Anters v McInnes Wilson Lawyers Pty Ltd & Ors [2022] QIRC 358

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Anters v McInnes Wilson Lawyers Pty Ltd & Ors [2022] QIRC 358 PARTIES: Anters, Dawn (Complainant) v McInnes Wilson Lawyers Pty Ltd (First Respondent) And Seek Limited (Second Respondent) CASE NO.: AD/2021/50 PROCEEDING: Application in existing proceedings DELIVERED ON: 14 September 2022 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: 1. Pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld), the second Respondent is given leave to be represented by a lawyer. CATCHWORDS: HUMAN RIGHTS - JURISDICTION AND PROCEDURE - APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER - Complainant made complaint to the Queensland Human Rights Commission against the Respondents alleging contraventions of provisions of the Anti-Discrimination Act 1991 - complaint referred to the Queensland Industrial Relations Commission - application in existing proceedings by the second Respondent for leave to be given to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 - opposition by Complainant for leave to be given - whether leave should be given second Respondent to be legally represented having regard to s 530(4) of the Industrial Relations Act -- 1 of 8 -- 2 2016 – second Respondent given leave to be legally represented LEGISLATION: Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016, s 530 CASES: State of Queensland (Queensland Health) v Hume [2022] ICQ 001 Gambaro v Workers' Compensation Regulator [2017] ICQ 005 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 Reasons for Decision Introduction [1] On 22 January 2021, Mr Dawn Anters ('Mr Anters') filed a complaint in the Queensland Human Rights Commission alleging that the first Respondent and the second Respondent ('the Respondents') had contravened various provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). [2] On 30 September 2021, Mr Anters' complaint was referred to this Commission. [3] Prior to the second conciliation conference in this matter, by application filed on 2 August 2022 the second Respondent, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), made an application for leave to be given to them to be legally represented for all conferences and hearings before this Commission ('the second Respondents' application'). Mr Anters' objection to the second Respondents' application [4] Following the second conciliation conference on 4 August 2022, directions were issued providing Mr Anters with the opportunity to object to the second Respondents' application. [5] On 15 August 2022, Mr Anters emailed the Industrial Registry objecting to the second Respondents' application. Mr Anters opposes the second Respondents' application for the following reasons: • The second Respondent is an incorporated legal entity with in-house legal practitioners; -- 2 of 8 -- 3 • The first Respondent is a law firm represented by one of its principals who Mr Anters submits is a leading expert in employment and discrimination law which will thus assist the Commission; • Mr Anters, whilst an admitted legal practitioner, is not legally represented and cannot afford it, and found the presence of legal practitioners at the conciliation conference on 4 August 2022 intimidating; • The proposed practitioners are inefficient because in recent proceedings with Mr Anters in a tribunal in Western Australia the Respondents filed an interlocutory application seeking to strike out proceedings which was summarily dismissed. Mr Anters thus contends allowing the proposed practitioners to represent the second Respondent would complicate the process for the parties and Commission. The legislative provisions [6] The effect of s 530(1)(c) of the IR Act is that a party to proceedings, or a person ordered or permitted to appear or to be represented in proceedings, may only be represented by a lawyer if the Commission grants leave.1 [7] Section 530(4) of the IR Act provides: (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. Examples of when it may be unfair not to allow a party or person to be represented by a lawyer- • a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy • a person is from a non-English speaking background or has difficulty reading or writing [8] In State of Queensland (Queensland Health) v Hume,2 Merrell DP considered how s 530(4)(a) of the IR Act is to be construed:3 [36] Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.' 1 A lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007: Acts Interpretation Act 1954, sch 1 (definition of 'lawyer'). 2 [2022] ICQ 1. 3 Citations omitted. -- 3 of 8 -- 4 [37] Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act. [38] Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant. [39] By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings. [40] Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter. [41] Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness. [42] Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion. [43] The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings. [44] As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised. (Emphasis added) The second Respondent [9] The Second Respondent provided submissions addressing each of the grounds in s 530(4) of the IR Act. -- 4 of 8 -- 5 [10] In relation to efficiency, the second Respondent submits:4 • Mr Anters raises a multitude of factual and legal issues, which a legal practitioner would be better able to assist the Commission with by establishing the factual and legal context in which the complaint has arisen; • The second Respondent's proposed legal representation is familiar with the context in which the complaint was made, having already been present at the conciliation conference held on 4 August 2022, as well as assisting the second Respondent in defending a similar complaint raised by Mr Anters in another jurisdiction; and • The involvement of the second Respondents' legal representation has assisted and will continue to assist in progressing the matters efficiently and effectively. [11] The second Respondent submits they are unable to represent themselves because:5 • Notwithstanding its size, the second Respondent has a relatively narrow legal function, with no specialists in employment and discrimination law; and • The second Respondents' legal team are practicing in the capacity of commercial law. They are responsible for performing the legal function for the entirety of the second Respondents business, and thus have limited capacity to defend this matter. [12] In addressing the fairness between the parties, the second Respondent submits no unfairness will arise between the parties if the Commission allows the second Respondent to be represented because:6 • Mr Anters is a qualified legal practitioner and is thus well placed to understand the legal processes involved in his complaint, including but not limited to the application of the law to the issues in dispute; • The first Respondent is a well-resourced national law firm also represented by a legal practitioner. Specifically, Mr Christensen is a principal of the first Respondent, specialising in employment relations and defending claims of discrimination and harassment; • Mr Anters is aware that the second Respondent is being assisted with legal representation, including in matters in other jurisdictions, and has had ample opportunity to consider obtaining legal representation. The second Respondent submits that they should not be denied legal representation because Mr Anters has elected not to obtain legal representation;7 4 Industrial Relations Act 2016 (Qld) s 530(4)(a). 5 Ibid s 530(4)(b). 6 Ibid s 530(4)(c). 7 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079. -- 5 of 8 -- 6 • In circumstances where the complainant is a suitably qualified legal practitioner, and where the first Respondent is a law firm employing suitably qualified legal practitioners, the second Respondent would be unfairly prejudiced if it is not able to have legal representation; and • Contrary to Mr Anters suggestion, the involvement of Mr Christensen of the first Respondent is not sufficient to ensure its efficient resolution, as Mr Christensen is ultimately acting in the interests of the first Respondent. The second Respondent submits they should not be disadvantaged because the presence of an additional legal representative may be viewed by Mr Anters as intimidating in circumstances where the other parties automatically have the benefit of legal representation. Legal representation should be granted to the second Respondent [13] Subsequent to the objection to legal representation being made, on 1 September 2022, the first and second Respondents filed applications seeking to dismiss Mr Anter's substantive application. Mr Anters' allegations of discrimination in his substantive application contribute to a complex factual matrix between himself and the first and second Respondents. The substantive matter was already sufficiently complex to warrant legal representation, but the additional interlocutory applications to dismiss the substantive proceedings add even greater levels of complexity. [14] Further, the first and second Respondent have different factual circumstances contributing to their involvement in the matter, as well as different interests to consider. The submission by Mr Anters that the second Respondent can somehow rely on the first Respondent's legal expertise entirely misunderstands the diversity of the interests of each Respondent and how those interests are represented. [15] I note also that, contrary to the speculation by Mr Anters, the second Respondent has a small legal team (none of whom are in any way experienced in employment or discrimination law). In a matter of this nature, expert understanding of the relevant legal principles will undoubtedly aid in the efficiency of conduct of proceedings. [16] For two reasons, I reject Mr Anter's submission directed at the individual practitioners who continue to represent the second Respondent in proceedings against him. [17] Firstly, I am not prepared to give any weight to Mr Anter's characterisation of the conduct of those practitioners in proceedings before another court in the absence of proper particulars and a copy of any reasons delivered by the judicial officer in question. As an aside I would also observe that the submissions of Mr Anters, while not fully clear, would seem to suggest a lack of professional competence on the part of those practitioners. Mr Anters certainly suggests that the named practitioners would add to the inefficient conduct of the matter which is, of itself, a serious slur on their professional characters. As a legal practitioner himself, Mr Anters would be well advised to have careful regard -- 6 of 8 -- 7 to his professional obligations with respect to adverse statements about other practitioners.8 [18] Secondly, the discretion granted under s 530 of the IR Act is not a discretion to allow or refuse representation of nominated legal practitioners. It is a discretion limited entirely to consideration of whether a matter is amendable to legal representation. The identity of a legal practitioner is irrelevant. [19] I have also had regard to the further submissions filed by Mr Anters requesting the Commission to consider the financial disparity between the parties when addressing the 'fairness' element pursuant to s 530(4)(c) of the IR Act. Mr Anters summarised his taxable income for the first seven financial years, comparing it to the revenue of the second Respondent since 2017, and reiterated that he cannot afford legal representation. I fail to see how this is relevant to the question of fairness in circumstances where Mr Anters is himself a legal practitioner. Further, even if I considered his financial situation somehow placed him at a disadvantage, Mr Anters provides no submission or evidence as to his attempts to overcome this disadvantage by e.g. utilising the services of a community legal service or Legal Aid. [20] Further, I note that Mr Anters feels 'intimidated' by appearing against four lawyers. Aside from this being a somewhat awkward submission from someone who is also a legal practitioner, it ignores that fact that even if I was to uphold his objection, the nature of the Respondents and the personnel conducting the proceedings for them means that Mr Anters will continue to be required to appear with multiple lawyers appearing for the Respondents. [21] Despite the fact that Mr Anters is a legal practitioner, he repeatedly seeks to portray himself as disadvantaged by the involvement of expert legal practitioners appearing for the Respondent. While those practitioners may have greater expertise than Mr Anters, they are no more or less legal practitioners than him. Again, I note the discretion in s 530 of the IR Act is concerned with legal representation, not the qualifications or experience of the individual representative, although I consider that expertise will be relevant when considering whether it will make conduct of a matter more efficient. [22] In different circumstances I might be inclined to have some small degree of sympathy for Mr Anters (though not sufficient to alter my views on representation). But it is matter of record that Mr Anters has initiated multiple actions of this type in multiple jurisdictions throughout Australia. Clearly Mr Anters has an appetite for this type of litigation and has no doubt found himself already gaining experience in the legal principles applicable to discrimination complaints. In that respect it is Mr Anters who has the unfair advantage over the in-house corporate lawyers employed by the second Respondent. [23] To the extent that Mr Anters finds himself impecunious and unable to afford expert representation, and to the extent that Mr Anters feels intimidated by the legal expertise his own proceedings compel him to confront, I consider the comments of President 8 See for example Rule 32 of the Australian Solicitors Conduct Rules 2012. -- 7 of 8 -- 8 Martin (as he then was) are apposite when he observed that a lack of legal representation is a misfortune not a privilege.9 [24] Mr Anter's objection to the second Respondent's application to be legally represented borders on vexatious. At the very least his objection reveals an embarrassing lack of insight for a legal practitioner. [25] In the circumstances where Mr Anters is a legal practitioner and where the first Respondent is a law firm represented (as of right) by one of its principals with expertise in employment and discrimination law, it seems to me that it would be palpably unfair to compel in-house corporate lawyers to represent the second Respondent in proceedings that they did not initiate, and about which they have no expertise. I do not consider that Mr Anters will suffer any unfairness if the second Respondent has legal representation. [26] In all of the circumstances I consider that allowing the second Respondent to be legally represented will aid in the efficient conduct of the matter and further, that in so allowing, there will be no unfairness to Mr Anters. [27] Pursuant to s 530(1)(c) of the IR Act, I give leave for the second Respondent to be represented by a lawyer. Order [28] I make the following order: 1. Pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld), the second Respondent is given leave to be represented by a lawyer. 9 Gambaro v Workers’ Compensation Regulator [2017] ICQ 005 at [14]. -- 8 of 8 --