Atkins v Brisbane City Council [2020] QIRC 176

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Atkins v Brisbane City Council [2020] QIRC 176 PARTIES: Atkins, Lillian Ruth (Applicant) v Brisbane City Council (Respondent) CASE NO: TD/2020/1 PROCEEDING: Reinstatement DELIVERED ON: 8 October 2020 MEMBER: Industrial Commissioner Dwyer ORDER: 1. Leave is granted for the Respondent to be represented by a lawyer CATCHWORDS: REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 – Whether Respondent can be represented by a lawyer under s 530 of the Industrial Relations Act 2016 – Factors to be considered by the Commission in deciding whether to allow legal representation – Circumstances of the case – Leave granted to be legally represented LEGISLATION CASES: Industrial Relations Act 2016, s 530 Public Interest Disclosure Act 2010, s 65 Le Pierres v Herzfeld Pty Ltd (2000)163 QGIG 124 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 -- 1 of 5 -- 2 Reasons for Decision Background [1] On 2 January 2020 Ms Lillian Atkins filed an application for reinstatement. Following an unsuccessful conciliation conference on 6 February 2020 the matter was allocated to me for hearing. [2] The matter was listed for mention on 14 September 2020. At the mention Mr Herbert of Counsel sought leave for his client, the Brisbane City Council ('BCC') to be legally represented in the proceedings. [3] Ms Atkins is represented in the matter by her appointed agent, Mr Gregory Cullen, who is not legally qualified. At the mention on 14 September 2020 Mr Cullen indicated that Ms Atkins wished to object to the BCC being legally represented in the proceedings. [4] Consequently, I issued directions requiring inter alia that the parties file submissions by 25 September 2020 on the question of leave for legal representation. Statutory framework [5] Subsection 530 of the Industrial Relations Act 2016 (Qld) ('the Act') sets out the circumstances where a party to the proceedings may be legally represented. Section 530 provides: 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— ... (d) for other proceedings before the commission, other than the full bench— (i) all parties consent; or (ii) for a proceeding relating to a matter under a relevant provision—the commission gives leave...... (4) An industrial tribunal may give leave under subsection (1) only 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 itself, himself or herself; 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. (Underlining added). Submissions of Ms Atkins [6] Ms Atkins submissions were contained in the affidavit of Mr Cullen filed 25 September 2020. I should note at the outset that Mr Cullen's affidavit also contains some objectionable content. -- 2 of 5 -- 3 [7] While no formal objection has been made by the BCC as to this content it should come as no surprise that I do not intend to have regard to paragraph 14 of Mr Cullen's affidavit because it delves into comments allegedly made during a without prejudice conciliation conference in this matter. [8] The submission of Ms Atkins are conveniently summarised at paragraph 44 of Mr Cullen's affidavit and I do not need to reproduce them in full here. In essence the submission is that: • The BCC has competent in-house personnel to conduct the proceedings; • The matter is not overly complex; • The Public Interest Disclosure 'submission' will be treated on its merits; • Legal representation will make the matter overly adversarial; • Ms Atkins will be at a disadvantage. Submission of the BCC [9] In submissions filed 25 September 2020 the BCC contends that leave should be granted on the basis that the matter is complex and would be more efficiently conducted with legal representation. [10] The submission relies on the circumstances giving rise to the termination of Ms Atkin's employment, namely: her involvement in a recruitment process that included her daughter, and her failure to declare a conflict of interest. This conduct became the subject of consideration by the Crime and Corruption Commission ('the CCC'), and an investigation by the BCC's Ethical Standards Unit. The allegations were then the subject of an investigation that concluded the alleged conduct was substantiated. [11] Within this factual context there are persons ('the disclosers') who provided information and who have been granted status as Public Interest Disclosers under the Public Interest Disclosure Act 2010 (Qld) ('the PID Act'). [12] Citing s 65 of the PID Act, the BCC submits that the PID Act imposes onerous duties of confidentiality on them with respect to the disclosers and that serious sanctions can be imposed for contraventions of those statutory duties. Similar obligations exist with respect to documents relevant to the proceedings that form part of the disclosures. [13] It is submitted by BCC that this makes the proceedings complex in nature because of the sensitive issues likely to arise under the PID Act in relation to evidence and witnesses in the proceedings. It is submitted that there will be inevitable questions of law as to the operation of the PID Act. [14] In the circumstances it is submitted that these complex proceedings will be dealt with more efficiently if BCC is legally represented. Consideration [15] The discretion to grant leave for a party to be legally represented is limited to the circumstances set out in s 530(4) of the Act. In particular I note that s 530(4)(a) allows for the exercise of the discretion in the interest of efficiency, having regard to the complexity of the matter. -- 3 of 5 -- 4 [16] Contrary to submissions of Ms Atkins, I was not in any way misled by comments from Mr Herbert at the mention in terms of my understanding of the issues. In addition to the written submissions of the parties, I have had regard to the Application for Reinstatement and the accompanying affidavit of Ms Atkins (including the attached letter of termination dated 12 December 2019). I have a clear understanding of the issues likely to be traversed in the evidence at hearing. [17] This matter will undoubtedly be accompanied by complexities. Indeed, it is likely from indications given at the mention on 14 September 2020 that there will complexities with respect to interlocutory issues of disclosure also. The management of evidence emerging in the context of disclosures under the PID Act is invariably a process that requires a deft approach. [18] Further, contrary to Ms Atkin's submission (at paragraph 44.4 of Mr Cullen's affidavit) there is not a single PID Act 'submission'. In the circumstances I can readily anticipate there will likely be multiple issues around multiple documents and witnesses. Each of these will need to be dealt with individually. [19] In addition to issues arising from evidence that is arguably subject to confidentiality obligations under the PID Act, it is apparent that this matter will require the cross examination of at least 6 to 8 witnesses. I can readily anticipate that, in a matter of this nature, none of their evidence will be straight forward or brief. [20] As the (then) Vice President said in Le Pierres v Andrew Herzfeld Pty Ltd1: To deny legal representation in circumstances where questions of law will need to be determined and where extensive or skillful cross-examination is desirable is to preclude an effective investigation of the matters at the heart of the dismissal, and this cannot be desirable. [21] In the circumstances I consider that this matter is likely to traverse complex legal issues associated with the obligations and protections arising under the PID Act. It will also involve the complex task of extensive preparation, presentation and cross examination of multiple witnesses. All of these tasks will be more efficiently dealt with by a lawyer in my view. [22] I am mindful that Ms Atkins may feel disadvantaged. I make two observations in that regard. [23] Firstly, her decision not to engage legal representation does not mean that the BCC should be denied the opportunity to efficiently present a case involving the aforementioned complexities.2 [24] I note Ms Atkins cites the 'financial consequences of her dismissal'3 as the reason for not engaging a lawyer. While noting that Ms Atkins is free to elect to be non-legally represented, I also note there are a great many lawyers and skilled advocates who service clients on a speculative or 'no win/no fee' basis who are only a google search 1 (2000) 163 QGIG 124. 2 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079. 3 Paragraph 5 of the affidavit of Mr Cullen filed 25 September 2020. -- 4 of 5 -- 5 away. A lack of resources ought not be a barrier to Ms Atkins being represented by a lawyer if that is her preference. [25] Secondly, Ms Atkins ought to be assured that the conduct of the proceedings will not be under the control of the legal representative for the BCC. As the Member hearing the matter I will ensure that proceedings, in this and in all matters, are conducted in a manner that is fair to all parties4. [26] In the circumstances I am not satisfied that Ms Atkins will be disadvantaged or that there will unfairness if the BCC is legally represented. Conclusion [27] In the circumstances I grant leave for the BCC to be legally represented in the proceedings. 4 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079. -- 5 of 5 --