Daly v A Mart Sports Pty Ltd [1999] QIRC 228 (1999) 162 QGIG 207

206 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 October, 1999 I) l 29 October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 207 ###############lt########lt########lt##########################ltlt###lt##############lt####################lt#####lt############### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Induserial Relations Ac! /999- s. 3 I 9 representation of parties Mark Anthony Daly AND A-Mart All Sports Pty Ltd (No. B967 of .1999) COMMISSIONER BROWN 15 Oetober 1999 Dismi�sal - Temu nation - Representation - No Consent lo Legal Representatio n - Application for Legal Representation - Application Dismissed. DECISION An application has been made by Macrossan & Amier, Solicitors (the applicant) for the Commission to allow legal representation of Mark Anthony Daly m his dismissal application against A-Mart All Sports Pty Ltd. The applicant argued pursuant to s. 319(2)(b)(iii) and (iv) of the lnd11s1ria/ Relations Acl 1999 (the Act) that:- "There are special circumstances that make it desirable for the applicant to be legally represented, and in particular: (i) the nature and complexity of the matter; (ii) the capacity of the applicant to represent himself: (iii) that tTOss-examinatio n is likely to be required; (iv) that questions of law are likely to arise ; (v) the Applicant re sides in Mackay and is unlikely to find an experienced industrial advocate in Mackay." ::ODMA\GRPWlSE\QIRC -DOM.JRO·POl.GENERAL!:29824.1 -- 1 of 2 -- 208 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 October, 1999 The applicant r elied on the sum of the foregoing arguments 10 conclude that the applicam can be adequately represen ted only by a lawyer. The respondent in opposing the application relied on: their right to object uoder s. 3I 9(2)(b)(ii); their belief that no special circumsLances exist of the type envisaged in s. 319(2)(h)(iii): their assumption that the applicam can be adequately repr eserned by himself pursuant 10 s. 319(2)(b)(iv); • their further c ont ention that the applicant could be represemed by an agen1 other th.an a lawyer, again referring to s. 319(2)(b)(iv): !he respo ndent's view that costs would increase as a result of the involvement of a lawyer: and • the respondent's view that the dura tion of the hearing would l engthen in the event that a lawyer was allowed to influence the matter. Section 319(2)(h)(iv) states that a party or person may be represented in proceeding before the Commission by a la wyer if, and only if - on application by a party or person, the Comm ission is satisfied Lhe party or person can be adequately represen te.d only by a lawyer. Section 319(2)(b)(iii) state s that a pany or person may be represented in proceeding before the Commission i f , and only if - on application by a party or person, the Commission is satisfied, having regard to the m ailer the proceedings relate 10, that there are ,-pecial circumstances that make it desirable for the party or person to be legally repr esented. It is clear in (iii) that the Commission !lli!1! be satisfied that. special c ircumstan ces exist regardi ng the ™ the proceeding relates to. The filll!.!:!_ to be determined is whether or nor the rein statement of an em ployee by his former employer should occur. In this light and considering the fact that the overwhelming number of applicat.ions dealt with in this jurisdiction are dealing with alleged unlawful dismissals, the m atter it self does nor fall into the category of ,pecial circum st.ances, i ndeed it is the most common issue dealt with by this Comn11ssion. Such a matter would normally nor be assessed as so complex as to suggest that the applicant can be adequately represented only by a lawyer. It seems to me that the question then becom es whether or not, in the heanne of this matt<'r, it is likely that special circumStances or complicated matters of law may arise. The applicant stated that the dismissal was of a c.-on siructive nature, thus complicating the matter. The respondent disagreed sa ying tha t they accepted that the applicant wa s clearly dismissed and no complicated arguments relating to construction would be required. I agree with the respondent. Section 319(4) allows the Commission to consider a ran ge of issues (but does not limit conside ration to these issues) in connection with s. 3 I 9(2)(b)(iii) and (iv) some of which have be en raised by the applicant. 'Ibey are- the nature and complexity of the matte r. I find that there i s no evidence to suggest that the nature or complexity of this matter will differ to any significant extent from the myriad of other wrongful dismissal applications dealL with by this Tribunal wit.h the parties assisted by lay advocates. • the capacity of the applicant to repr esent himself. I accept the argument t.hat the applicant is unable to adequaLely represen t h imself. However, I also accept the respondent's argument tha t a lawyer is not the only alternate method of representation in lhese matters. An experienced induStiial advocate would, in my vi ew, satisfy the term ··adequate" as it is used in s. 3 I 9(2)(b)(iv) in the normal course of a wrongful dismissal matter. The applicant also presented as an argument that ··cross-examina tion is likely to be required". 1 must agree with this contention, however, the issue for consideration pursuant 10 s. 3 i 9(4)(d) is nOI whether or not cross-examination 1s likely to be requir ed hm importantly ·'the cross-examrnation likelv10 be required". Given that this subsection relates back to s. 3J9(2)(b)(iii), tt is my view tha t the Commission mu;1 consider whether or not the cross-e xamina tion likely to be required falls into the category of special circumstance s. I find !hat there has been n o evidence from the applicant that this cr oss-examinatton will be in any substantial way different to 0lher c ross-examinat.ion s conducted by lay advocates regularly in this Tribunal and further in so far as s. 319(4)(d) relates to s. 3 I 9(2)(b)(iv), l am unable to fi nd tha t the likely cross-examination can be ade-yuatel y conducted only hy a la wyer. The applican t argued that ··question s of law are likely to arise". This again is accepted, however, the Act refers to ··the questions of law likelv to arise" and agai n its in the comext of firstly, considering "special circumstances" in s. 319(2)(h)(iii) a nd secondly, whether, ha ving r egard to the que stions of Jaw that might arise, only a lawyer could ade -quately represen1 the applicant as required by s. 3 l9(2)(b)(iv). I do not accept tha t the legal questions that the applicant sugge sts are likely to arise are so differen t from th ose that arise in similar m auers before !he Commission on a regular basis that the y fall into the ··special circumstances" category mentioned in s. 3J9(2)(b)(iii). With respect to s . 319(2)(b)(iv), I believe that an experienced industrial advocate would be adequate to han dle any legal questions that might arise in the nOJmal cou rse of a mailer such as this. The applicant raises the Jack of expe rienced industrial advocates in Mackay as part of their argumenl. Jo that the matter is to be heard in Mackay there may be an argument that c.osts to the applicant would increase owing to the need 10 import a n advocate, !possibly from Brisban e, thus incurring additional coSL� of airfares , accommodation and associat ed incidentals. This argumem suggests that the cost to the applicant might be gre ater using an industrial advoca te as opposed to a lawyer. I find that Mspite rny questioning no firm evidence was presented to supp◊rt such a contemion. 29 October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 209 There was also no evidence from e ither pany suppor ting the argum ent that the proceedings would be lengthened as a result of the applicant berng either legally repre sented or r epresented by an experienced industrial advocate. Also. as the scheduled hearing dales are 22, 23 and 24 Novem ber I 999, over 5 weeks away, the applicant has ample time 10 engage and brief an industrial advocate without being disadvantaged . The applican t presented Exhibit I , an Australian Industrial Relations Commission Full Be nch decision (Matter C3135J o f 1998) and drew th� Commission's attention to comments made i n that decision as 10 how the i ssue of legal representation is de,,lt with at the Federal kvel and contended that this Commission should act si milarly. The maner the decision reforre.d to was an appeal againSt the granting of a n extension of time etc. in a dismissal matter and the specific wOJds reforrtd to by the applicant highlighted on page 3 of the decision were:- ··Jn the normal course of event s an ordrnary s . J 70CE applicant would be allowed legal representation pursuant to s. 42(3)(c)." This may be so to that jurisdiction, however. a different approach ha s historically been adopted by this Commission. It is true that recent amendmen ts 10 the Act have seen a movement towards the wording to s. 42(3)(c) of the Federal Act but lhey remain substantially differ en t in that the Federal Act makes no distinction between ··Coun sel, Solicitor or Agent" and d.::als with all three together and equally, while the Queensland Act gives the unquestion ed right of appearance to an agent ins . 3J9(J)(a). Significantly. the Act in Queensland refers only to legal repre sentation in s. 3 I 9(2)(b){iii) and 10 a lawyer in s. 3 J 9(2)(b)(iv) clearly leaving a.$ an ahernatiw a lay advocate or other agem as referred 10 in s. 319(l )(a). The appltcan1' s claim that th e Queensland Act now ••mirrors Federal Legislation" is palpably incorrect. Having consider ed both the '-'Titten _and oral sub�iss io ns of the partie s and having personally informed myself on i ssues broader than the example.s contarned III s. 3 I 9(4), I am not satrs fi ed that havrng re gard to the ma tte r the pr oceedings relate to that there are special circum stances that make it dc�irabk for the applicant to be legally repr esen ted nor am I sa tisfied that the person can be adequately represen ted in this mauer only by a lawyer. The application is dismi.�sed. Order accordingly. D.K. BROWN. Commissioner. Released: I 5 October 1999 Appearances:- Mr T. Sprey of Quinlan Millar & Treston as town agents for Macrossan & Amiet solicitors for the applicant. Mr D. Pratt for the Queensland Retail T raders and Shopkeepers Association (Industrial Organization of Employers) on be half of A-Mart All Sports Ply Ltd. ########################################################################################################################### -- 2 of 2 --