Gardiner v Star Track Express Pty Ltd & Ors [2025] QIRC 121

Rintoul v State of Queensland and Ors [2014] QCAT 102

Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16

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

State of Queensland (Queensland Health) v Hume [2022] ICQ 1

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC O79

Warrell v Walton [2013] FCA 291

• [1] Mr Phillip Gardiner made a complaint to the Queensland Human Rights Commission against Star Track Express, Mr Robert Browning (employed by Star Track Express) and Mr Fred Najm (a former employee of Star Track Express). The complaint, which alleges various breaches of the Anti-Discrimination Act 1991 (Qld) ('the AD Act'), was referred to the Queensland Industrial Relations Commission ('the Commission') on 7 June 2024 and allocated to me for case management and conciliation conferencing.
• [2] Star Track Express and Mr Robert Browning ('Star Track Express') have sought leave to be legally represented, filing the required Form 101 and Affidavit on 27 March 2025.
• [3] Mr Gardiner opposes the request in his Form 102 response filed on 23 April 2025. Mr Gardiner is currently self-represented, having had representation by Supportah Australia Pty Ltd withdrawn, and his subsequent attempts to find replacement representation being unsuccessful.[1]
• [4] Mr Najm is not represented by Star Track Express or otherwise represented.
• [5] For the reasons that follow I have decided my discretion is enlivened and should be exercised in favour of granting leave for Star Track Express to be legally represented.

• [6] Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') establishes when representation may be available to parties in proceedings before the Commission (other than a Full Bench) where all parties consent,[2] or where the Commission gives leave.[3]
• [7] Section 530(4) of the Act provides (emphasis added):

(4) An industrial tribunal may give leave under subsection (1) only if -

(a) it would enable the proceeding 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 the party's or person's interests in the proceedings; 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 organisation or another person with experience in industrial relations advocacy
• A person is from a non-English speaking background and has difficulty reading or writing

(5) For this section, a party or person is taken not be represented by a lawyer if the lawyer is -

(a) an employee or officer of the party or person; or

(b) an employee or officer of an entity representing the party or person, if the entity is -

(iii) another entity that only has members who are employers.

(a) means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and

(b) includes conciliation being conducted under part 3, division 4, or part 5, division 5A by a conciliator.

relevant provision, for a proceeding before the commission other than the full bench, means -

(a) chapter 8; or

(b) section 471; or

(c) chapter 12, part 2 or 16.

• [8] The question for my determination is whether to exercise my discretion to grant leave for Star Track Express to be legally represented in these proceedings pursuant to s 530(1)(e)(ii) of the Act.
• [9] Davis J, President, recently explained the proper construction of s 530 of the Act on appeal in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay') as follows:[4]

[30] Section 529(1)(a) prohibits representation of a party by a lawyer except in accordance with s 530. By s 530(1)(e), proceedings before the QIRC may involve legal representation only by leave. The bases upon which leave may be given are prescribed by s 530(4).

[31] The circumstances upon which a lawyer may appear before the QIRC are governed by ss 529 and 530 of the Act. If the discretion arises under s 530(4) to give leave to a party to be represented by a lawyer, then the discretion falls to be exercised. There are no presumptions as to how the discretion is exercised. However, no executive or judicial discretion vested by an Australian statute is unfettered. The discretion is limited and circumscribed by the purposes for which it was bestowed.

[32] Section 530 has a typical structure. The factual circumstances prescribed by each of ss 530(4)(a), (b) and (c) are jurisdictional facts, the establishment of which empowers the QIRC to exercise a discretion to grant leave to a party to be legally represented.

[33] Subsection (4)(a) requires the QIRC be satisfied that legal representation "would enable the proceedings to be dealt with more efficiently" if lawyers represent a party. However, that assessment is limited. It is conducted "having regard to the complexity of the matter."

[34] The "matter" is the controversy of the principal proceedings. The "proceedings" are the principal proceedings ...

(b) identify how, "having regard to the complexity," having a party represented by lawyers would "enable the proceedings to be dealt with more efficiently."

[36] Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness. However, the assessment to be conducted under each of the two subsections is quite different.

[37] Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation. Legal representation "may" be allowed where it would be unfair to deny it "because the party or person is unable to represent the party's or person's interests in the proceeding." Therefore, the first question is whether the party or person is "unable to represent [their] interests in the proceedings." If the answer to that question is in the affirmative, then the use of the word "because" requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation.

[38] Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings. Legal representation "may" be allowed where it would be unfair not to allow legal representation to the party. However, as with s 530(4)(a), the assessment is limited. The assessment of whether it would be "unfair" is made "having regard to fairness between party or person, and other parties or persons in the proceedings."

• [10] I must determine whether any jurisdictional facts exist that enliven my discretion to grant leave for legal representation. At least one of these jurisdictional facts must be established.
• [11] Davis J, President, discussed the nature of jurisdictional facts in Sillay as follows:[5]

[40] To determine the nature of the review on appeal, it is necessary to determine the nature of the jurisdictional fact. That depends on the construction of the statute. A jurisdictional fact need not be an objectively defined and identifiable fact. It may be some other matter which is identified by the statute as the catalyst to the exercise of power.

• [12] Star Track Express submits the matter is sufficiently complex to warrant the grant of leave.[6] They point to the alleged multiple breaches of the AD Act identified by Mr Gardiner in his SOFC as increasing the complexity of the matter, which they say is compounded by the fact there exists 'significant factual dispute and an extended time period.'[7]
• [13] Three key issues identified by Star Track Express as increasing the complexity of the matter are as follows:[8]

By way of example, the complexity of this matter relates to:

(a) the SOFC raising several serious allegations of matters which are inherently complex (including discrimination, sexual harassment and victimisation) and may attract civil penalties;

(b) there being three respondents, one of which is a corporate entity, and it not being clear (in the SOFC) which respondent is alleged to have contravened the identified legislative provisions (sections 10, 119 and/or 130 of the AD Act) or any other section of the AD Act;

(c) whether the First Respondent is vicariously liable for the conduct of the other Respondents (notwithstanding this is not specifically pleaded in the SOFC).

• [14] Star Track Express refer to the decision of the Queensland Civil and Administrative Tribunal in Rintoul v State of Queensland and Ors in which the AD Act was characterised as a 'difficult beast to master',[9] explaining that this inherent complexity results in that Tribunal 'usually' allowing parties to obtain legal representation.[10]
• [15] However, it is important to note that decisions granting or refusing leave for legal representation "cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted."[11]
• [16] Star Track Express overall submit that the Commission will benefit from legal representation to 'assist with the application of these complex legal principles and consideration of relevant defences'.[12]
• [17] Star Track Express also state that the material in the matter is likely to be voluminous, given the number of allegations made against them, the number of witnesses listed by the Complainant and the complex nature of allegations of discrimination, harassment and victimisation. Anticipating cross-examination at some point in proceedings, Star Track Express submit that legal representation will assist in ensuring the Commission is able to focus its attention only on relevant issues of fact and law in dispute.[13] In light of the finding in Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council that experienced legal representatives are effective in identifying the 'real issues' in dispute,[14] Star Track Express argue that legal representation will assist in examination and cross-examination, and ensure the pertinent questions are posed.[15]
• [18] As regards efficiency considerations, Star Track Express highlight the professional duty owed by legal practitioners to the Commission and the Courts in ensuring efficient administration of proceedings.[16] It is further contended by Star Track Express that the timeliness of the proceedings will be enhanced by the granting of legal representation.[17]
• [19] Legal representation also ensures that skill is utilised when drafting submissions, and well-drafted submissions are of assistance to the Commission in complex matters as they can accurately identify and describe relevant issues.[18]
• [20] Star Track Express overall submit the above considerations would enable the proceedings to be dealt with more efficiently, having regard to the complexity of proceedings.[19]
• [21] Mr Gardiner's submission regarding the issue of complexity and effectiveness is extracted below:[20]

6. While Mr Gardiner acknowledges that this matter seems complex due to the Statement of Facts and Contentions filed on 10 February 2025, Mr Gardiner believes once the amended and detailed SOFC is submitted this matter will become transparent regarding the allegations of Section 10 (direct discrimination), section 119 (sexual harassment) and section 130 (victimisation) of the AD Act 1991.

7. While Mr Gardiner and the second respondent do not have any experience or training in adversarial proceedings, Mr Gardiner believes once Star Track Express receive the amended SOFC they should be able to represent themselves effectively against the allegations.

Efficiency and Complexity - a matter of judgement

• [22] Davis J, President, relevantly outlined in Sillay the considerations imported by s 530(1)(a), and highlighted the discretionary nature of the required judgement:[21] (citations omitted)

[48] Section 530(1)(a), as already explained, requires (relevantly, here) the QIRC to consider "the complexity of the matter", the potential involvement of lawyers, and then weigh up any efficiencies to be gained against the complexity. That consideration, in my view, brings to bear the making of a judgment about which different minds may differ and is therefore a discretionary judgement as explained in Norbis v Norbis.

• [23] In State of Queensland (Queensland Health) v Hume,[22] DP Merrell made clear that consideration of complexity does not mean the matter itself must be complex or comparatively more complex than other matters when determining if legal representation is warranted.
• [24] I agree with Star Track Express that the substantive matters in this complaint are complex, amplified by the challenges for Mr Gardiner in clearly articulating the case to be answered against the requirements of relevant law and direction of the Commission. While I am not the ultimate decision-maker in this matter, it is clear from a case management perspective that efficiency will be derived from at least one of the parties being legally represented.
• [25] I note Mr Gardiner's submission that the revised SOFC due to be filed in August 2025 will clearly articulate the matters of fact and law to be addressed, however do not consider this alters the overall and ongoing efficiency to be derived from Star Track Express being represented.
• [26] I conclude greater efficiency will be derived from legal representation assisting to ensure proceedings remain focussed on issues of fact and law and that both the evidence and submissions will be directed towards the issues the Commission must ultimately decide.
• [27] Having established the jurisdictional fact set out in s 530(4)(a) of the Act, my discretion to determine whether to grant leave is enlivened. For the reasons set out above in establishing the jurisdictional requirement I find it also weighs towards exercising my discretion in favour of granting leave.

• [28] While there is no need for me to establish either of the fairness requirements as jurisdictional facts, I consider the fairness questions to be relevant to the ultimate exercise of my discretion.
• [29] In State of Queensland (Department of Premier and Cabinet) v Dawson, O'Connor VP relevantly accepted that 'fairness is not an abstract concept'.[23] The goal of the Commission is to avoid 'practical injustice' occurring in the proceedings.[24]

• [30] Star Track Express makes various submissions in support of its contention that it would be unfair to them to not be allowed to be legally represented. This includes a need to rely on internal resources, which would be unfair even though they are a large corporation (who employs lawyers), further efficiency benefits to themselves and the Commission and the proceeding would be lost, and much of the preparatory work had been done by external lawyers which would be a disadvantage.[25]
• [31] Mr Gardiner makes no specific submission regarding the capacity of Star Track Express to represent itself should leave not be granted, other than to suggest if they are confident about the merits of their case legal representation should not be necessary.[26] This submission is misconceived as it incorrectly links the rights of each party to seek to be legally represented with prospects of success.
• [32] The actual test to be considered is outlined above by President Davis:[27] (citations omitted)

Legal representation "may" be allowed where it would be unfair to deny it "because the party or person is unable to represent the party's or person's interests in the proceeding." Therefore, the first question is whether the party or person is "unable to represent [their] interests in the proceedings." If the answer to that question is in the affirmative, then the use of the word "because" requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing that leave to be granted.

• [33] Noting that Mr Browning is already represented by Star Track Express I do not accept that Star Track Express (and Australia Post) would not have the capacity to represent its own interests in the proceeding if needed. At first conference on 18 June 2024, Star Track Express was represented by an in-house legal representative who described their role on the record as in-house legal counsel for Australia Post, representing Star Track Express and Mr Robert Browning.[28] Moreover, another representative of Star Track Express consistently involved in proceedings is a corporate lawyer for Group Legal, Australia Post.
• [34] The efficiency arguments raised are not directly relevant to this factor and have been considered and accepted in relation to my consideration of complexity above. The convenience factors identified do not rise to the level of practical injustice for Star Track Express.
• [35] I weigh this fairness factor neutrally in relation to its impact on the exercise of my discretion to grant leave.

• [36] Star Track Express submit it would not be manifestly unfair between the parties to allow legal representation, suggesting that, to the contrary, all parties will benefit from the increased efficiency that would flow from having legal representation present in proceedings. They refer to the following extract from Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake'),[29] as considered by Hartigan DP in French v Bundaberg Regional Council:[30]

...competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.[31]

• [37] Mr Gardiner argues the fact Star Track Express is equipped with the resources to obtain legal representation renders it unfair to grant leave for legal representation. Mr Gardiner explains this point further, stating:[32]
  • It is unfair due to his own limited knowledge and understanding regarding industrial law, law jargon and the legal processes.
  • He has difficulties with reading and writing.
  • He has exhausted every avenue to procure legal representation for this matter to no avail.
• [38] The commentary of Neate IC in Wanninayake,[33] as cited by O'Connor VP in State of Queensland (Department of the Premier and Cabinet) v Dawson,[34] is relevant to consideration of the arguments advanced by Mr Gardiner above:

The fact that one party....is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases...

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.

• [39] While I consider that Star Track Express would have capacity to represent itself if necessary and Mr Gardiner would be aided by the legal representation he has sought unsuccessfully to obtain since June 2024, it does not follow from either of those circumstances that fairness dictates that Star Track Express should not be granted leave. Further there are the already accepted benefits to the conduct of the proceeding that would benefit all parties and the Commission.
• [40] While there is no doubt being legally represented will be of benefit to Star Track Express I do not accept granting them leave impacts fairness in these proceedings to the extent that would weigh in favour of not granting leave.

• [41] Having established the jurisdictional fact set out in s 530(4)(a) of the Act, my discretion to determine whether to grant leave is enlivened. Having weighed efficiency and fairness considerations I will exercise my discretion in favour of granting leave to be legally represented.
• [42] I order accordingly.

1. Leave is granted for the First and Second Respondents to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

[1] The Commission was left to inform Mr Gardiner that his representatives had withdrawn from the proceeding.

[2] Industrial Relations Act 2016 (Qld) s 530(1)(e)(i).

[3] Industrial Relations Act 2016 (Qld) s 530(1)(e)(ii).

[4] [2024] ICQ 16.

[5] [2024] ICQ 16.

[6] Submissions of Star Track Express, filed 27 March 2025, [9].

[9] [2014] QCAT 102, [14] (Stilgoe SM).

[10] Submissions of Star Track Express, filed 27 March 2025, [13].

[11] Warrell v Walton [2013] FCA 291, [24] (Flick J).

[12] Submissions of Star Track Express, filed 27 March 2025, [14].

[13] Submissions of Star Track Express, filed 27 March 2025, [15]-[18].

[14] [2018] QIRC 132, [12] (Bloomfield DP).

[15] Submissions of Star Track Express, filed 27 March 2025, [18].

[20] Submissions of Mr Gardiner, filed 23 April 2025.

[21] [2024] ICQ 16, 17.

[22] State of Queensland (Queensland Health) v Hume [2022] ICQ 1, [40].

[23] State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118, [24].

[24] State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118, [24] (O'Connor VP) citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, [37].

[25] Submissions of Star Track Express, filed 27 March 2025, 4.

[26] Submissions of Mr Gardiner, filed 23 April 2025, [10].

[27] Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16, [37].

[29] [2014] QIRC O79.

[30] [2023] QIRC 214, [33].

[31] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079, 6 (Neate IC).

[32] Submissions of Mr Gardiner, filed 23 April 2025, [8] - [10].

[33] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079, 6 (Neate IC).

[34] State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118, [25].