Harris v State of Queensland

Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 016

State of Queensland (Queensland Health) v Hume [2022] IQC 001

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

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

• [1] On 9 April 2025, Ms Robyn Harris ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

• [2] On 22 April 2025, the Respondent filed an application for leave to be legally represented pursuant to s 530(1)(e) of the IR Act with accompanying submissions and Affidavit of Ms Sarah Smith. On 21 May 2025, the Respondent filed an application for leave to be legally represented by Counsel with accompanying submissions and an Affidavit of Ms Sarah Smith pursuant to s 530(1)(e)(ii) of the IR Act. These applications for leave to be legally represented will be considered jointly as 'the Application'.

• [3] On 28 May 2025, the Applicant filed and served submissions and Affidavit of Ms Robyn Harris opposing the Respondents' Application.

• [4] On 3 June 2025, the Respondent filed an application to join proceedings for matters GP/2025/13 and B/2025/38 pursuant to r 98 of the Industrial Relations (Tribunals) Rules 2011 (Qld), and in accordance with s 530(1)(e)(ii) of the IR Act that the Respondent have leave to be legally represented in the combined proceeding.

• [5] On 11 June 2025, a telephone mention was held to discuss both applications made by the Respondent where Parties agreed that both applications would be resolved following a further conciliation conference that would be held for B/2025/38.

• [6] A conference was held on 4 August 2025 before Industrial Commissioner O'Neill for matter B/2025/38. The matter did not settle at conference and consequently it will now be heard and determined.

• [7] By email on 4 August 2025, it was communicated to the Parties that the application for leave would be dealt with prior to the application for joinder and Parties were requested to advise if they wished to make further submissions regarding legal representation and if there were any objections to the matter being determined on the papers.

• [8] On 6 August 2025, the Respondent confirmed they were content to rely on the application and supporting affidavit filed on 3 June 2025 and did not object to the matter being determined on the papers.

• [9] The Applicant confirmed by email on 6 August 2025 that they did intend to make further submissions.
• [10] The question for determination is whether leave should be granted for the Respondents to be legally represented in the proceedings.

• [11] Section 530 of the IR Act relevantly provides:

(1) A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if -

(d) for other proceedings before the commission, other than the full bench -

(i) all parties consent; or

(ii) for a proceeding relating to a matter under a relevant provision - the commission gives leave; or

(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

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

• [12] The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave 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.

• [13] In State of Queensland (Queensland Health) v Hume ('Hume'),[1] Deputy President Merrell opined the following with respect to the construction of s 530(4)(a) of the IR Act:

[34] First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c).

[35] Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court. The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer.

[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.'

[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.

• [14] The Respondent submits that leave will allow the matter to be dealt with more efficiently and appropriately having regard to both the matters complexity and fairness between the parties.

• [15] The Respondent highlights that the Commission must be satisfied that at least one of the factors set out in s530(4) support the grant of leave.[2]

• [16] In relation to s 530(4)(a), the Respondent submits that while complexity is not the precondition for the Application, leave would enable the matter to be dealt with more efficiently.[3]

• [17] Additionally, the Respondent considers that this proceeding holds complexity for the following reasons:

• the matter involves several alleged contraventions of the IR Act, including allegations relating to workplace rights and discrimination where the Applicant's case involves complex matters of law.

• there will likely be many contested factual issues, including as to whether particular factual allegations are relevant to the determination of any legal questions raised in the proceeding.

• as officers of the Supreme Court of Queensland, the Respondent's legal representatives are mindful of their primary obligation to the administration of justice, which includes ensuring that their client's evidentiary case and any cross-examination of the Applicant are limited as much as possible. With leave granted legal representatives will assist the Commission to identify the real issues in dispute and deal with them efficiently.[4]

• [18] The Respondent further refers to the extensive nature of the Applicant's allegations, stating that due to the lack of clarity in her factual and legal case, it would be unfair not to allow the Respondent to be represented.

• [19] Finally, the Respondent submits that in circumstances where it is bound to act as a model litigant, the Applicant will not suffer any unfair disadvantage by not being represented.[5]

• [20] The Applicant contends that the granting of leave for this matter would not allow it to be dealt with more efficiently or provide fairness between the parties.

• [21] The Applicant submits that granting leave to several legal representatives to represent the Respondent would unnecessarily complicate the claim.

• [22] The Applicant notes that the Commission may grant permission with leave if it is satisfied it will support the factors nominated in s530(4).

• [23] In relation to s530(4)(a), the Applicant contends that granting leave for the Respondent to be represented by both a private legal team from MinterEllison and Counsel does not evidence an increase in efficiency, nor that there are matters within the Applicant's statement of facts and contentions that would make the matter more complex.

• [24] The Applicant considers that there is no basis to suggest that the Respondents, given their substantial resources and support of their own legal and employee relations teams, are unable to adequately represent their legal interests in judicial proceedings.

a) The Respondent's claim that the matter involves several alleged contraventions of the IR Act does not establish that the case raises complex legal issues. While the Applicant's claim refers to alleged contraventions of the IR Act, these remain factual matters supported by evidence rather than complex questions of law.

b) The Respondent asserts there will be many contested factual issues but has not identified or supported this claim with any likely facts or evidence from the Applicant's statement of facts and contentions.

1. The Respondent has substantial financial and human resources, including a dedicated legal team and employee relations staff with industrial, human resources and legal qualifications, many of whom hold senior positions with delegated authority from the Commissioner. It would be contrary to the public interest to suggest such staff are incapable of managing a General Protections claim, particularly against a self-represented litigant without comparable resources.

d) Granting leave for legal representation would not improve efficiency. The matters in dispute are fact and evidence based, including any omissions by the Respondent, and can be addressed without Counsel. Private legal advice can still be sought to prepare documents or provide guidance.

e) Reliance by the Respondents on leave for legal representation being granted at conciliation is irrelevant, as that occurred under different circumstances. The Applicant attended in good faith to resolve matters and ensure her safety and ability to perform her role. The Respondent failed to substantiate its claims, and the Applicant remains in a compromised workplace.

f) General Protections claims do not involve complex evidence or law and rarely require forensic examination of witnesses. Efficiency alone does not meet the requirement under s530(4)(a) or justify leave in a matter clearly defined by the IR Act, where remedies are limited to compensation and/or civil penalties.

• [26] In relation to s 530(4)(c) and fairness between the parties, the Applicant contends the following:

a) The Respondent already has substantial financial and human resources, including in-house lawyers through Crown Law. Allowing private lawyers and Counsel would create a manifestly excessive and unfair imbalance against a self-represented individual and is contrary to the public interest.

b) Such representation primarily protects the Respondents interests rather than fairness or justice. While officers of the Supreme Court are bound by their duty to the administration of justice, the Respondent is obliged to observe the Model Litigant Principles, including acting with fairness and honesty, minimising costs, avoiding unnecessary litigation, and not exploiting an impecunious opponent.

1. The Respondent could reduce litigation scope and costs by evidencing its own statements or addressing omissions directly. As a large organisation with significant resources, it does not require additional representation in a matter based on facts, evidence, and workplace rights under the IR Act.

d) Refusing leave would not disadvantage the Respondent, as its internal staff can still prepare documents, provide advice, and support the proceedings, including witness questioning and cross-examination.

• [27] A party is permitted to be represented by a lawyer in proceedings before the Queensland Industrial Relations Commission if granted leave in accordance with s 530.

• [28] The discretion to grant leave for a party to be legally represented is outlined in section 530(4) of the IR Act. The Commission may grant leave 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.

• [29] In Sillay v State of Queensland (Queensland Corrective Services) ('Sillay'),[6] President Davis referred to the following observations made by Vice-President O'Connor in Dawson:[7]

(a) generally, the skills and expertise of legal practitioners will be a help rather than a hinderance;

(b) legal representatives have a paramount duty to the Court; and

(c) the presence of lawyers generally ensures that a case will be run more efficiently and focused on the relevant issues.

• [30] The professional duties of legal representatives were considered in Sillay,[8] with President Davis noting the following:

Legal representatives are bound by their respective professional duties to the court and their clients. These duties, together with the supervision of the Commission, should ensure that each party and their respective representatives act in good faith and in a manner which will ensure the proceedings, including any conciliation conference, proceeds efficiently.

• [31] The Applicant submits that the matters that would determine the complexity of this matter have not yet been outlined in a statement of facts and contentions. Further, the Applicant contends that 'a statement of evidence-based fact is not a complex matter of law'.

• [32] The documents filed in this matter to date, including the Application and Response, demonstrate that the matters raised have a significant level of complexity.

• [33] The Applicant outlines a number of grounds in the General Protections Application including the following workplace right:

Right for all acts and decision or directions that directly affect me to be lawful, within the employers Duty of Care obligation under the WH&S Act 2011, Human Rights Act 2019 and Anti-Discrimination Act 1991 or any other subordinate acts, regulations or directives. Right of Tort of Defamation.

• [34] This ground alone indicates that the matter involves significant complexity and will require further particularisation.

• [35] The Applicant's submissions understate the complexity of General Protections claims generally, including the one the subject of this application. The contention that it involves a 'statement of evidence-based fact' and is not a complex matter of law is not persuasive. Whilst it is not uncommon for self-represented Applicants to view their own application as straightforward, the reality of progressing a claim such as this through a hearing is that it is often more complex both procedurally and in substance than first anticipated.

• [36] In the Response filed by the Respondent, it is clear that there are both legal and factual disputes between the parties with respect to the allegations of adverse action and the identification of relevant workplace rights.

• [37] The Applicant submits that 'there is likely to be no need for any forensic examination of evidence of witnesses'. In circumstances where the Response filed by the Respondent indicates significant factual disputes between the parties, one could reasonably expect that a forensic examination of witnesses will indeed be required.

• [38] I have had regard to the complexity of the matter in accordance with s 530(4) and will now consider whether granting leave would enable the proceedings to be dealt with more efficiently.

• [39] In Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake'), Commissioner Neate stated the following:[9]

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

• [40] Leave for legal representation is considered not to afford greater power to a party but to assist the Commission with the efficient conduct of the proceedings. In this matter the Applicant annexed a 35-page document to the Application relating to a broad range of matters along with a substantial number of attachments. The Applicant then filed a 42-page document addressing the Response filed by the Respondent. The number of pages filed this matter at this early stage is already voluminous.
• [41] In my view this proceeding will significantly benefit from legal representatives assisting to narrow the matters in issue. Limiting the matters in issue will ensure that proceedings will be dealt with more efficiently.

• [42] I am satisfied that the Commission would benefit from the presence of legal representatives to ensure that the matter progresses in an orderly manner at hearing confining both evidence and submissions to only those matters that are relevant.

• [43] Given the complexity of the application, I am satisfied that legal representation would enable the proceedings to be dealt with more efficiently.

• [44] The Applicant submits that granting leave for the Respondent to be legally represented is 'excessively and manifestly unfair and unjust'.

• [45] In Wanninayake, Industrial Commissioner Neate determined that the Respondent should not be denied the opportunity to efficiently present its case through legal representation, simply because the Complainant has not engaged legal representation:[10]

The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party of 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.

• [46] It is not inherently unfair or unjust for a party to be legally represented simply because the other party is not. It is the role of the Commission to ensure that the presence of legal representatives does not result in unfairness to another party by ensuring that proceedings are conducted in a manner that is just and fair to all parties.

• [47] The Applicant submits that the Respondent has substantial resources including access to expert employees within the Department. I accept that the Respondent has access to internal resources, however the application has not been brought on the basis that the Respondent cannot represent itself pursuant to s 530(4)(b). The issue of fairness was raised pursuant to s 530(4)(c), with the Respondent contending that it would be unfair not to allow the Respondent to be legally represented.

• [48] In circumstances where the material filed by the Applicant to date lacks precision regarding both the factual and legal matters, it would in my view be unfair to require the Respondent to manage the proceedings without legal representation.

• [49] The Applicant refers to a number of the Model Litigant Principles, namely:

• Endeavouring to avoid prevent and limit the scope of legal proceedings.
• Where it is not possible to avoid litigation, keeping the costs of litigation to a minimum.
• Not seeking to take advantage of an impecunious opponent.
• Not contesting matters which it accepts as correct, in particular by not requiring a party to prove a matter which the State knows to be true and not contesting liability if the State knows that the dispute is really about quantum.

• [50] There is no evidence before the Commission that the Respondent has contravened any of the above principles, nor that the granting of legal representation would result in an increased likelihood of those principles being contravened.

• [51] The Applicant's submission that the cost of litigation will not be kept to a minimum if the Respondent contests 'matters of fact and evidence' is misconceived. The requirement to keep the costs of litigation to a minimum does not prevent the Respondent from contesting matters which it does not accept as arising from an accurate factual basis.

• [52] In Dawson, Vice-President O'Connor observed that balancing fairness between parties can be aided through proper case and courtroom management.[11] 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. Appropriate courtroom management will ensure fairness is afforded to both parties.

• [53] There are a number of factors that weigh in favour of the exercise of the discretion, particularly the substantial number of disputed facts, the broad nature of the allegations, and the lack of clarity surrounding the legal contentions. I am satisfied that the proceedings will be more limited in scope and focused on the relevant matters if leave is granted.

• [54] I am satisfied that it would be unfair not to allow the Respondent to be legally represented having regard to fairness between the parties.

• [55] On the basis that this application satisfies the criteria in s 530(4)(a) and (c), the discretion to grant leave is enlivened.

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

[1] [2022] ICQ 001 ('Hume') [34] - [44].

[3] Roberts v TasTAFE [2024] FWCFB 449, [9].

[4] State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 ('Dawson') [15] - [16].

[6] [2024] ICQ 016 ('Sillay') [20].

[9] [2014] QIRC 079 ('Wanninayake') 6.