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  4. Mullins v Jacjas Real Estate Pty Ltd & Ors - [2024] QIRC 142

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Mullins v Jacjas Real Estate Pty Ltd & Ors[2024] QIRC 142

Mullins v Jacjas Real Estate Pty Ltd & Ors[2024] QIRC 142

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mullins v Jacjas Real Estate Pty Ltd & Ors [2024] QIRC 142

PARTIES:

Mullins, Katie

Applicant

v

Jacjas Real Estate Pty Ltd

First Respondent

&

Jacqui Read

Second Respondent

&

Jason Read

Third Respondent

CASE NO:

AD/2023/115

PROCEEDING:

Application to be represented by an unpaid agent

DELIVERED ON:

4 June 2024

MEMBER:

Pratt IC

HEARD AT:

On the papers

ORDER:

  1. 1.The Application is granted.
  2. 2.The Applicant may be represented by Mr Heffernan in these proceedings on a pro bono basis.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR LEAVE FOR RESPONDENT TO BE REPRESENTED BY AN UNPAID AGENT – where applicant previously granted leave to be represented by a lawyer – where lawyer formerly representing applicant no longer able to represent applicant – where applicant cannot afford replacement legal representation – where applicant made an application to be represented by an unpaid agent – consideration of section 529 of the Industrial Relations Act 2016 (Qld) and relevant legal principles – where applicant submits that no issue created by unpaid agent's lack of legal qualifications – where applicant submits that it would be unfair to represent herself against respondent who has legal representation – where applicant submits that matter is complex – where applicant submits they have no other reasonably available options for representation – where applicant and unpaid agent both say the unpaid agent not directly or indirectly receiving or demanding fee – where respondent submits that unpaid agent has indirectly received a fee – where respondent submits the proceedings would not be dealt with more efficiently by the presence of the unpaid agent – whether there was payment of fees between the applicant and the unpaid agent – held that the applicant is not seeking leave to be represented by a person who directly or indirectly demands or receives a fee for representing the applicant in the proceedings – whether matters would proceed more efficiently with unpaid agent – held matter would proceed more efficiently with unpaid agent – whether fairness dictates that applicant should be represented by an unpaid agent – held that fairness dictates that applicant should be represented by an unpaid agent – application granted.

LEGISLATION & OTHER

MATERIALS:

Industrial Relations Act 2016 (Qld) s 529, 530.

Industrial Relations and Other Legislation Amendment Bill 2022

CASES:

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

Reasons for Decision

  1. [1]
    Ms Katie Mullins ('the Applicant') seeks leave to be represented by an unpaid agent pursuant to s 529(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') ('the Application'). This representation would be for proceedings for a claim of unlawful discrimination made pursuant to the Anti-Discrimination Act 1991 ('AD Act').
  1. [2]
    The Applicant was previously granted leave to be represented by a lawyer in these proceedings, as was the Respondent. However, the Applicant's lawyer, Mr Dryley-Collins, suffered a debilitating health condition that meant he could no longer continue to represent the Applicant. Consequently, the Applicant is left in the troubled position of being without legal representation. And to add to her troubles, the Applicant can no longer afford other legal representation. The Applicant now applies for leave for Mr Miles Heffernan, an industrial relations consultant who is not a lawyer as defined in the IR Act, to represent her in these proceedings on an unpaid basis.

Relevant law

Legislation around leave to appear as an agent

  1. [3]
    Section 529(1)(e) of the IR Act says:
  1. (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. (e)
    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. [4]
    Section 529(2) of the IR Act says:
  1. (2)
    However, a party or person may not be represented under subsection (1) (e) by a person who—
  1. (a)
    directly or indirectly demands or receives a fee for representing the party or person; or
  1. (c)
    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. [5]
    Section 529(3) of the IR Act says:
  1. (3)
    The industrial tribunal may give leave under subsection (1) (e) only if—
  1. (a)
    giving leave 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.

Legal principles

  1. [6]
    The plain meaning of the words used in a statute is the starting point for any exercise in construing statutes. Consideration of the context and purpose of the statute should occur at the same time. The plurality in SZTAL v Minister for Immigration and Border Protection[1] said it this way:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  1. [7]
    The purpose of s 529 is clear from the explanatory materials for the Industrial Relations and Other Legislation Amendment Bill 2022 ('the Bill'). The 23 June 2022 Explanatory Note for the original Bill says that a primary purpose of the Bill was to:

ensure that employees’ and employers’ industrial interests are effectively represented by entities subject to regulation under the IR Act, rather than unregulated entities who are not required to fulfil the high level of governance duties under the IR Act.[2]

  1. [8]
    However, the original version of the Bill did not actually amend s 529 of the IR Act. The 31 October 2022 Explanatory Note for the 3rd Reading of the Bill notes that these amendments came at a later stage. That Explanatory Note, mostly restating the wording of s 529, says:

Clause 52A also amends section 529 to include the conditions an industrial tribunal may consider before granting leave to agents seeking to represent parties. Persons who charge fees, or an officer acting for an entity that is not an organisation but purports to represent the industrial interests of employees or employers, are excluded from appearing as an agent. Leave may be granted for an agent only if it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, or it would be unfair not to allow the party to be represented.[3]

  1. [9]
    In assessing applications under s 529(2), establishing whether the proposed representative demands or receives, directly or indirectly, a fee for representing the party in the proceedings is the first step. If the proposed agent does receive a fee for representing the party or person in the proceeding, leave cannot be granted. Whether the proposed agent receives a fee for representing the party or person in the proceeding is a question of fact. Establishing that fact will usually require the party to put on evidence. If the Commission is satisfied that an applicant is not seeking leave to be represented by a person who directly or indirectly demands or receives a fee for representing the party or person in the proceedings, the focus turns to s 529(3).
  1. [10]
    The wording of s 529(3) mirrors the wording of s 530(4), which is about legal representation. Despite being facsimiles, ss 529(3) and 530(4) appear in different statutory contexts. They deal with two different classes of representatives – the general class of unpaid agents and the specific class of lawyers. Each of the two provisions contains the same three considerations, however. The first dealing with efficiency having regard to the complexity of the matter. The second and third dealing with fairness if the applicant cannot represent themself and fairness as between the parties respectively.
  1. [11]
    Under the efficiency consideration, the test is created by the wording of the relevant provision. As I have noted above, the wording of the general unpaid agent efficiency test in s 529(3)(a) is virtually identical to that concerning lawyers in s 530(4)(a). The contextual difference of each test needs to be borne in mind, however. Whilst the same wording is used, Parliament has seen fit to create a different class of potential representatives in s 529(3) than those being considered under 530(4). There will be different circumstances that will need to be weighed up in each case. Whether it be considering what efficiency the proposed lawyer might bring to a case, or an unpaid lay representative, each requires regard to be had to the complexity of the matter. But each comes back to the key consideration of whether the proposed representative would enable the proceedings to be dealt with more efficiently in the Commission's view.
  1. [12]
    The Commission might form the view that a skilled lawyer, for example, will assist in the matter being dealt with more efficiently. Equally, however, the Commission may form the view that a particular party will likely present their case more effectively through the proposed unpaid agent, and that allowing leave to do so will enable the proceedings to be dealt with more efficiently. Each case will turn on its own facts.
  1. [13]
    It is important to note that not all three considerations contained within s 529(3) need to be satisfied before the discretion to grant leave is enlivened. One will do. So even if the Commission forms the view that a proposed representative may not enable the proceedings to be dealt with more efficiently, either one of the other two (fairness) considerations in s 529(3) may enliven the discretion. In exercising that discretion, the Commission will be guided, as it always is in decisions of this nature, by equity, good conscience and the substantial merits of the case, having regard to the interests of the persons immediately concerned and the community as a whole.[4]

Submissions

  1. [14]
    I issued directions on 11 April 2024 after a mention of this matter requiring both parties to file and serve submissions on whether the Applicant's application to be represented by Mr Heffernan should be granted.

Applicant's submissions

  1. [15]
    The Applicant submits that Mr Heffernan "will not request or accept any payment for his services." Accordingly, the submission is that this is not an application for leave to be represented by a person who demands or receives, directly or indirectly, a fee for representing the Applicant in these proceedings.
  1. [16]
    The Applicant also submits that Mr Heffernan is a competent representative who has been an advocate in matters heard by the Commission, and so will assist with the matter being dealt with more efficiently due to bringing that skill to the proceedings. The submission is that the matter is complex based on evidence from Mr Heffernan that the AD Act is a "difficult beast to master".
  1. [17]
    The Applicant's further submits that there is no affront to the public interest with Mr Heffernan representing her - that s 529 expressly contemplates allowing representation by lay advocates so long as the relevant requirements are met.
  1. [18]
    Finally, the Applicant submits that there are strong reasons based on fairness as to why Mr Heffernan should be allowed to represent her:
  1. 1.
    the Applicant would otherwise have to represent herself against a Respondent who has legal representation;
  2. 2.
    the matter involves the application of complex legal principles; and
  3. 3.
    the Applicant has no other reasonably available options for representation.

Respondent's submissions

  1. [19]
    The Respondent notes that both the Applicant and the Respondent have previously been given leave to be represented by a lawyer under s 530(1)(c). The Respondent consequently accepts that the Commission determined that neither the Applicant nor the Respondent are able to effectively represent their own interests and so should be represented having regard to fairness between the parties. On that basis, the Respondent accepts that two of three jurisdictional issues have been met.
  1. [20]
    However, the Respondent submits that Mr Heffernan has already indirectly received a fee for the proposed services in this matter. In support of this submission, the Respondent points to the fact that Mr Heffernan was, at the relevant time, a shareholder of both Supportah Australia Pty Ltd and Industrial Advocates Australia Pty Ltd, two industrial relations advocacy firms that the Applicant engaged one of for the purposes of running these proceedings. The Respondent submits that Mr Heffernan thereby has, at least indirectly, received a fee.
  1. [21]
    The Respondent also submits that the arrangements for payment between the Applicant and either of the two firms "are, to put it mildly, opaque and are not directly addressed" by the Applicant. The Respondent notes how there were arrangements for payment between Industrial Advocates Australia Pty Ltd and the Applicant's former solicitor.
  1. [22]
    The Respondent then submits that Industrial Advocates Australia Pty Ltd is incapable of representing the Applicant in these proceedings because they are a paid agent.
  1. [23]
    The Respondent makes a number of submissions going to whether there was a clear break between advocates and lawyers, and notes that it is telling that:
  1. a.
    Mr Heffernan knew of Mr Dryley-Collins' absences from work & the reasons for those absences;
  2. b.
    Mr Dryley-Collins gave notice to Industrial Advocates Australia;
  3. c.
    Mr Walton's response to this notice was not to contact the clients but rather to contact Mr Heffernan;
  4. d.
    Mr Heffernan saw it as his role to talk to Mr Dryley-Collins about how Mr Walton was going to manage the transition.
  1. [24]
    The Respondent also submits that the Commission should conclude that Mr Heffernan's representation of the Applicant is part of the normal practice of Supportah Australia Pty Ltd. That submission is based on the fact that the relevant disclosure notice that was put into evidence reveals that it is normal business practice for licensees to volunteer to perform work for other licensees.
  1. [25]
    The Respondent also submits that it is readily apparent that Mr Heffernan is acting on the instructions of a representative from Industrial Advocates Australia Pty Ltd. It submits that Mr Heffernan was acting on instructions from the former solicitor that were obtained in March 2024, which was before Mr Heffernan obtained any instructions from the Applicant.
  1. [26]
    The Respondent submits that altogether the Applicant has already engaged Industrial Advocates Australia Pty Ltd as a paid agent for representation in the proceedings and that Mr Heffernan is seeking to appear at the request of that paid agent. The Respondent submits that, in circumstances where that paid agent is incapable of representing the Applicant, the application "is a colourable attempt to circumvent" s 529(2).
  1. [27]
    As to the efficiency consideration, the Respondent submits that Mr Heffernan is not bound by the high standards of competency and conduct that lawyers are bound by. The Respondent also points out that, even in these interlocutory proceedings, Mr Heffernan has been unable to confine himself to the relevant matters. In support of these submissions, the Respondent points to the discursive and prolix nature of affidavit evidence filed by Mr Heffernan that went beyond his own professional history and into "his relationships with people and matters entirely unconnected with the present proceedings", which included "numerous gratuitous references to his dog" and a brief sojourn into "his desire to live in Romania." The Respondent submits that Mr Heffernan's:

failure to confine his affidavit to [relevant matters] gives rise to a real apprehension that any representation by Mr Heffernan will be detrimental to the efficient conduct of the proceedings and will not be confined to the relevant and real issues in the proceedings.

  1. [28]
    The Respondent concludes that, for the reasons outlined above, the Commission should find that Mr Heffernan is a paid agent or, if the Commission finds that Mr Heffernan is not a paid agent, it should refuse the Application because:
  1. a.
    giving leave to Mr Heffernan would not enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;
  2. b.
    Mr Heffernan is acting at the request of Industrial Advocates Australia, a paid agent that is prohibited from representing the [Applicant]; and
  3. c.
    Mr Heffernan is volunteering as part of a business practice that is a colourable attempt to avoid the prohibition on paid agents.

16 May 2024 Directions Order

  1. [29]
    I also issued directions on 16 May 2024 requiring the Applicant, who is the Complainant in the substantive proceedings, to answer, in an affidavit, 'yes' or 'no' to the following questions:
  1. a.
    Is Mr Heffernan directly demanding a fee for representing the Complainant?
  2. b.
    Is Mr Heffernan indirectly demanding a fee for representing the Complainant?
  3. c.
    Is Mr Heffernan directly receiving a fee for representing the Complainant?
  4. d.
    Is Mr Heffernan indirectly receiving a fee for representing the Complainant?
  5. e.
    Is the Complainant paying any fee to any person or entity for services in relation to these proceedings?
  1. [30]
    The Applicant complied with those orders. The answer to each of those questions was 'no' in the Applicant's affidavit. Mr Heffernan to also put on affidavit evidence responding to the same questions, although pertaining to him personally. Mr Heffernan, in his affidavit, also answered 'no' to all of the questions.

Consideration

  1. [31]
    I have considered all materials from both the Applicant and the Respondent. In delivering my reasons below, I have only referred to the relevant materials.

Payment of fees

  1. [32]
    The Respondent contends that I must refuse leave as Mr Heffernan has likely already indirectly been paid a fee for his services in representing the Applicant in these proceedings. This indirect fee, the Respondent submits, comes from Mr Heffernan's association with the entity that previously had financial ties with the lawyer acting for the Applicant.
  1. [33]
    I am sympathetic to the Respondent's submission that the Applicant's and Mr Heffernan's affidavit and submissions about the fee arrangement is not as clear as one might hope. The Applicant's carefully worded affidavits and submissions has placed the arrangement between the Applicant, Mr Heffernan and the two industrial advocacy firms behind frosted glass. Nonetheless, the affidavit evidence filed by both the Applicant and Mr Heffernan allows me to see that arrangement clearly enough to be satisfied from the evidence that Mr Heffernan is not, either directly or indirectly, receiving or demanding any fee for representing the Applicant in these proceedings. I am also satisfied that the Applicant is not paying any fee to any person or entity for representation in these proceedings.
  1. [34]
    But what of any fee that the Applicant previously paid to an entity, of which Mr Heffernan was a shareholder at the relevant time? The Respondent's argument is that such a payment in the past still counts and therefore Mr Heffernan cannot appear. For the following reasons, I do not accept that submission.
  1. [35]
    On my assessment, any past payment the Applicant made to the solicitor and his firm was not a payment for Mr Heffernan to represent the Applicant in the proceedings. At all times prior to this application, a lawyer was engaged by the Applicant as her representative in the proceedings. That lawyer acted as such, having been granted leave to do so. I do not accept that at the time the Applicant entered into any such arrangement, she was paying a fee, even indirectly, to Mr Heffernan for Mr Heffernan to represent her in the proceedings.
  1. [36]
    I am therefore satisfied that the Applicant is not seeking to be represented by a person who directly or indirectly demands or receives a fee for representing the Applicant in the proceedings. It falls to the Commission to then deal with the three abovementioned considerations within s 529(3) to see if the discretion is enlivened.

Efficiency

  1. [37]
    Ms Mullins argues that Mr Heffernan is an experienced industrial relations advocate who has expertise in the process of the Commission that she does not possess. The Applicant's submission is that, having regard to the complexity of the matter, the matter would be more efficiently dealt with if Mr Heffernan were to represent the Applicant than if she ran the matter by herself.
  1. [38]
    The Respondent argues that that experience does not equate to efficiency. Indeed, the Respondent points to florid, voluminous, and largely irrelevant materials filed by Mr Heffernan. The Respondent contends that this conduct contradicts submissions that Mr Heffernan will aid in the matter being dealt with more efficiently than if the Applicant was to run the matter by herself. There is some force to those submissions. Mr Heffernan's materials filed in this application were indeed voluminous. Much of that material was irrelevant to this issue. Mr Heffernan submitted that the material covered a large body of background information which was presented in the interests of full transparency.
  1. [39]
    I do not consider this matter to be a particularly complex one. It has been made to appear unnecessarily complex due to a proliferation of alleged unlawful reasons for alleged instances of unfavourable treatment. But the statements of facts and contentions I am referring to were not prepared by Mr Heffernan. And during the hearing of this application, Mr Heffernan gave very clear undertakings to the Commission as to efficiency on this issue. That included a concession as to the benefits of narrowing the issues to be litigated, subject of course to the Respondent's view on such an endeavour and the Commission's supervision of such potential recasting of the issues.
  1. [40]
    Whilst I have reservations, I expect that there should be greater efficiency with Mr Heffernan representing the Applicant in these proceedings as compared to the Applicant running the matter by herself. Whilst not a particularly complex central allegation, the case has been made so by being obscured in the notice of facts and contentions under a multitude of alternative attributes, which are not clearly stated to be the basis for the alleged contraventions of the AD Act. Mr Heffernan has undertaken to clarify the case to be heard and that will assist with efficiently dealing with the matter in my opinion. On that basis, I find that the consideration at s 529(3)(a) is made out.

Fairness

  1. [41]
    However, even if it turns out that I am wrong about the efficiency consideration, the two fairness elements within ss 529(3)(b) and (c) loom large. The first fairness consideration, at s 529(3)(b), is whether it would be unfair not to allow the Applicant to be represented by Mr Heffernan because she is unable to represent herself. The Applicant does not have any experience or training in adversarial proceedings of this nature. I accept that the Applicant would struggle to be able to represent herself. Even if she were able to adduce her own evidence in chief, she will not be able to prepare re-examination questions for herself whilst she is being cross-examined. As well, the outcome of this matter will very much turn on findings of contested facts. Cross-examination of the Respondent's witnesses is something the Applicant needs to be able to do in order to represent herself in the matter. I am satisfied that this is something that the Applicant is unable to do. Accordingly, I find that it would be unfair not to allow the Applicant to be represented by Mr Heffernan on a pro bono basis because the Applicant is unable to represent herself in the matter. It follows that the consideration at s 529(3)(b) is made out.
  1. [42]
    The second fairness consideration within s 529(3)(c) goes to fairness as between the parties. In this case, as I have mentioned above, the Respondent employer is represented by solicitors who have briefed counsel. The Applicant's unchallenged evidence is that she has no way of engaging another lawyer, which I accept. The Commission has already granted the Applicant leave to be represented by a lawyer in these proceedings. Granting the leave that is now sought would avail the Applicant of free representation by an experienced industrial relations practitioner. Having regard to the Respondent's position, which I must when weighing up the consideration of fairness as between the parties, I find that it would be unfair to the Applicant to refuse her application for representation. On that basis I conclude that the consideration at s 529(3)(c) is also made out.

Conclusion

  1. [43]
    I conclude that the Applicant is not applying to be represented by a person who directly or indirectly demands or receives a fee for representing her in these proceedings. I have some reservations that greater efficiency in dealing with this matter will result from granting this application, although I expect there to be such efficiency as has been promised. Even so, I find it a compelling conclusion that it would be unfair to the Applicant not to grant her application to be represented by Mr Heffernan on a pro bono basis.
  1. [44]
    On that basis, I conclude that the discretion within s 529(3) is enlivened. Having regard to the facts of this case, I am of the view that it is appropriate in this instance to exercise the discretion in favour of granting the application. I order accordingly.

Orders

  1. 1.
    The Application is granted.
  2. 2.
    The Applicant may be represented by Mr Heffernan in these proceedings on a pro bono basis.

Footnotes

[1][2017] HCA 34, [14] (Kiefel CJ, Nettle and Gordon JJ).

[2]Explanatory Notes, Introduction, Industrial Relations and Other Legislation Amendment Bill 2022 (Qld) 4.

[3]Explanatory Notes, 3rd Reading, Industrial Relations and Other Legislation Amendment Bill 2022 (Qld) 6.

[4]IR Act (n _) s 531(3)

Close

Editorial Notes

  • Published Case Name:

    Mullins v Jacjas Real Estate Pty Ltd & Ors

  • Shortened Case Name:

    Mullins v Jacjas Real Estate Pty Ltd & Ors

  • MNC:

    [2024] QIRC 142

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    04 Jun 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
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
1 citation
Jump To
Cite 1 - (2017) HCA 34

Cases Citing

Case NameFull CitationFrequency
Kempster v JGI Property Group Pty Limited [2024] QIRC 1512 citations
1

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