Farrelly v Queensland Ambulance Service [2005] QIRC 167 (2005) 180 QGIG 1046

[Extract from Queensland Government Industrial Gazette, dated 9 December, 2005, Vol. 180, No.19, pages 1046-1047] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement David Farrelly AND Queensland Ambulance Service (TD/2005/139) DEPUTY PRESIDENT BLOOMFIELD 23 November 2005 Application for reinstatement – Legal representation – s. 139 of Industrial Relations Act 1999 – Special circumstances exist which warrant granting of application for leave to be legally represented. DECISION This is an application by David Farrelly (the Applicant) to be legally represented in his substantive application for relief relating to his alleged unfair dismissal by Queensland Ambulance Service (the Respondent) on or about 12 September 2005. The Respondent does not consent to the Applicant being legally represented. Submissions on behalf of the Applicant Mr L. Forsyth, who appeared for the Applicant, indicated that contrary to what might be put to the Commission by the Respondent the application was quite a complex matter involving detailed questions of law as well as a requirement for skilful and precise cross-examination. In this latter respect, Mr Forsyth indicated that the nature of the allegations against the Applicant, which led to his dismissal for misconduct, meant that there was still some possibility that the Applicant might be charged with certain offences pursuant to the Police Service Administration Act 1990 and/or the Crimes Act 1914 (Cth). Consequently, it would take considerable skill on behalf of the advocate who represented the Applicant to adduce evidence in a way which did not leave the Applicant open to further charges. Mr Forsyth also submitted that the nature of the Applicant’s termination, i.e. for misconduct as a result of his alleged repudiation of his employment contract, involved complex issues of law. In this respect the Commission would be assisted by hearing from a skilled advocate on behalf of the Applicant given he had a completely clean disciplinary history over 19 years of service with the Respondent. Further, there would be other unusual evidentiary issues raised in the course of the proceedings. Firstly, there would be a deal of evidence about the probative value of lay identification of voice recordings – which is more commonly a feature in the criminal jurisdiction and a matter rarely encountered by lay advocates. Secondly, there was a strong potential that expert witnesses would be called from within the telecommunications industry to give evidence about the processes used by telephone companies to record and control 000 calls from mobile telephones. Again, these experts would require skilful examination-in-chief and cross-examination to ensure that all of the relevant evidence was presented in a coherent and logical fashion. Mr Forsyth also indicated that an investigation commissioned by the Respondent raised the issue of the standard of proof required in a case such as this and that Mr Mapstone had also indicated that the Respondent had “raised the bar” appropriately to deal with the circumstances. Consequently, the Applicant’s representative would be seeking to cross- examine Commissioner Higgins of the Respondent about his understanding of the appropriate standard and in particular his understanding of the requirements of the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. These were important matters in the Applicant’s defence and really required the engagement of a skilled legal advocate. Finally, Mr Forsyth submitted that the Applicant desired to be legally represented and the nature of the material to be canvassed meant that he could only be given “a fair go” if he was legally represented by a person of his choosing. Submissions on behalf of the Respondent On behalf of the Respondent, Mr Mapstone submitted there were no special circumstances which warranted the Applicant being legally represented. As he put it “the facts are cut and dried. The evidence is simple and there are no complex legal issues.”. Nothing in the proceedings would require the Applicant to be legally represented. However, the matter was one appropriate to be determined by the Commission based upon its impression of the case. Conclusion After considering the competing submissions, as well as the nature of the issues likely to be involved from my reading of the application, I think this is a case where the requisite special circumstances exist that make it desirable for the Applicant to be legally represented. -- 1 of 2 -- 2 Whilst at first blush the issues appear to be quite simple, the nature of the Applicant’s proposed defence – as well as his strong denials that he was responsible for the hoax calls to the 000 number – clearly indicate that this is not going to be a normal, run-of-the-mill, reinstatement application. The Applicant proposes to be represented by experienced counsel whose involvement, in my humble opinion, will assist the Commission (and the Respondent) by clearly focussing on the key issues in the defence and drawing out, in the appropriate way, those elements which, it will be argued, demonstrate that the Respondent erred in reaching the conclusion that the Applicant was guilty of the offences alleged and/or that the appropriate response was his termination. In undertaking that task there will be considerable concentration on the nature of the investigation undertaken by the Respondent and whether the Respondent applied the appropriate tests in line with Briginshaw v Briginshaw (supra). In addition, there is a strong likelihood that expert evidence will be called in two areas, namely voice recognition and telecommunications processes/procedures. In all of these areas the Commission can clearly be assisted in the performance of its statutory duty if the Applicant is represented by a skilled and experienced legal practitioner. Without that level of representation this case has the potential to degenerate into a tortuous, time consuming and poorly focussed affair. In summary, the Commission is satisfied, pursuant to s. 319(2)(b)(iii)(A) of the Industrial Relations Act 1999, that there are special circumstances in this case that make it desirable for the Applicant to be represented by a legal practitioner. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing details: 2005 16 November Appearances: Mr L. Forsyth, of Hall Payne Lawyers, for the Applicant. Mr D. Mapstone, of the Department of Emergency Services, for the Respondent. Released: 23 November 2005 Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --