the regulation of legal practice on a national basis is promoted by providing for inter-jurisdictional provisions regarding admission to the legal profession and practising certificates; and
  1.  a corporation may engage in legal practice as an incorporated legal practice while it has a legal practitioner director, and a partnership, consisting of at least 1 partner who is not an Australian legal practitioner, may engage in providing legal services in this jurisdiction if there is at least 1 legal practitioner partner; and
  1.  foreign lawyers may practise foreign law in this jurisdiction as a recognised aspect of legal practice in this jurisdiction to encourage and facilitate the internationalisation of legal services and the legal services sector.
  1.  Subsection (1) is intended only as a guide to readers as to the general scheme of this chapter.” (emphasis added)
  1. [64]
    Consistently with those objectives, s 24 relevantly provides:

“24 Prohibition on engaging in legal practice when not entitled

  1.  A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.

Maximum penalty—300 penalty units or 2 years imprisonment.

  1.  Subsection (1) does not apply to engaging in legal practice of the following kinds—
  1.  legal practice engaged in under the authority of a law of this jurisdiction or the Commonwealth;
  1.  legal practice engaged in by an incorporated legal practice under part 2.7;
  1.  the practice of foreign law by an Australian-registered foreign lawyer under part 2.8;
  1.  work performed by a trustee company, or a person employed by a trustee company, in the course of—
  1.  preparing a will; or
  1.  carrying out any other activities involving the administration of trusts, the estate of a living or deceased person or the affairs of a living person;
  1.  legal practice prescribed under a regulation.

…”

  1. [65]
    Mr Parry, while being an Australian lawyer, is not an Australian legal practitioner.  There is no doubt that by representing Ms Johnson, Mr Parry is engaging in legal practice.  He accepted as much under cross-examination by Mr Murdoch KC.  Prima facie Mr Parry would therefore breach s 24(1) of the Legal Profession Act if he represented Ms Johnson in the Commission.
  2. [66]
    However, the legal practice (here rendering legal services to Ms Johnson in her application to the Commission) will not offend s 24(1) of the Legal Profession Act if it is done “under the authority of a law of [Queensland]”.[26]
  3. [67]
    In general, a party to proceedings in a Court or Tribunal may appear by a lawyer.  Section 529(1)(a) prescribes that a person may appear in industrial proceedings by a lawyer only in accordance with s 530.  Section 530 then prescribes the circumstances in which a party may be represented by a lawyer.  Relevantly here, that is where “the Commission gives leave”.[27]  Nothing in either ss 529 or 530 authorises an “Australian lawyer” to provide legal services to a citizen.  Sections 529 and 530 empower the Commission to authorise the citizen (here Ms Johnson) to be represented by an “Australian lawyer.”
  4. [68]
    The Legal Profession Act, as recorded in s 21, sets up a protective regime whereby the standards of practising lawyers are maintained through the granting and regulation of practising certificates.  Only those “Australian lawyers” who hold current practising certificates are “Australian practitioners” and thereby authorised to practise.
  5. [69]
    There is nothing in ss 529 or 530 or elsewhere in either the Legal Profession Act or the IR Act to suggest a legislative intention that a grant of leave to a citizen to be represented by a “Australian lawyer” relieves that lawyer of the requirement to hold a practising certificate when fulfilling a retainer to appear before the Commission.
  6. [70]
    Therefore, Mr Parry may not lawfully represent Ms Johnson in the Commission unless he holds a practising certificate.

Whether the question of legal representation ought to be referred back to Industrial Commissioner Dwyer?

  1. [71]
    We have found that Mr Parry cannot lawfully represent Ms Johnson in the Commission.  It follows that if Ms Johnson wishes to be legally represented, she will have to instruct a legal practitioner, namely a lawyer who holds a practising certificate.  It is not necessary to refer the matter back to Industrial Commissioner Dwyer.

Orders

  1. [72]
    As earlier observed, question 1(i) was not required to be answered.  Costs issues may arise.  However, the question of costs should be dealt with on written submissions if possible. 
  2. [73]
    The orders are:
  1. Question 1: Whether the applicant can be represented by Mr William Parry as agent at the hearing pursuant to a further amended Form 33 Notice of Appointment of Agent to be filed by the applicant and which names Mr Parry as the applicant’s agent?

Answer:  No.

  1. Question 2: Whether the applicant can be represented by Mr William Parry pursuant to a grant of leave to, inter alia, the applicant, to be represented by a “lawyer” pursuant to s 530 of the Industrial Relations Act 2016?

Answer:  No.

  1. Further question 1:  On the construction of s 1102 of the Industrial Relations Act 2016, in particular whether s 1102 is enlivened to authorise representation by an agent not identified by s 1102(1)?

Answer:  No.

  1. Further question 2:  Whether, if Mr Parry is a person who has been appointed as a lawyer pursuant to the order of Industrial Commissioner Dwyer, that order should be remitted to Industrial Commissioner Dwyer for further consideration?

Answer:  Given that Mr Parry cannot lawfully represent Ms Johnson before the Commission there is no need to consider this issue.

  1. By 4:00pm on 16 May 2024 the parties exchange written submissions on the question of costs.
  2. Both parties have leave to file and serve, by 4.00pm on 23 May                                           2024 an application for leave to make oral submissions on the question of costs.
  3. In the absence of any application being filed before 4.00pm on 23 May 2024 the question of costs will be determined on the written submissions without further oral argument.

Footnotes

[1]Health Employment Directive 12/21 Covid-19 Vaccinations.

[2] Industrial Relations Act 2016, Chapter 8 Part 2 Division 2.

[3]Form 33.

[4]Telephone numbers have been redacted for privacy reasons.

[5]The correspondence is faithfully reproduced notwithstanding the appearance of obvious errors.

[6] Industrial Relations Act 2016, ss 529, 530, 530A.

[7]Importantly here, s 1102.

[8]Which is intended to cover all levels of professional misconduct as defined in ss 68, 69, 70 of the Legal Practitioners Act 1981 (SA).

[9]Actually filed on 20 June 2022.

[10]IR Act current as at 15 September 2022.

[11]Legislative examples omitted.

[12]IR Act current as at 3 November 2022.

[13]Chapter 12, Part 3.

[14]Chapter 12, Part 4, Part 7, Part 8, Part 9.

[15]Chapter 12, Part 10.

[16]Chapter 12, Part 11.

[17] Gilbert v Metro North Health and Hospital Service (No 2) [2023] ICQ 20 at [129] – [175].

[18]See paragraphs [33]-[44] of these reasons.

[19]IR Act current as at 1 February 2024.

[20] Associations Incorporation Act 1981.

[21]Which, in these reasons is “NPAQ”.

[22]See paragraph [8] of these reasons.

[23]See paragraph [19] of these reasons.

[24] R v A2 (2019) 269 CLR 507.

[25](2021) 155 ACSR 395.

[26] Legal Profession Act 2007, s 24(2)(a).

[27] Industrial Relations Act 2016, s 530(1)(a)(ii).

Close

Editorial Notes

  • Published Case Name:

    Johnson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Johnson v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 102

  • Court:

    QIRC

  • Judge(s):

    Davis J, President, O'Connor, Vice President, Pidgeon, Industrial Commissioner

  • Date:

    02 May 2024

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
Gilbert v Metro North Health and Hospital Service (No. 2) [2023] ICQ 20
2 citations
Jump To
Cite 1 - [2023] ICQ 20
Cite 2 - [2023] ICQ 20
Hillier v Martin (No 8) (2021) 155 ACSR 395
2 citations
Jump To
Cite 1 - (2021) 155 ACSR 395
Cite 2 - (2021) 155 ACSR 395
Hillier v Martin (No 8) [2021] FCA 1272
1 citation
Jump To
Cite 1 - [2021] FCA 1272
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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