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Rolph v State of Queensland (Department of Energy and Public Works)[2024] QIRC 188

Rolph v State of Queensland (Department of Energy and Public Works)[2024] QIRC 188

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rolph v State of Queensland (Department of Energy and Public Works) [2024] QIRC 188

PARTIES:

Rolph, Megan

(Complainant)

v

State of Queensland (Department of Energy and Public Works)

(Respondent)

CASE NO:

AD/2023/58

PROCEEDING:

Application for legal representation

DELIVERED ON:

31 July 2024

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS:

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – APPLICATION FOR LEAVE TO BE REPRESENTED BY A LAWYER – Complainant employed by the Respondent as AO3 Business Support Officer and undertook a temporary secondment as AO5 Executive Officer – Complainant made a complaint to the Queensland Human Rights Commission alleging she had been the subject of unlawful direct and indirect discrimination in contravention of the Anti-Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – Respondent made application for legal representation – where Respondent has applied for leave to be legally represented under s 530 Industrial Relations Act 2016 (Qld) – where Applicant opposes application – factors to be considered by the Commission in deciding whether to allow legal representation – circumstances of the case – leave granted for legal representation

LEGISLATION AND INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) ss 10, 11, 24

Human Rights Act 2019 (Qld) s 25

Industrial Relations Act 2016 (Qld) ss 3, 529, 530

Industrial Relations (Tribunals) Rules 2011 (Qld)

Bar Association of Queensland, Barristers' Conduct Rules (at 23 February 2018) r 25

CASES:

Applicant v Respondent [2014] FWC 2860

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Fitzgerald v Woolworths Ltd (2017) 270 IR 128

Giannarelli v Wraith (1988) 165 CLR 543

McKinnon v Barron & Anor [2012] QCAT 169

NOM v DPP (2012) 38 VR 618

Peck v Workers' Compensation Regulator [2022] QIRC 189

Pierres v Andrew Herzfeld Pty Ltd [2000] QIRC 11

R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20

R v Workers’ Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563

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

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

Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2018] QIRC 133

Warrell v Walton (2013) 233 IR 335

Reasons for Decision

  1. [1]
    On 23 June 2023, the Queensland Human Rights Commission referred the matter of Ms Megan Rolph and the State of Queensland (Department of Energy and Public Works) ('the Department') to the Queensland Industrial Relations Commission ('the Complaint').[1]
  2. [2]
    Within the Complaint, Ms Rolph alleges direct and indirect discrimination in contravention of the Anti-Discrimination Act 1991 ('the AD Act') on the basis of impairment. Ms Rolph also raises allegations of a contravention of s 25 of the Human Rights Act 2019 ('the HR Act') in addition to various breaches of the Fair Work Act 2009, Work Health and Safety Act 2011, Public Service Act 2008, Industrial Relations Act 2016 ('the IR Act'), and the Crime and Corruption Act 2001, by the Department.
  3. [3]
    On 26 September 2023, the Department filed an Application for leave to be represented by a lawyer, specifically leave to be represented by legal Counsel.
  4. [4]
    Approximately six months later, Ms Rolph now objects to the Department's application for leave to be legally represented by legal Counsel instructed by Crown Law.
  5. [5]
    It is well established that a lawyer working at Crown Law is an employee of the State of Queensland and, therefore, is entitled to appear for the State as of right in which the State of Queensland is a party.[2]
  6. [6]
    The issue for determination is whether leave should be granted for the Department to be legally represented by private Counsel in the proceedings.

The Legislative Scheme and Principles

  1. [7]
    Section 529 of the IR Act contains provisions dealing with the representation of parties generally, namely:

529 Representation of parties generally

  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. (a)
    a lawyer, only in accordance with section 530; or
  1. (b)
    an employee or officer of an organisation appointed in writing as the agent of the party or person; or
  1. (c)
    if the party or person is an organisation—an employee, officer or member of the organisation; or
  1. (d)
    if the party or person is an employer—an employee or officer of the employer; or
  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)
    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.[3]
  1. [8]
    Section 530 of the IR Act relevantly provides:

530 Legal representation

  1. (1)
    A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—

...

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

...

  1. (4)
    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.[4]

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. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person;...
  1. [9]
    The construction of s 530(4)(a) of the IR Act and the circumstances in which a party may be granted leave to be represented in proceedings by a lawyer in this Commission were helpfully considered by Deputy President Merrell in State of Queensland (Queensland Health) v Hume ('Hume'),[5] when his Honour observed:

[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.'

...

[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.[6]

  1. [10]
    Similarly, in State of Queensland (Department of Premier and Cabinet) v Dawson ('Dawson'),[7] His Honour, Vice President O'Connor, identified several instructive authorities in respect of the legal representation and the efficient conduct of litigation, noting:

[22] The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v, where Deputy President Sams wrote:

[18] Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner's professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 :

[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

[19] More recently, a Full Bench of the Commission in E. Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174 said at para [48]:

A lawyer's duty to the Commission is paramount and supercedes a lawyer's duties to their client. A grant of permission to appear pursuant to s 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].

 [20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission's powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

[13]In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.[8]

Submissions

  1. [11]
    Crown Law argues that the Complaint filed by Ms Rolph raises many complex questions of both fact and law.
  2. [12]
    Within its submissions, it is argued the parties and the Commission would be enabled and assisted to deal with the proceedings more efficiently with the assistance of private Counsel.
  3. [13]
    The arguments relied on by Crown Law as they relate to questions of fact and the complexity of the matter include:
  • The numerous factual circumstances in relation to the allegations raised by Ms Rolph, which will be the subject of witness evidence;[9]
  • Counsel will assist in keeping the parties on track and narrowing the issues in circumstances where Crown Law maintains Ms Rolph's existing Contentions contain irrelevant allegations;[10]
  • The Complaint will require a detailed examination of the evidence which will involve an examination of the actions of the Complainant and the Respondent, along with a detailed cross-examination of the parties' witnesses;[11]
  • Counsel will ensure evidence is presented with care and precision and that only those matters relevant to the facts are presented to the Commission.[12]
  1. [14]
    The primary focus of Crown Law's submissions in relation to complexity and questions of law is directed towards the complicated nature of the AD Act and the benefit to the parties and the Commission of having the presence of private Counsel, who will assist in the application of complex legal principles, therefore enabling the proceedings to be dealt with more efficiently.[13]
  2. [15]
    Crown Law further submits that Ms Rolph's existing complaint alleges a breach of her human rights in contravention of the HR Act under s 25, again observing the Commission and the parties would benefit from the presence of private Counsel in the proceedings given the technical nature of the HR Act and associated legal principles.[14]
  3. [16]
    Ms Rolph's objections to the Department being granted leave to be represented by legal Counsel are set out below:
  1. The Commission did not give leave for Counsel to attend the conciliation conference held on 20 November 2023 prior to its commencement.
  2. The Complaint is not complex.
  3. Counsel has not participated in fair negotiations nor complied with the model litigant principles.
  4. A recent application filed by Ms Rolph will result in a simplification of the existing claim and negate any need for Counsel to 'keep the parties' on track.[15]
  1. [17]
    As best I understand Ms Rolph's submissions, she also objects to Counsel representing the Department in the proceedings for the reason that it has incorrectly identified the period within which the alleged discrimination, which forms the basis of the Complaint, took place.[16] That is, Ms Rolph is now asserting that the events which form the basis of the impairment discrimination allegations took place from July 2020 to October 2022, rather than the period relied on by Crown Law.
  2. [18]
    Within her submissions, Ms Rolph asserts she did not originally file an objection to the Department's request for leave to be represented by private counsel because she was not aware of the process regarding applications for legal representation and did not believe it was necessary, having regard to earlier correspondence she had received from the Industrial Registry.[17]
  3. [19]
    In any event, Ms Rolph maintains Crown Law failed to file an application for leave to be represented by private Counsel within the time frame provided in the original Directions Order issued by the Commission.[18]
  4. [20]
    In response, the Department contends that either party can bring an application for legal representation at any time of the proceedings up until the hearing.[19]
  5. [21]
    Although, Ms Rolph acknowledges that she agreed to Counsel being present during a conciliation conference held in late 2023, she maintains she did not understand at the time that she could object to Counsel's involvement.[20]
  6. [22]
    Ms Rolph confirms that it was not until she became aware the Department had filed an application in existing proceedings in March 2024 to strike out the Complaint, that she took steps to object to Counsel's involvement in the proceedings.[21] Within her submissions, Ms Rolph confirms an intention to amend her current Complaint to remove irrelevant allegations. With this in mind, Ms Rolph summarises the remaining elements of the claim she now wishes to pursue in the following way:

…impairment discrimination in the area of work under s 7(h), 10,11,15 of the Anti-Discrimination Act 1991 (AD Act) and right to recognition and equality before the law under s 15 of the Human Rights Act 2019 (HR Act).

  1. [23]
    Ms Rolph further relies on a separate application she has recently filed,[22] which seeks to include out-of-time allegations within her substantive Complaint,[23] observing that "the only issue in dispute for this claim is discrimination."[24]
  2. [24]
    In response, Crown Law maintains Ms Rolph has merely added to the complexity of the Complaint, as she now seeks to include out-of-time allegations that include claims of sexual harassment and victimisation,[25] which were not accepted by the Queensland Human Rights Commission and did not form part of the Complaint referred to the Commission.[26]
  3. [25]
    In any event, Crown Law observes that the Department has since filed an application in existing proceedings to strike out part of Ms Rolph's Complaint, further increasing the complexity of the proceedings,[27] and that Ms Rolph has not yet sought leave to amend the previously Amended Statement of Facts and Contentions, whether that be to remove existing allegations or include others.[28]
  4. [26]
    As for Ms Rolph's submissions in respect to fairness, she relies on discussions that occurred between herself and representatives of the Department during a conciliation conference held by Industrial Commissioner Pidgeon.[29] I will not descend into any detail about these submissions or the discussions around the time of the conciliation, except to observe that Ms Rolph does not accept the Department has acted in accordance with the model litigant principles during this period.[30]
  5. [27]
    Ms Rolph further submits the Department is incurring unnecessary costs and maintains the Complaint could have been resolved during the conference had it conducted itself in a more reasonable manner.[31]
  6. [28]
    In response, Crown Law submits Ms Rolph's submissions about any such discussions are matters subject to privilege and have been included without consent, but in any event, it disputes the accuracy of Ms Rolph's recollection of events.[32]
  7. [29]
    Ms Rolph concludes her submissions by arguing the Department can be effectively represented by internal department legal officers, employee relations officers or Crown Law, and therefore, the use of Counsel is not required.[33]

Should the Department be granted leave to be legally represented by Counsel?

Efficiency and Complexity

  1. [30]
    The Commission must consider whether 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.[34]
  2. [31]
    In determining whether a matter is complex, regard need not be had to conducting a comparison with other proceedings, but rather, the Commission should have regard to the complexity of the issues being determined.[35]
  3. [32]
    Crown Law submits the Complaint filed by Ms Rolph raises many complex questions of fact and law, arguing the Commission and the parties could deal with the proceedings more efficiently with the assistance of private Counsel.
  4. [33]
    Conversely, Ms Rolph maintains her complaint is not complex. For the reasons set out below, I disagree.
  5. [34]
    Firstly, the existing Complaint encompasses several allegations related to impairment discrimination and, subject to the outcome of separate  proceedings foreshadowed by Ms Rolph, additional allegations of sexual harassment and victimisation.
  6. [35]
    I accept, even in the event the claim is narrowed to exclude alleged breaches of the Fair Work Act 2009, Work Health and Safety Act 2011, Public Service Act 2008, Industrial Relations Act 2016, and the Crime and Corruption Act 2001, that the proceedings will require a detailed analysis of evidence which will encompass examination and cross-examination of the witnesses.
  7. [36]
    As observed by Merrell DP in Peck v Workers' Compensation Regulator:[36]

... The forensic skills of private counsel include concisely identifying the relevant issues for the determination of disputed matters in a proceeding, to lead only relevant evidence about such matters and to cross-examine witnesses only on relevant matters so as to permit the Commission to efficiently determine the ultimate question that needs to be determined. In addition, counsel can significantly reduce the time for the hearing of an appeal by addressing their client’s submissions only to relevant matters, by concisely summarising the evidence and the law and by efficiently assisting the Commission to determine the issue in contention.[37]

  1. [37]
    I am of the view that the involvement of private Counsel in this matter will potentially go some way in ensuring the Department does not deal with unnecessary or irrelevant facts and the matter is finalised within the allocated timeframes.
  2. [38]
    Second, there is some force to Crown Law's submissions that applying the law to determined facts in anti-discrimination cases can be a complex task.[38]
  3. [39]
    I agree that the allegations of impairment discrimination, sexual harassment, victimisation and breaches of the HR Act that have been made against the Department involve potentially complex legal principles, which the Commission will be required to apply to the factual conclusions.
  4. [40]
    For example, whether the Department has directly discriminated against Ms Rolph will require consideration as to whether there has been any less favourable treatment of Ms Rolph in circumstances that are the same or not materially different to another person without her impairment.[39]
  5. [41]
    Similarly, whether the Department has indirectly discriminated against Ms Rolph will require a determination, amongst other things, as to whether it imposed a term and whether the term was such that Ms Rolph did not or was not able to comply.[40]
  6. [42]
    In respect of the alleged impairment discrimination, the Commission will also be required to determine whether any of the recognised exemptions in the AD Act apply to the factual circumstances.[41]
  7. [43]
    Given the potentially complex legal and factual issues involved in the determination of this matter, I consider the Commission and the parties would potentially be assisted by the presence of private Counsel with relevant expertise.
  8. [44]
    As Her Honour, Vice President Linnane concluded in Pierres v Andrew Herzfeld Pty Ltd [2000] QIRC 11:

To deny legal representation in circumstances where questions of law will need to be determined and where extensive or skilful cross-examination is desirable is to preclude an effective investigation of the matters at the heart of the dismissal, and this cannot be desirable.[42]

  1. [45]
    Similarly, as outlined in Giannarelli v Wraith (1988) 165 CLR 543:

[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

  1. [46]
    For these reasons, I have concluded the proceedings will be dealt with more efficiently if leave is granted. This weighs in favour of the exercise of the discretion to grant leave.

Fairness

  1. [47]
    On the question of fairness, Ms Rolph raises concerns about the 'inequality of access to justice' in the context of the model litigant principles and her view that there has been a failure on the part of Counsel to discuss or negotiate a fair settlement during and after the conciliation of the substantive matter.
  2. [48]
    Crown Law disputes the accuracy of Ms Rolph's assertions in circumstances where the Department has not waived privilege, objects to Ms Rolph both repeating and relying  on these without prejudice discussions, as a reason for not granting leave to be legally represented.
  3. [49]
    In the absence of an affidavit from Ms Rolph concerning the circumstances in which the model litigant principles have not been followed and how this impacts the fairness between the parties, I am not persuaded this issue weighs against the exercise of discretion to grant leave.
  4. [50]
    In any event, I note it is not uncommon for parties to be aggrieved when their complaints are not resolved during conciliation conferences or to take issue with how discussions or negotiations are handled by representatives during these proceedings.
  5. [51]
    However, a failure by the parties to agree to a particular outcome or settle a matter to the satisfaction of a complainant or a respondent, does not by default lead to an automatic conclusion that the Commission should not grant leave to a party to be legally represented.
  6. [52]
    While I can appreciate why Ms Rolph might feel somewhat overwhelmed in anticipation of representing herself in the substantive proceedings, it was observed by Neate IC in Wanninayake v State of Queensland (Department of Natural Resources and Mines):

The fact that one party, either by choice of circumstances, is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.

To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.[43]

  1. [53]
    Ms Rolph can hopefully draw some comfort from the existence of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') and the obligation of the Commission to balance fairness between the parties through effective courtroom management and ensuring adherence to the Rules.
  2. [54]
    Moreover, as observed by His Honour, Vice President O'Connor, in Dawson:

[26] The Respondent is bound by the model litigant principles which require, amongst other things, that:

  1. the power of the State be used for a public good and in the public interest; and
  1. the principles of fairness are adhered to in the conduct of all litigation.[44]
  1. [55]
    Crown Law has submitted that it will comply with the model litigant principles. Additionally, if leave is granted for the Department to be represented by private Counsel, Crown Law has undertaken to instruct private Counsel to comply with the model litigant principles and not take unfair advantage of Ms Rolph.[45]
  2. [56]
    In addition to complying with the model litigant principles, Counsel has a paramount duty to the court and the administration of justice, which encompasses an obligation to act fairly and honestly.[46]
  3. [57]
    For the reasons set out above, I do not consider it would be unfair to grant leave for the Department to be represented by private Counsel.

Other matters – the time when the application for leave to be represented by legal counsel was filed

  1. [58]
    Ms Rolph observed in her submissions that the Department filed the Application, that is the subject of this decision, beyond the date contained within the Directions Order issued by the Industrial Registry.[47]
  2. [59]
    However, as deposed within Ms Williamson's affidavit, Crown Law, acting on behalf of the Department, was initially instructed on or around 25 August 2023 to brief Ms Marr of private Counsel in relation to the substantive matter.[48] Thereafter, on 26 September 2023 the Department filed a Form 101 – Application for leave to be represented by a lawyer.[49]
  3. [60]
    Although Ms Rolph maintains she was caught off guard by Counsel's attendance at a conciliation conference held on 20 November 2023,[50] it is clear from correspondence[51] sent to the Registry and Ms Rolph prior to the conference that private Counsel would be attending with the Department:

From:Hannah Atkinson <...>

Sent:Friday, 17 November 2023 12:22 PM

To:QIRC.Registry; [Ms Rolph's email address]

Cc:Danielle Williamson

Subject:RE: AD/2023/58 – Rolph v State of Queensland

...

Good afternoon,

I can confirm that Danielle Williamson (Crown Law), Jade Marr of Counsel and Aimee de Pass (Department of Energy and Public Works) will all be attending the conference on Monday 20 November.

Kind regards,

Hannah Atkinson

Senior Legal Secretary | Workplace Law | Part-time Wed – Thur

Public Law Branch

Crown Law[52]

  1. [61]
    In my view, it was open to the Department to file the Application when it did. It is a common occurrence within proceedings before the Commission that private Counsel may not be present for the entirety of the conference proceedings and at times are briefed only after it becomes apparent that the expertise of Counsel may be  required for an upcoming hearing.
  2. [62]
    While I sympathise with Ms Rolph and accept that navigating the Commission can be an unfamiliar experience; it is clear the Department went to various lengths, both by email and the filing of the Application for leave to be represented on 26 September 2023, to notify Ms Rolph of its intention to involve Counsel in the proceedings, pending leave being granted by the Commission.

Conclusion

  1. [63]
    For the above reasons, I consider the discretion to grant leave for Crown Law to instruct Counsel in this matter is enlivened.
  2. [64]
    As observed by his Honour, VP O'Connor in Dawson, 'the Commission has a responsibility to ensure that its practice and procedure are adhered to in order to facilitate the just resolution of disputes according to the law as quickly, inexpensively and efficiently as possible'.[53] This approach also aligns with one of the primary purposes of the IR Act, namely the delivery of high-quality services, economic prosperity and social justice for Queenslanders.[54]
  3. [65]
    For the reasons set out at [30] – [62] I grant leave to the Department to be represented by Counsel in these proceedings.
  4. [66]
    I order accordingly.

Order

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

Footnotes

[1] Referral of a complaint filed on 23 June 2023.

[2] Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8.

[3] Industrial Relations Act 2016 (Qld) s 529.

[4] Emphasis added.

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

[6] State of Queensland (Queensland Health) v Hume [2022] ICQ 001 citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563, NOM v DPP (2012) 38 VR 618, Warrell v Walton (2013) 233 IR 335, Fitzgerald v Woolworths Ltd (2017) 270 IR 128, and R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20.

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

[8] Ibid citing Applicant v Respondent [2014] FWC 2860.

[9] The Department's submissions filed 26 September 2023 [14].

[10] Ibid [15].

[11] Ibid [16].

[12] Ibid [18].

[13] Ibid [21]-[26].

[14] Ibid [27]-[29].

[15] Ms Rolph's Written Submissions filed 10 April 2024 [2].

[16] Ibid [2].

[17] Ibid [3].

[18] Directions Order issued on 26 June 2023.

[19] The Department's Written Submissions filed 29 April 2024 [3].

[20] Ms Rolph's Written Submissions filed 10 April 2024 [4].

[21] The Department's Written Submissions filed 29 April 2024 [4].

[22] Ms Rolph's Form 4 – Application in existing proceedings filed 14 March 2024.

[23] Ms Rolph's Written Submissions filed 10 April 2024 [5] – [11].

[24] Ibid [11].

[25] The Department's Written Submissions filed 29 April 2024 [6].

[26] Ibid [6].

[27] Ibid [8].

[28] Ibid [7].

[29] Ms Rolph's Written Submissions filed 10 April 2024 [12].

[30] Ibid.

[31] Ibid [13].

[32] The Department's Written Submissions filed 29 April 2024 [9].

[33] Ms Rolph's Written Submissions filed 10 April 2024 [14].

[34] Industrial Relations Act 2016 (Qld) s 530(4); State of Queensland (Queensland Health) v Hume [2022] ICQ 001.

[35] State of Queensland (Queensland Health) v Hume [2022] ICQ 001 [40].

[36] [2022] QIRC 189.

[37] Ibid [24].

[38] The Department's submissions filed 26 September 2023 [24]; McKinnon v Barron & Anor [2012] QCAT 169 [8].

[39] Anti-Discrimination Act 1991 (Qld) s 10.

[40] Ibid s 11.

[41] Ibid s 24.

[42] Pierres v Andrew Herzfeld Pty Ltd [2000] QIRC 11, 125.

[43] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2018] QIRC 133 6.

[44] State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118 [26].

[45] The Department's submissions filed 26 September 2023 [39].

[46] Bar Association of Queensland, Barristers' Conduct Rules (at 23 February 2018) r 25.

[47] Ms Rolph's Written Submissions filed 10 April 2024 [1]; Directions Order issued on 26 June 2023.

[48] Affidavit of Ms D Williamson filed on 19 March 2024 [2].

[49] The Department's Form 101 – Application for leave to be represented by a lawyer in certain proceedings filed 26 September 2023.

[50] Ms Rolph's Written Submissions filed 10 April 2024 [4].

[51] Correspondence sent to the Industrial Registry by the Department on 17 November 2023.

[52] Ibid.

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

[54] Industrial Relations Act 2016 (Qld) s 3.

Close

Editorial Notes

  • Published Case Name:

    Rolph v State of Queensland (Department of Energy and Public Works)

  • Shortened Case Name:

    Rolph v State of Queensland (Department of Energy and Public Works)

  • MNC:

    [2024] QIRC 188

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    31 Jul 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
Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174
1 citation
Jump To
Cite 1 - [2014] FWCFB 174
Applicant v Respondent [2014] FWC 2860
2 citations
Jump To
Cite 1 - [2014] FWC 2860
Cite 2 - [2014] FWC 2860
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Fitzgerald v Woolworths Ltd (2017) 270 IR 128
2 citations
Jump To
Cite 1 - (2017) 270 IR 128
Cite 2 - (2017) 270 IR 128
Giannarelli & Shulkes v Wraith [1988] HCA 52
1 citation
Jump To
Cite 1 - [1988] HCA 52
Giannarelli v Wraith (1988) 165 CLR 543
3 citations
Jump To
Cite 1 - (1988) 165 CLR 543
Cite 2 - (1988) 165 CLR 543
Cite 3 - (1988) 165 CLR 543
McKinnon v State of Queensland and Anor [2012] QCAT 169
2 citations
Jump To
Cite 1 - [2012] QCAT 169
Cite 2 - [2012] QCAT 169
NOM v Director of Public Prosecutions (2012) 38 VR 618
2 citations
Jump To
Cite 1 - (2012) 38 VR 618
Cite 2 - (2012) 38 VR 618
Peck v Workers' Compensation Regulator [2022] QIRC 189
2 citations
Jump To
Cite 1 - [2022] QIRC 189
Cite 2 - [2022] QIRC 189
Pierres v Andrew Herzfeld Pty Ltd [2000] QIRC 11
3 citations
Jump To
Cite 1 - [2000] QIRC 11
Cite 2 - [2000] QIRC 11
Cite 3 - [2000] QIRC 11
R v Workers Compensation Board; ex parte Heffernan [1979] Qd R 563
2 citations
Jump To
Cite 1 - [1979] Qd R 563
Cite 2 - [1979] Qd R 563
State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118
4 citations
Jump To
Cite 1 - [2021] QIRC 118
Cite 2 - [2021] QIRC 118
Cite 3 - [2021] QIRC 118
Cite 4 - [2021] QIRC 118
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
5 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
Cite 3 - [2022] ICQ 1
Cite 4 - [2022] ICQ 1
Cite 5 - [2022] ICQ 1
The King v Treblico; Ex parte F. S. Falkiner & Sons Ltd. (1936) 56 CLR 20
2 citations
Jump To
Cite 1 - (1936) 56 CLR 20
Cite 2 - (1936) 56 CLR 20
Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8
2 citations
Jump To
Cite 1 - [2018] ICQ 8
Cite 2 - [2018] ICQ 8
Wanninayake v Queensland [2018] QIRC 133
2 citations
Jump To
Cite 1 - [2018] QIRC 133
Cite 2 - [2018] QIRC 133
Warrell v Walton (2013) 233 IR 335
2 citations
Jump To
Cite 1 - (2013) 233 IR 335
Cite 2 - (2013) 233 IR 335

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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