Clements v Phillips (No. 2) [2023] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Clements v Phillips (No. 2) [2023] QIRC 095 PARTIES: Clements, Chandra Anne (Complainant) v Phillips, Darren (Respondent) CASE NO.: AD/2021/67 PROCEEDING: Application in existing proceedings DELIVERED ON: 30 March 2023 MEMBER: HEARD AT: Power IC On the papers ORDER: Leave is granted for the Respondent to be legally represented pursuant to s 530(4)(a) of the Industrial Relations Act 2016 (Qld). CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – application for legal representation – where first and second respondents have applied for leave to be legally represented – where complainant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – efficiency of proceedings – where leave is granted for legal representation LEGISLATION: Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld), s 530 Industrial Relations (Tribunals) Rules 2011, r 41 CASES: Clements v Philipps [2022] QIRC 052 E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 -- 1 of 8 -- 2 Porche v State of Queensland (Department of Education) [2020] QIRC 204 State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 Reasons for Decision Introduction [1] On 24 December 2021, the Queensland Human Rights Commission ('the QHRC') referred a complaint to the Queensland Industrial Relations Commission ('the Commission') filed by Ms Chandra Anne Clements ('the Complainant'), alleging discrimination under the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). [2] On 2 December 2022, the Respondent filed an application in existing proceedings seeking leave to be legally represented, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld) ('the IR Act') and an Order to join parties made pursuant to r 41 of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules') following a settlement deed dated 16 June 2021. [3] The Complainant objects to the Respondent being granted leave to be legally represented. [4] This decision is the determination of whether leave should be granted for the Respondent to be legally represented in the proceedings. Legislative framework [5] Section 530 of the IR Act relevantly provides for legal representation as follows: 530 Legal representation … (1) A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if— … (c) for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or … (4) An industrial tribunal may give leave under subsection (1) only if— -- 2 of 8 -- 3 (a) it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or (b) 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 (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. 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 … [6] The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave if: (a) it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or (b) 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 (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. [7] In State of Queensland (Queensland Health) v Hume,1 Deputy President Merrell opined the following with respect to the construction of s 530(4)(a) of the IR Act: [34] First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c). [35] Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court. The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer. [36] Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.' 1 [2022] ICQ 001. -- 3 of 8 -- 4 [37] Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act. [38] Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant. [39] By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings. [40] Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter. [41] Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness. [42] Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion. [43] The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings. [44] As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised. Respondent's submissions [8] The Respondent submits that s 530(4)(a) of the IR Act, provides that the Commission may grant leave as it will enable the proceedings to be dealt with more efficiently outlining the following reasons: (a) complex legal issues requiring statutory interpretation of legislation; -- 4 of 8 -- 5 (b) disputed facts regarding the types and discriminatory nature behind the allegations; (c) eleven witnesses are to be called at the hearing, thus there is likely to be a large volume of oral evidence to be heard; (d) the duration of the hearing is expected for a period of 5 days; and (e) consideration may be required for a settlement deed and whether the respondent is held harmless by the deed, which will be required if the parties are joined pursuant to the Respondent's application. [9] The Respondent submits that Vice President O'Connor (O'Connor VP) referred to the involvement of legal representatives to assist the Commission to efficiently deal with proceedings, referring to State of Queensland (Department of the Premier and Cabinet) v Dawson ('Dawson').2 [10] The Respondent referred to Wanninayake v State of Queensland (Department of Natural Resources and Mines)3 submitting that: ...that legal representation can assist the Commission in relation to matters involving points of law, and skilful cross-examination of witness can only assist the Commission in determining the matters it has to decide. [11] The Respondent relies upon the decision in Porche v State of Queensland (Department of Education)4 considering that the introduction of Counsel would enable a hearing involving twelve witnesses requiring examination-in-chief, reply and cross examination to be dealt with efficiently. [12] The Respondent further submits that due to the complex legal principles of indemnity and interpretation of the proceedings, it would be unfair to have the parties be unrepresented. Complainant's submissions [13] The Complainant objects to the Respondent's application for legal representation pursuant to s 530(4) of the IR Act. [14] The Complainant disputes the Respondent's submission that the Complainant failed to substantiate the discrimination complaint. Following, the Complainant submits that substantial evidence was provided. [15] The Complainant submits that the Respondent holds a senior position as the General Manager of Fusable Pty Ltd and can be self-represented. 2 [2021] QIRC 118. 3 [2014] QIRC 079. 4 [2020] QIRC 204. -- 5 of 8 -- 6 [16] The Complainant submits the following reasons with respect to the complexity of the matter: (a) Efficiency of this matter may be further compromised by Mr Loel's involvement. (b) Information relevant to the existing proceedings has either been withheld from the Queensland Human Rights Commission (QHRC), the QIRC, the Complainant and other relevant parties for a period of totalling more than 12 months by the Respondent or has now been introduced to add complexity to the matter. [17] The Complainant highlights that on 2 December 2022, the Respondent filed an application for legal representation and for an Order to join parties attaching Mr James Beresford Loel's (Mr Loel) Affidavit and Deed of Settlement dated 16 June 2021. [18] The Complainant outlines that upon enactment of the deed of settlement in 2021, Mr Loel was the legal representative of the Respondent. In addition, the Respondent and Mr Loel were aware of the contents of the deed which was accepted by the QHRC in October 2021 and when the matter was transferred to the Commission in December 2021. [19] The Complainant further outlines that she was contacted by Ms Cristy Dickman of the QHRC regarding the deed. Ms Dickman advised that the QHRC was not provided a copy of the deed of settlement. [20] The Complainant submits that upon the QHRC's referral of the matter to the Commission and provision of direction orders, Mr Loel did not include the deed of settlement in the Respondent's list of documents provided on 26 August 2022. Further, the Respondent did not advise the Complainant the need to join Fusable Pty Ltd to the proceedings or the existence of the deed of settlement on 30 August 2022 and 24 November 2022. [21] The Complainant submits that only a Court would have jurisdiction upon deciding the contractual rights and obligations of a deed of settlement. Further submitting the following: …that the true complexity of the current matter is based on whether the allegations included in her complaint occurred as outlined, and if so, did they constitute a breach under the Anti-Discrimination Act 1991. [22] The Complainant further submits that that legal representation will provide a benefit to the Respondent due to a resulting power imbalance, and the complexity raised by the Respondent is unnecessary and is created to deflect the matter from the substantive issue, which is whether the Respondent's actions constitute discrimination under the AD Act. Consideration [23] As outlined above, s 530(4) of the IR Act provides that the Commission may grant leave for a party to be legally represented if: (a) it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or -- 6 of 8 -- 7 (b) 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 (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. [24] In Dawson,5 his Honour O'Connor VP referred to the consideration of legal representation and the efficient conduct of litigation by a number of authorities including the following: 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 … [25] Section 530(4)(a) of the IR Act provides that leave may be granted if it would enable the matter to be dealt with more efficiently by the Commission. Whilst regard must be had to the complexity of the matter, the matter does not have to be more complex than other matters.6 [26] I consider the circumstances of this matter involves complexity on the basis that the material filed raises allegations involving significant disputes of both fact and law. The witness lists filed by the parties indicate eleven witnesses will be called to provide evidence and be required for cross-examination. I am of the view that legal representation will assist the efficient management of this process. [27] I note the consideration of Deputy President Merrell7 in his decision regarding an earlier application for legal representation in this matter. Deputy President Merrell dismissed the application for a number of reasons including his view that issues relating to witness cross examination did not give rise to a conclusion that legal representation would enable the proceeding to be dealt with more efficiently given that the relevant proceeding at that stage was a conciliation conference. Now that the matter has proceeded to hearing, the likely cross examination of a significant number of witnesses lends weight to a conclusion that legal representation would enable the proceeding to be dealt with more efficiently. [28] I accept the Complainant's submission that the substantive issue is whether the Respondent's actions constitute discrimination under the AD Act. I do not consider the issue raised by the Respondent regarding a settlement deed to be a relevant consideration with respect to the complexity of the matter or the determination of this application. [29] The Complainant submits that legal representation will provide a benefit to the Respondent due to a resulting power imbalance. Leave in these circumstances is granted 5 [2021] QIRC 118. 6 State of Queensland (Queensland Health) v Hume [2022] ICQ 001. 7 Clements v Phillips [2022] QIRC 052. -- 7 of 8 -- 8 not to afford greater power to a party but to assist the Commission with the efficient conduct of the proceedings. It is also noted that a lawyer’s duty to the Commission prevails over that of the duty to their client. As considered in E. Allen and Ors v Fluor Construction Services Pty Ltd:8 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.9 [30] I consider that legal representation will assist in the efficient conduct and management of the proceedings and determine to exercise my discretion to grant leave for the Respondent to be legally represented. Order [31] I make the following order: Leave is granted for the Respondent to be legally represented pursuant to s 530(4)(a) of the Industrial Relations Act 2016 (Qld). 8 [2014] FWCFB 174. 9 Ibid [28]. -- 8 of 8 --