Erez v Workers' Compensation Regulator [2025] QIRC 246

State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118

Wanninayake v Queensland (Dept of Natural Resources and Mines) [2014] QIRC 079

• [1] On 11 April 2025, Ms Adi Erez ('the Appellant') filed an appeal pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act') against a decision by the Workers' Compensation Regulator ('the Respondent') to reject the Appellant's application for compensation.

• [2] On 14 April 2025, the Respondent, sought leave, pursuant to s 552B of the WCR Act, to be legally represented in these proceedings.

• [3] On 15 April 2025, Vice-President O'Connor issued an order that leave for the Respondent be granted pursuant to s 552B(b) of the WCR Act.

• [4] On 2 June 2025, the Appellant sent an email to the Registry advising of her objection to the order granting the Respondent's legal representation in this matter.

• [5] On 17 June 2025 the Appellant filed a 'Form 4 - Application in existing proceedings' and Affidavit material outlining multiple submissions in relation to the proceeding. Part of the application and affidavit material sought an order removing the grant of leave that the Respondent be legally represented.

• [6] After a telephone mention held on 23 June 2025, a second Further Directions Order was issued directing parties to provide submissions in respect of the Appellant's application, with order 3 outlining the decision would be dealt with on the papers.

• [7] Section 552B of the WCR Act relevantly provides:

552B Legal representation at appeal or conference

A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with -

• [8] In Peck v Workers' Compensation Regulator ('Peck'), Deputy President Merrell outlined the following when considering the discretion that may be exercised pursuant to s 552B:[1]

Because the discretion is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statue, some implied limitation on the factors to which the Commission may legitimately have regard. If there is nothing in the subject matter, scope and purpose of the statute that suggests some implied limitation on the matters to which the decision maker may legitimately have regard, it is largely for the decision maker, in light of the matters placed before it by the parties, to determine which matters are relevant and the comparative importance to be afforded to those matters.

My preliminary view is that there is nothing in the subject matter, scope and purpose of the Act that immediately suggests some implied limitation on the matters to which I may legitimately have regard in determining whether or not to grant leave to a party to be represented by a lawyer.

Thus, it is for me, in light of the matters referred to in the parties' submissions, to determine which matters are relevant and the comparative importance to be afforded to those matters as to whether or not I exercise my discretion to give leave to the Regulator to be represented by a lawyer.

• [9] In accordance with the reasoning in Peck, the submissions of the parties will be considered to determine the relevant considerations and comparative importance to determine whether the discretion to grant leave should be exercised.

• [10] The Appellant refers to paragraphs 17 to 17.5 of her Affidavit filed on 17 June 2025 in her submission outlining her objection to the Respondent being granted leave to be legally represented.

• [11] Paragraphs 17 to 17.5 of the Appellant's Affidavit outline the chronology of the Respondent's request for leave to be legally represented and the subsequent order by the Vice-President granting leave.

• [12] The Appellant's submissions did not contain submissions of a substantive nature outlining the reasons that the Appellant opposes the Respondent's request for leave in accordance with s 552B.

• [13] The Respondent submits that while the provisions in s 530 of the IR Act arguably have no effect to the Commission's decision on whether to grant leave for legal representation when there is an express provision through s 552B of the WCR Act, the principles in s 530 are equally applicable to applications made under s 552B.

• [14] The Respondent submits that this appeal is likely to involve complex questions of fact and law and accordingly the Respondent would be required to investigate and assess complex factual and medical evidence.

• [15] Additionally, the Respondent considers that the complex issues which require determination by the Commission in accordance with s 32 of the WCR Act are as follows:

1. Did the personal injury arise out of, or in the course of, the Appellant's employment?

1. Was the Appellant's employment a significant contributing factor to the personal injury?

1. Is the injury excluded from an entitlement to compensation by virtue of any of the following circumstances:

1. Reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

1. The worker's expectation or perception of reasonable management action being taken against the worker;

1. Action by the Regulator or an insurer I connection with the worker's application for compensation?

• [16] The Respondent considers that the Commission would be assisted by Counsel given their experience in appeals involving self-represented appellants, as in this case, and their ability to examine the evidence and identify the crux of the appeal.

• [17] The Respondent further submits that although the Appellant has not yet filed a Statement of Facts and Contentions, the Review Decision dated 25 March 2025 is 17 pages long and addresses numerous factual events concerning the Appellant's employment with Access Community Housing Company Ltd ('ACHC'), and whether these events involved management actions and, if so, whether that action was reasonable.

• [18] Moreover, the Respondent highlights that the Review Decision indicates that between August and October 2024, when the Appellant claims to have sustained a psychological injury, ACHC was conducting a performance review and addressing concerns about her work raised by management and co-workers.

• [19] The Respondent considers that resolving these issues requires assessment of both fact and law where the Commission will benefit from structured submissions by Counsel applying relevant legislation, which will also assist the Appellant.

• [20] Moreover, the Respondent submits that Counsel will provide assistance in the form of independence, forensic legal skills and overriding obligations to the Commission.

• [21] In considering fairness between the parties, the Respondent refers to observations made by Vice-President O'Connor in State of Queensland (Department of Premier and Cabinet) v Dawson ('Dawson'), in reference to Industrial Commissioner Neate in Wanninayake v Queensland (Dept of Natural Resources and Mines):[2]

The fact that one party, either by choice or circumstances, is not represented by a lawyers no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.

To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.

• [22] The Respondent submits that although the Appellant is not presently legally represented, the Respondent does not oppose her obtaining representation.

• [23] The Respondent notes they must act in accordance Model Litigant Principles, which safeguard against unfairness rather than operate oppressively and that it is also common for the Respondent's Counsel to identify any potential grounds for compromise of an appeal that may favour the Appellant.

• [24] In the substantive matter the Commission will be required to determine whether the Applicant sustained a personal injury, whether the injury arose out of or in the course of employment, and whether employment was a significant contributing factor to the injury.

• [25] In addition, the Commission will be required to consider whether the exclusions in s 32(5) apply, specifically whether the injury arose out of or in the course of management action, and if so, whether management action was reasonable and taken in a reasonable way.

• [26] It appears from the Review Unit decision from which this appeal arises that questions of fact regarding the telephone conversation of 2 September 2024 and management's subsequent response along with workplace performance feedback will be matters in issue at hearing. Consideration of medical evidence and whether the causative factors can be considered management action will be required along with an assessment of the reasonableness of management action. The Commission will benefit from the involvement of legal representatives given the complexity of these matters.

• [27] When considering the benefit of private Counsel in Peck, which involved similar issues to this matter, Deputy President Merrell stated the following:[3]

... The forensic skills of private counsel include concisely identifying the relevant issues for the determination of disputed matters in a proceeding, to lead only relevant evidence about such matters and to cross-examine witnesses only on relevant matters so as to permit the Commission to efficiently determine the ultimate question that needs to be determined. In addition, counsel can significantly reduce the time for the hearing of an appeal by addressing their client's submissions only to relevant matters, by concisely summarising the evidence and the law and by efficiently assisting the Commission to determine the issue in contention.

• [28] The Commission will be required to make findings relating to factual matters in dispute along with questions of law, and I am satisfied that the efficient resolution of these matters will be assisted by legal representation.

• [29] On the question of fairness, I note the observation by Vice-President O'Connor in Dawson that balancing fairness between parties can be aided through proper case and courtroom management.[4] In my view, the involvement of counsel in this matter will assist in the management of the proceeding, noting the paramount duty of Counsel to the court and administration of justice.

• [30] In circumstances where I am satisfied that legal representation will assist in the efficient determination of the appeal and that fairness can be maintained between the parties, I am not persuaded that an order should be made revoking the grant of leave.

• [31] For the foregoing reasons, I decline to revoke the order granting leave to the Respondent to be represented by a lawyer.

The Application in existing proceedings to revoke the grant of leave for the Respondent to be represented by a lawyer in accordance with s 552B(b) is dismissed.

[1] [2022] QIRC 189 ('Peck') [14] - [16].

[2] [2021] QIRC 118 ('Dawson') [25] citing Wanninayake v Queensland (Dept of Natural Resources and Mines) [2014] QIRC 079, 6-7.