Hartley v Flinders Shire Council [2025] QIRC 266

Mutonhori v Mount Isa City Council [2025] ICQ 1

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

State of Queensland (Department of the 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 079

Warrell v Walton [2013] FCA 291

• [1] Mr Stephen Hartley ('Mr Hartley') lodged an unfair dismissal application with the Queensland Industrial Relations Commission ('the Commission') on 29 July 2025. The application was allocated to me for the purpose of conciliation.
• [2] Flinders Shire Council (the Respondent in substantive proceedings) sought leave to be legally represented, filing the required Form 101 and Affidavit on 14 August 2025.
• [3] Mr Hartley opposes the request of Flinders Shire Council to be legally represented in the proceedings. Mr Hartley is currently self-represented.

• [4] Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') sets out when legal representation is available to parties in proceedings before the Commission (other than a Full Bench) where all parties consent, or where the Commission exercises discretion to grant leave.
• [5] Section 530(4) of the Act establishes as follows (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.

• [6] The question for my determination is whether my discretion to grant leave under the Act for Flinders Shire Council to be legally represented should be exercised pursuant to s 530(1)(e)(ii) of the Act.
• [7] For the following reasons I have decided my discretion is enlivened and should be exercised in favour of granting leave for Flinders Shire Council to be legally represented.
• [8] Davis J, President, examined the construction of s 530 of the Act on appeal in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay') as follows:[1]

[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."

• [9] I must determine whether any jurisdictional facts exist that enliven the discretion to grant leave. Only one of these facts must be established as a 'catalyst to the exercise of power'.[2]
• [10] Davis J, President, further explained the nature of jurisdictional facts in Sillay as follows:[3]

[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.

Complexity and efficiency - a matter of judgement

• [11] The Form 101 Application for leave to be legally represented filed by Flinders Shire Council identified considerations of efficiency as the primary basis upon which leave was sought. Flinders Shire Council contend the grant of representation will allow the matter to be dealt with efficiently, and that representation at conciliation and, if necessary, at a hearing, would assist the Commission in expeditious resolution of proceedings.[4] Mr Hartley argues that the matters are not sufficiently complex to warrant the grant of legal representation.[5]
• [12] Davis J, President, relevantly outlined in Sillay the considerations imported by s 530(1)(a), and highlighted the discretionary nature of the required judgement (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.

• [13] In State of Queensland (Queensland Health) v Hume,[6] 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.
• [14] DP Hartigan in Mutonhori v Mount Isa City Council ('Mutonhori') explained that s 530(4)(a) requires the following questions to be considered:[7]

(a) identify the complexity of the "matter", being the controversy subject of the principal proceedings; and

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

• [15] The circumstances surrounding the dismissal of Mr Hartley are identified by Flinders Shire Council as increasing the complexity of the proceeding. They say that Mr Hartley was dismissed pursuant to substantiation of two allegations of discriminatory conduct against fellow personnel. Flinders Shire Council characterise Mr Hartley's claim as one that admits the impugned conduct but contends the dismissal itself was rendered unfair by a lack of procedural fairness and was overall unreasonable in the circumstances.[8]
• [16] Flinders Shire Council submit that the nature of the claim for unfair dismissal is rendered 'substantially' more complex because of the allegations raised by Mr Hartley regarding procedural fairness, due process and the reasonableness of the termination decision.[9]
• [17] Mr Hartley submits that the correspondence terminating the employment 'contained a comprehensive reference' to the various Acts the impugned conduct was said to breach. Mr Hartley says that:

...the respondent having crafted [the] letter of termination is more than competent to be able to internally represent the interests of Council in these proceedings without requiring the assistance of legal representation.[10]

• [18] Flinders Shire Council draw on Mutonhori and characterise the meaning of 'efficiency' as follows:[11]

...having the proceedings dealt with expeditiously and effectively, without undue or excessive energy and resources, and with requisite knowledge and skill.

• [19] Flinders Shire Council further submit that legal practitioners will assist in the efficient conduct of proceedings as they will: identify and focus on the relevant facts and matters, (thereby narrowing issues in dispute), increase the likelihood of an effective conciliation process and streamline affidavit and trial material.[12] In support of this contention, I note that in Sillay, Davis J, President, referred to the comments of VP O'Connor in Dawson:[13]

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

(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 focussed on the relevant issues.

• [20] Mr Hartley disagrees with this, arguing that all material relevant to the conciliation conference has been filed already and that the involvement of legal practitioners at this stage would complicate proceedings.[14] Mr Hartley contends Flinders Shire Council have not demonstrated that there exists a sufficient level of complexity that would enliven any discretion. [15]
• [21] Mr Hartley refers me to the federal jurisdiction and the comments of Commissioner Spencer in Edwards v Litchfield Shire:[16]

[8] I do not accept that the matter will be dealt with more efficiently taking into account the complexity of the matter. The two issues that the Respondent refers to as making the matter complex are, without minimising the very serious issues involved from the Applicant and Respondent's perspective, regular, in terms of an unfair dismissal application. In almost every matter there is some level of dispute concerning whether there is a valid reason for dismissal and it is not uncommon for unrepresented parties to raise issues that are not, at least directly, within the Commission's jurisdiction. While the resolution of these matters will require careful consideration by the Commission, they are not entirely complex.

[9] Additionally, the grounds for the termination of employment relate to matters that allege breaches of council policies and are within the ordinary domain and operational knowledge of the company representatives. The alleged misconduct relates to tests of the company practice, procedures and policies. All issues that can be addressed by company personnel. The matter is not significantly complex but relates to the test of the Applicant's conduct, against councils requirements and documents.

• [22] The above comments are said by Mr Hartley to be equally applicable to the present case. Mr Hartley argues that Flinders Shire Council can easily be represented by the Local Government Association of Queensland ('LGAQ'), stating that the LGAQ historically assists members in this kind of matter.[17]
• [23] Further, Mr Hartley points to Warrell v Walton,[18] and in particular Flick J's articulation of the risks of legal representation (in the federal jurisdiction):

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008...

• [24] Mr Hartley argues there is not 'sufficient complexity' within the proceeding to warrant leave for the Respondent to be legally represented. It is well-understood in the Queensland jurisdiction that in weighing complexity, the matter itself does not have to be complex or more complex than another matter. The judgement required is whether, having regard to the complexity of a particular matter, would the potential involvement of lawyers lead to efficiencies. Mr Hartley's submissions suggest there is an objective test that any matter must meet to be considered complex enough to be aided by legal representation. This approach has been rejected by Davis J, President, in Sillay.[19]
• [25] The fact that either party could have sought representation under a different provision of the Act (for example, s 529)[20] or be represented by a lawyer in circumstances not requiring leave,[21] is not relevant to this requirement. The capacity of either party to represent themselves is also a separate consideration related to fairness.
• [26] While I agree that prima facie the factual and legal issues in this proceeding are not highly complex, it does not follow that there is no complexity warranting further consideration of potential legal representation. Whether efficiency can be gained having regard to identified complexity within this matter is a matter for my judgement.
• [27] While some of the conduct has been admitted by the Applicant in this matter, he also squarely denies aspects of the findings against him, including that he threatened retaliation against one of the subjects of his discriminatory comments. He asserts one of the complainants has a financial motive, as an external consultant, for reporting the conduct; and indicates the two employees who were the subject of the discriminatory conduct were not offended as neither of them made the complaints on this occasion or any other occasion where he had made similar remarks. [22]
• [28] On the material currently before the Commission, this case is not confined to whether there were issues with the process and proportionality of the outcome; there is a contest in relation to the conduct itself.
• [29] I consider in these circumstances efficiency would be gained through competent legal representation of at least one party. While the matter is allocated to me for the purpose of conciliation, the question before me is in relation to representation for the proceedings.
• [30] I concur with the submissions of Council that the efficient conduct of the matter would be assisted by legal representation, through identification and focus on the relevant facts and matters, narrowing issues in dispute, increasing the likelihood of an effective conciliation process and streamlining affidavit and trial material.[23]
• [31] 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.

• [32] 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.
• [33] I note that Flinders Shire Council has made no submissions to suggest they could not represent their own interests if leave was not granted, so I will not consider that requirement any further.

• [34] Mr Hartley contends Flinders Shire Council has failed to address why legal representation is necessary, arguing they have capacity to self-represent or could access representation by the LGAQ.[24] He further points to the legislative examples of when it might be unfair to refuse leave, noting Council does not fall into either example.[25]
• [35] Mr Hartley made submissions regarding the capacity of the Flinders Shire Council as an employer, describing them as a 'notable employer in North Western QLD' that employs 'approximately 130 employees'. The fact that Flinders Shire Council are equipped with a Department of Human Resources and Governance is pointed to by Mr Hartley to argue that Flinders Shire Council has the capacity to represent itself in these proceedings.[26]
• [36] Council has not suggested they could not represent themselves if leave is not granted. They argue the proceedings could be conducted more efficiently having regard to the complexity of the matter if legal representation was granted. As already found, I concur with that view.
• [37] As a person without the financial means to engage legal representatives, Mr Hartley submits he would be significantly disadvantaged if leave were granted to Flinders Shire Council to be legally represented.[27] It is said by Mr Hartley that such an outcome would not be within the spirit of the legislation.
• [38] The commentary of Neate IC in Wanninayake,[28] as cited by O'Connor VP in State of Queensland (Department of the Premier and Cabinet) v Dawson,[29] is relevant here:

The fact that one party, either by choice or circumstances, 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 allocated for the hearing.

• [39] It is not inherently unfair or unjust for one party to be legally represented because the other party is not. It is the role of the Commission to ensure the presence of legal representatives does not result in unfairness by ensuring the proceedings are conducted in a manner that is fair and just to all parties.[30]
• [40] I do not accept that granting leave for the Respondent to be legally represented impacts fairness 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 the Respondent to be legally represented.
• [42] I order accordingly.

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] [2024] ICQ 16.

[3] [2024] ICQ 16.

[4] Form 101 Application of Respondent, filed 14 August 2025, 3.

[5] Submissions of the Applicant, filed 11 September 2025, 3.

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

[7] [2025] ICQ 1, [24]; Submissions of the Respondent, filed 4 September 2025, 1.

[8] Submissions of the Respondent, filed 4 September 2025, 2.

[9] Submissions of the Respondent, filed 4 September 2025, 2.

[10] Submissions of the Applicant, filed 11 September 2025, 1-2.

[11] Submissions of the Respondent, filed 4 September 2025, 3, [11].

[12] Submissions of the Respondent, filed 4 September 2025, 3, [12].

[13] [2024] ICQ 16, [20]-[21] (Davis J, President) citing State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118.

[14] Submissions of the Applicant, filed 11 September 2025, 2.

[15] Submissions of the Applicant, filed 11 September 2025, 3.

[16] [2019] FWC 5386.

[17] Submissions of the Applicant, filed 11 September 2025, 2.

[18] [2013] FCA 291.

[19] [2024] ICQ 16.

[20] Industrial Relations Act 2016 (Qld) s 529(1)(a)-(d).

[21] Ibid s 530(5)(a)-(b).

[22] Form 12, filed 29 July 2025, Schedules 1-2, 7-12.

[23] Submissions of the Respondent, filed 4 September 2025, [12].

[24] Submissions of the Applicant, filed 11 September 2025, 3.

[25] Reproduced at [5] above; Submissions of the Applicant, filed 11 September 2025, 3.

[26] Submissions of the Applicant, filed 11 September 2025, 3.

[27] Submissions of the Applicant, filed 11 September 2025, 3.

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

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

[30] Harris v State of Queensland (Queensland Corrective Services) [2025] QIRC 245, [46] (Power IC).