Brown v Workers' Compensation Regulator [2025] QIRC 356

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brown v Workers' Compensation Regulator [2025] QIRC 356 PARTIES: Brown, Alex Sandy (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2025/180 PROCEEDING: Application to be legally represented DELIVERED ON: 17 December 2025 MEMBER: HEARD AT: O'Connor VP On the papers ORDER: Leave is granted for the Respondent to be legally represented in matter WC/2025/180 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld). CATCHWORDS: INDUSTRIAL LAW – WORKER'S COMPENSATION APPEAL – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 (Qld) – where the respondent has applied for leave to be legally represented under s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where the application is opposed – whether commission should exercise discretion to grant leave – where leave granted. -- 1 of 8 -- 2 LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 529, s 530 Workers' Compensation and rehabilitation Act 2003 (Qld) s 144, s 548, s 550, s 552 Mario v Workers' Compensation Regulator [2021] QIRC 406 Peck v Workers' Compensation Regulator [2022] QIRC 189 State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024] QIRC 205 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Tuesley v Workers' Compensation Regulator (2021) 307 IR 395 Turay v Workers' Compensation Regulator [2023] ICQ 13 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 79 Workers' Compensation Regulator v Glass (2020) 4 QR 693 Zhong v Melbourne Health [2015] VSCA 165 Reasons for Decision [1] The appellant filed a notice of appeal in the Queensland Industrial Relations Commission ('the Commission') on 30 July 2025 against the decision of the respondent dated 12 June 2025. [2] The respondent, in its decision, confirmed the decision of WorkCover Queensland, an insurer under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act') -- 2 of 8 -- 3 to terminate weekly payments of compensation to the appellant from 12 February 2025 in accordance with s 144A of the WCR Act; noting that the entitlement to weekly compensation payments stop when the incapacity, because of the work-related injury, stops. [3] The Commission, by Order of 1 August 2025, gave leave for the respondent to be legally represented in the appeal. [4] The appellant objected to the respondent being legally represented on 7 August 2025. The Legislative Scheme [5] Section 552B of the WCR Act provides for legal representation at conference or the hearing of an appeal in the following terms: 552B Legal representation at appeal or conference A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with – (a) the agreement of the parties; or (b) the appeal body's leave [6] An appeal body is defined in the WCR Act as the Commission.1 [7] Section 552B falls within Chapter 13, Part 3, Division 1 of the WCR Act. [8] Chapter 13 of the WCR Act deals with reviews and appeals. [9] Relevantly, Part 3 Division 1 of the WCR Act deals with an appeal to an Industrial Magistrate or the Commission. [10] Section 548 of the WCR Act provides that Part 3, Division 1 applies to, inter alia, a review decision.2 [11] As noted above, matter WC/2025/180 is an appeal to the Commission of a review decision. [12] Chapter 13, Part 3, Division 1, sets out, inter alia, the procedure for the appeal,3 including by providing notice of the hearing of the appeal and conference. 4 1 WCR Act s 548A(1). 2 Ibid, s 548(1)(a). 3 Ibid, s 550. 4 Ibid, s 552, s 552A. -- 3 of 8 -- 4 [13] It is within this statutory context that s 552B of the WCR Act provides that a party may be represented by a lawyer in the terms set out in s 552B at a conference or a hearing. [14] Prior decisions of the Commission have also had regard, in varying degrees, to s 530 of the Industrial Relations Act 2016 (Qld) ('IR Act') which provides for legal representation in accordance with its terms under the IR Act. 5 [15] Chapter 13, Part 3, Division 1 of the WCR Act provides the statutory right of the appeal with respect to appeals to the Commission regarding a review decision. 6 Within that context the Commission may exercise its discretion to grant leave for a party to be legally represented. 7 [16] Accordingly, I do not consider that s 530 of the IR Act operates as the source of power to grant leave for legal representation with respect to an appeal that falls within chapter 13, Part 3, Division 1 of the WCR Act.8 [17] The appellant opposes leave for the respondent to be legally represented. The appellant outlines the following grounds to support the submission: • It would not be fair and balanced for the respondent/Industrial Relations Department to gain further advantage and favour by being allowed to have a lawyer, against an unrepresented 68-year-old pensioner, the appellant. • It would not be aligned with the Industrial Relations Department Service Charter of high quality services for them to be granted a lawyer to make excuses for the staff errors that have led to this Appeal. • It would not be aligned with the Industrial Relations Department Service Charter of high quality services for them to have a lawyer to make excuses and cause distractions that neglect the focus on Staff Accountability found numerous places in the Queensland Public Service Code of Conduct • It would neglect the principle of social justice for Queenslanders for them to have a lawyer to argue that I should not have Workers Compensation, after both of the my doctors certified that I was injured with limited capacity from February to May…AND 5 State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024] QIRC 205. Cf Mario v Workers' Compensation Regulator [2021] QIRC 406. 6 See the line of reasoning in Workers' Compensation Regulator v Glass (2020) 4 QR 693; Tuesley v Workers' Compensation Regulator (2021) 307 IR 395; Turay v Workers' Compensation Regulator [2023] ICQ 13. 7 WCR Act s 552B(b). 8 See also State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024], QIRC 205 [27] – [33]. -- 4 of 8 -- 5 • It would neglect the principle of social justice for Queenslanders for them to have a lawyer to argue that the appellant should not have Workers Compensation, after Work Cover claimed that the appellant had no injury that prevented him from working yet work cover paid for medical expenses for the worker they claimed that had no injury. • It would not be fair and balanced for the Industrial Relations Department to gain further advantage and favour by being allowed to have a lawyer, against an unrepresented 68-year-old pensioner, the appellant, because this also violates Section 4 (q) of the Act. • The appellant also references section 530 (4) of the IR Act • That legal representation would not enable the proceedings to be dealt with more efficiently, but would greatly increase the complexity of that matter. • It would be unfair having regard to fairness between the party or person, and other parties or persons in the proceedings. • The appellant is already disadvantaged having regard to the resources of the Industrial Relations and the appointment of legal representation would make it an even bigger mismatch. • That the appointment of Legal representative is inconsistent with section 3 of the IR Act.9 [18] The respondent contends that the appeal is likely to involve complex questions of fact and law, particularly in respect of what is meant by incapacity and when such incapacity stops and will require investigation and assessment of complex factual matters and medical evidence.10 [19] The respondent also contends that the Commission would be assisted by counsel given their experience in the appeals involving self-represented appellants, as in this case, and their ability to examine the evidence and identify the key issues to be determined in the appeal. 11 [20] The resolution of the issues before the Commission requires an assessment of both fact and law. In undertaking that task, both the Commission and appellant will benefit from structured submissions by counsel, applying relevant legislation and identifying relevant 9 Appellant’s submissions filed 12 September 2025, [2] – [7], [9] – [11]. 10 Respondent’s submissions filed 22 September 2025, [7]. 11 Ibid, [8]. -- 5 of 8 -- 6 case law. 12 Moreover, it is submitted that counsel will provide assistance in the form of independent, forensic legal skills, and the overriding obligations to the Commission.13 [21] The respondent also recognises that it must act in accordance with the model litigant principles which safeguard against unfairness rather than operate oppressively and it also is common for the respondent's counsel to identify any potential grounds for compromise of the appeal that may favour the appellant. [22] The primary contention of the appellant is that it would be unfair to grant legal representation to the respondent in circumstances where the appellant is not legally represented in the proceedings. Consideration [23] The appellant’s submissions misapprehend the nature of the appeal process and the role played by the Commission. [24] The Commission is an independent tribunal vested with the power to hear and determine appeals under the WCR Act. Workers' compensation appeals are conducted on a de novo basis. In other words, the matter is heard from the beginning, and the Commission can consider new or fresh evidence obtained during the appeal process and is not limited to the information that was before the previous decision maker. Importantly, the Commission will make its decision based solely on the evidence presented during the hearing. The Commission does not revisit the decisions of WorkCover Queensland or the respondent. [25] It is well accepted that fairness is not an abstract concept. The Commission's aim in the conduct of these proceedings is to avoid practical injustice.14 [26] In Peck v Workers' Compensation Regulator,15 Deputy President Merrell outlined the following when considering the exercise of the discretion under s 552B of the WCR Act: [14] Because the discretion is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject- matter, scope and purpose of the statute, some implied limitation on the factors to which the Commission may legitimately have regard. If there is nothing in the subject matter, scope and purpose of the statute that suggests some implied limitation on the matters to which the decision maker may legitimately have regard, it is largely for the decision maker, in light of the matters placed before it by the parties, to determine which matters are relevant and the comparative importance to be afforded to those matters. 12 Respondent’s submissions filed 22 September 2025, [9]. 13 Ibid, [10]. 14 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, [37]. 15 [2022] QIRC 189. -- 6 of 8 -- 7 [15] My preliminary view is that there is nothing in the subject matter, scope and purpose of the Act that immediately suggests some implied limitation on the matters to which I may legitimately have regard in determining whether or not to grant leave to a party to be represented by a lawyer. [16] Thus, it is for me, in light of the matters referred to in the parties' submissions, to determine which matters are relevant and the comparative importance to be afforded to those matters as to whether or not I exercise my discretion to give leave to the Regulator to be represented by a lawyer. [citations omitted] [27] In Wanninayake v State of Queensland (Department of Natural Resources and Mines)16, Neate IC, in assessing whether to grant leave for a self-represented litigant to be represented, observed: … competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.17 [28] In my view, the appellant's election not to be legally represented should not be held as a bar against the respondent being granted leave. As was observed by Neate IC in Wanninayake: The fact that one party, either by choice or 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.18 [29] The respondent is bound by the model litigant principles which require, amongst other things, that: (a) the power of the State be used for a public good and in the public interest; and (b) the principles of fairness are adhered to in the conduct of all litigation. [30] Moreover, it must be remembered that counsel's paramount duty is to the court and the administration of justice. Whilst counsel must represent their clients honestly and to the 16 [2014] QIRC 79. 17 Ibid, [6]. 18 Ibid. -- 7 of 8 -- 8 highest standards, unaffected by personal interests, they must also assist in identifying the real issues in dispute early and deal with those issues efficiently.19 [31] The Victorian Court of Appeal in Zhong v Melbourne Health20 referred to the duty of counsel, where appearing against an unrepresented person, to assist the Court to discharge its duties to an unrepresented litigant; namely, "to draw attention to matters that might reasonably bear upon the Court’s decision which, in a case where all the parties were represented, could be expected to be referred to by the opposing practitioners".21 [32] Notwithstanding the appellant's submissions to the contrary, the respondent's adherence to the model litigant principles, the obligations imposed upon counsel, together with the Commission's conduct of proceedings, will ensure that no disadvantage is suffered by the appellant if the respondent is legally represented. [33] I consider that legal representation of at least one of the parties will assist all parties to focus on and consider relevant matters and ensure the efficient and fair conduct of these proceedings. [34] It follows therefore, that leave should be granted for the respondent to be legally represented. Order: 1. Leave is granted for the respondent to be legally represented in matter WC/2025/180 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 19 Barristers’ Conduct Rules 2025. 20 [2015] VSCA 165. 21 Zhong v Melbourne Health [2015] VSCA 165, [67]. -- 8 of 8 --