Comino v Eagle Recruitment Pty Ltd [2000] QIRC 65 (2000) 164 QGIG 283

14 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 283 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 319 – application for representation of parties Kalliope Comino AND Eagle Recruitment Pty Ltd (No. B395 of 2000) COMMISSIONER SWAN 5 July 2000 Respondent seeking leave for legal representation – Applicant opposed request – Respondent claim of special circumstances – Applicant claims circumstances are not special – Commission accepts that special circumstances exist – Application successful. PRELIMINARY DETERMINATION This is an application made by Solicitors representing a respondent Company in a reinstatement hearing to be heard in September 2000. That Company seeks leave from the Commission to be legally represented at the reinstatement hearing. Mr Harding, of Counsel, on behalf of the applicant in the reinstatement hearing opposed that request. Mr Betros (a Solicitor representing the Company) claimed that special circumstances would arise in the reinstatement case which justified the use of legal representation. The special circumstances raised included a consideration of the following points:– That the claim made by the applicant may be a substantial claim; That the issues in the matter were complex; That there was a question of whether the applicant was in fact dismissed; That a jurisdictional point would arise that the applicant was an excluded employee; That the respondent, a solicitor by profession, could be seriously affected within his profession were a finding adverse to him to be made by the Commission. Mr Harding, for the applicant in the reinstatement hearing, stated that the reinstatement case to be heard in September 2000 did not exhibit any special circumstances sufficient for the Commission to exercise its discretion to permit legal representation during the case. Mr Harding viewed the jurisdictional question (ie the matter relating to wages received) as one which would be relatively easy to determine. One simply needed to review the contract in question to determine the point. It was conceded by Mr Harding that the question of constructive dismissal, while not a common feature in reinstatement hearings before the Commission, nevertheless was not unusual. With regard to the question of the potential for the respondent solicitor (the “respondent” in the reinstatement hearing) to be adversely affected in his profession were a finding to be made against him, Mr Harding responded as follows. Mr Harding said, in this instance, the solicitor concerned in fact ran a recruitment company which traded its services and it was not the case that the solicitor was working solely as a solicitor within that profession. In that regard, Mr Harding viewed the situation as not being dissimilar to that which confronted many respondents who appear before the Commission. Mr Harding also stated that there would be no expert witnesses called during the course of this case. In terms of the comments made by Mr Betros that the claim of the applicant could be “substantial”, Mr Harding understood the estimate of the claim to be around $10,000. It appeared that, at the conciliation conference, both parties were legally represented. The records show that, at that stage, the applicant recorded an objection to legal representation by the respondent were the matter to proceed to a formal hearing. That objection is now being tested before the Commission. Section 319 of the Industrial Relations Act 1999 (the Act) relevantly states at s. 319(2)(b)(iii):– “(b) for proceedings before the commission, other than proceedings under section 278 – . . . (iii) on application by a party or person, 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;”. This section is relied upon by Mr Betros and, in the alternative, he sought to rely upon s. 319(2)(b)(iv) of the Act which states – “(iv) on application by a party or person, the commission is satisfied the party or person can be adequately represented only by a lawyer;”. -- 1 of 2 -- 284 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 July, 2000 Are there any “special circumstances” in the matter listed before the Commission sufficient to permit legal representation in these circumstances? It appears to me, firstly, that a jurisdictional point may be raised at the commencement of the case in order to establish whether the applicant was eligible to pursue her reinstatement as a consequence of wages paid to her and, secondly, that the question of a constructive dismissal would arise. It seems that whilst these issues may not necessarily be complex, it is reasonable to accept that such issues often are difficult and could be better dealt with by legally qualified representatives. It has been put to me by Counsel for the applicant that his client would feel competent in representing herself at the reinstatement hearing. In considering this, it seems odd to me that, on the one hand at the conciliation conference the applicant sought the assistance of a lawyer and later at this hearing Counsel has been utilised, but on the other hand, at the reinstatement hearing the applicant believes that she can dispense with such legal assistance. From my perspective, the reinstatement hearing would require the use of greater skills than would be required at a conference. However, I accept that the applicant holds those views. Usually, at conciliation conferences, it is the unrepresented party who objects to the legal representation by the other party. After considering all of the issues, I accept that special circumstances exist in this matter sufficient for me to exercise my discretion to permit the respondent (in the reinstatement hearing) to be legally represented. Order accordingly, D.A. SWAN, Commissioner. Appearances:– Released: 5 July 2000 Mr A.C. Harding, instructed by Mr P. Johns of Gilshenan and Luton, for the Applicant. Mr P.G. Betros, of Russell and Co Solicitors, for the Respondent. -- 2 of 2 --