Attard v Queensland Corrective Services [2007] QIRC 10 (2007) 184 QGIG 81

[Extract from Queensland Government Industrial Gazette, dated 16 February, 2007, Vol. 184, No. 7, pages 81-82] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 319 - representation of parties Leslie Anthony Attard AND Queensland Corrective Services (B/2007/9) DEPUTY PRESIDENT SWAN 6 February 2007 DECISION This application is made by Mr L. Attard who has lodged an unfair dismissal claim with the Queensland Industrial Relations Commission (the Commission) (TD/2006/469). The respondent, Queensland Corrective Services (QCS) had raised a jurisdictional challenge to the effect that Mr Attard is an "excluded employee" (s. 72(1)(d) of the Industrial Relations Act 1999 (the Act)). Prior to having the jurisdictional matter heard, Mr Attard has requested that he be legally represented. QCS has not consented to that request. The parties also claim that there is an unsettled discovery matter between them. As of 1 February 2007, the discovery issue has been resolved and the transcript of proceedings, together with the Further Directions Order dated 5 February 2007, record that agreement. This decision relates only to the question of legal representation. With the consent of QCS and by leave of the Commission, Mr Healy of Counsel, instructed by Shine Lawyers for Mr Attard, addressed the Commission on the question of legal representation. Section 319(2)(b)(ii) states: "(2) The party or person may be represented by a lawyer if, and only if - ... (b) for proceedings before the commission, other than proceedings under section 278 or 408F - (i) the proceedings relate to a matter under chapter 4, other than section 110; or (ii) all parties consent; or (iii) the proceedings relate to a matter under chapter 3, or under section 110, 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application by a party or person - (A) the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented; or (B) the commission is satisfied the party or person can be adequately represented only by a lawyer; or". Section 319(4) states: "For subsection 2(b)(iii) and (iv), the commission may consider, for example, the following - (a) the amount claimed in the proceedings, if any; (b) the nature and complexity of the matter; (c) the nature of the evidence to be adduced; (d) the cross examination likely to be required; (e) the capacity of the party or person to represent himself or herself; (f) the questions of law likely to arise; (g) whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.". The applicant claimed that the issues involved in hearing the jurisdictional challenge involved issues of complexity. Primarily an interpretation of s. 72(1)(d) of the Act was required together with a consideration of the body of case law in relation to that section. The respondent has referred to some 11 contracts of employment (of either a casual or temporary nature) applicable to Mr Attard's employment. It is contended by the applicant that determining the true nature of each contract would require significant consideration and that the applicant would face difficulty in assessing this situation without legal assistance. The applicant submitted that the nature of the evidence to be considered included:  three affidavits on behalf of the applicant;  a significant affidavit from the respondent;  11 contracts of varying descriptions;  consideration as to whether the contracts fall within the exclusions of s. 72(1)(d) of the Act; and  questions of law relating to the true nature of the employment relationship between the parties. -- 1 of 2 -- 2 Were the applicant not legally represented, he would be required to cross-examine Mr K. Rooney (the Director of Human Resources for the respondent). The applicant contends that Mr Rooney would be better versed on the issues relating to this application than would the applicant. The applicant's submissions is that by reason of his "education, qualifications and experience" he is not equipped to appropriately deal with all aspects relating to his claim. The respondent stated that during the conciliation process before the Commission and up until most recently, the applicant had not been legally represented. He has been represented by an industrial relations advocate who, in the respondent's view, could have adequately represented the applicant at trial. It is not uncommon for a party's representation to be changed after a conciliation conference and with the knowledge that the matter cannot be resolved and is going to trial. It is of course preferable for the party wishing to utilise the services of a legal representative to raise this issue as soon as possible given that legal representation is not "as of right". This did not occur in this case. However, it remains a matter legitimately before the Commission to determine. The respondent did not accept that the matters in contention between the parties were complex. It believed that it was merely a matter of fact whether the applicant was employed on a temporary or other basis. Further, the respondent stated that the applicant had expressed his opinion at the conciliation conference without any apparent difficulty. In the exercise of my discretion and in considering the issues raised by the parties, I find that "special circumstances" do exist to the extent that the applicant would be better served by being represented by a legally qualified representative. The applicant had been employed for approximately 7 years by the respondent under some type or types of contractual arrangement/s. The average employee would find it difficult to legally analyse and comment upon the various forms of contract which might have applied between the parties. On this point alone, I would have permitted legal representation. This view is bolstered by the fact that the respondent, a Government Department, has significant resources at hand to conduct an appropriate case. Further, it would be very difficult for the applicant to conduct meaningful cross-examination with his significantly limited knowledge of contract law. Having considered all of the submissions in this matter, I grant the application. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2007 1 February Appearances: Mr M. Healy, Counsel, instructed by Ms L. Smith of Shine Lawyers, for the applicant. Mr D. Matley of Queensland Corrective Services, respondent. Released: 6 February 2007 Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --