Ivins v KMA Consulting Engineers Pty Ltd & Ors [2025] QIRC 141

Queensland Industrial Relations Commission|2025-06-02

HUMAN RIGHTS - JURISDICTION AND PROCEDURE - QUEENSLAND - 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 various provisions of the Anti‑Discrimination Act 1991 - complaint referred to the Queensland Industrial Relations Commission - complaint yet to be the subject of conciliation before the Commission - application in existing proceedings by the First, Second and Third Respondents for leave to be given to them, pursuant to s 530(1)(c) of the Industrial Relations Act 2016, to be legally represented in the proceedings - Complainant opposes First, Second and Third Respondents' application for leave to be legally represented - whether leave should be given to First, Second and Third Respondents to be legally represented having regard to s 530(4)(a) and (c) of the Industrial Relations Act 2016 - applications in existing proceedings for the First, Second and Third Respondents to be represented by a lawyer are allowed

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

Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14

Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046

Kempster v JGI Property Group Pty Limited [2024] QIRC 151

Neil v Lee [2024] QIRC 93

Rozendaal v State of Queensland (Queensland Corrective Services) [2024] QIRC 135

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 079

[1] On 22 December 2023, Ms Jaimee Ivins ('the Complainant') made a complaint to the Queensland Human Rights Commission ('QHRC') alleging that KMA Consulting Engineers Pty Ltd ('the First Respondent'), Mr Karl Aldrich (Director of the First Respondent) ('the Second Respondent') and Mr Tony Robson ('the Third Respondent') had contravened various provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').

[2] The Complainant was employed by the First Respondent initially as a casual administrative assistant from 25 August 2022. On or about 12 June 2023, the Complainant alleges she commenced a permanent full-time role with the First Respondent as an Undergraduate Engineer.

[3] In the course of her employment by the First Respondent, the Complainant alleges that she was subjected to workplace sexual harassment (by the Second and Third Respondents) and sexual assault including rape (by the Second Respondent).

[4] The complaint was accepted under ss 136 and 141 of the AD Act as alleging sex discrimination in the area of work[1], sexual harassment[2], and victimisation[3].

[5] On 2 April 2025, the QHRC referred the complaint to the Commission ('the proceeding').

[6] The First and Second Respondents have applied for leave to be represented in the proceeding by Aitken Legal.

[7] The Third Respondent has applied for leave to be represented in the proceeding by Turner Freeman Lawyers.

[8] The Complainant objects to both applications.

[9] On 9 April 2025, the proceeding was listed for a conciliation conference to be held on 9 May 2025.

[10] On 11 April 2025, the First and Second Respondents filed a Form 101 Application ('the first application') and supporting affidavit of a solicitor employed by Aitken Legal seeking leave to be legally represented in the proceeding pursuant to s 530 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[11] On 11 April 2025, the Third Respondent also filed a Form 101 Application ('the second application') and supporting affidavit of a solicitor employed by Turner Freeman Lawyers seeking leave to be legally represented in the proceeding pursuant to s 530 of the IR Act.

[12] On the same day, the Industrial Registry sent two emails to all of the parties, including the Complainant, attaching a copy of the two applications and supporting affidavits, and noting that that the Commission would be in contact as to the future conduct of the matter. The Commission did not make further contact with the parties regarding the two applications for leave for legal representation.

[13] The Complainant did not lodge a Form 102 - Response to application for leave to be represented by a lawyer ('the Form 102') within seven days.

[14] The conciliation conference in the matter was convened on 9 May 2025. All three Respondents appeared with their respective legal representatives and the Complainant appeared unrepresented but with a support person.

[15] The Commission ascertained that the Complainant had received late notice of the listing of the conference due to the email going into her spam folder.

[16] Upon becoming aware that the matter was listed, the Complainant commenced preparing Form 102 responses objecting to each application. When the Complainant realised that she was out of time to respond to the applications, she abandoned the preparation of her objection. At the conference on 9 May 2025 the Complainant confirmed that she maintained an objection to the Respondents being legally represented.
[17] Given this, and in order to afford procedural fairness to the unrepresented Complainant, the Commission considered that it was appropriate for the Complainant to be granted an extension of time to file her Form 102 response and submissions in support of her objection to the applications. The conciliation conference was adjourned and a directions order was issued for the parties to provide submissions in respect of the two applications.

[18] On 19 May 2025 the Complainant filed in the Industrial Registry a Form 102 response and supporting affidavit and submissions objecting to the Respondents' applications for legal representation.

[19] On 23 May 2025 the Respondents respectively provided submissions in response to those provided by the Complainant.

[20] Neither party elected to make further oral submissions with respect to their positions and, accordingly, the interlocutory application will be dealt with on the papers.

[21] The question for my determination is whether leave should be granted for the Respondents to be legally represented in the proceeding.

[22] Section 530 of the IR Act provides for legal representation in the following terms:

(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 -

(c) for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991 - the commission gives leave;

(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

(5) For this section, a party or person is taken not to 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 -

(i) an organisation; or

(ii) a State peak council; or

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

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

(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.

[23] In Annexure A to the first application the First and Second Respondents provide the following contentions in support of legal representation being granted:

The making of the order would allow the matter to be run more efficiently, because:

(a) there are numerous allegations of misconduct, including some of a particularly serious nature, such as sexual assault and rape against the Second Respondent. The involvement of a specialist advocate will permit the evidence to be effectively marshalled and presented clearly and concisely;

(b) there is a lack of clarity in aspects of the Complainant's legal case and the Commission would benefit from the assistance of lawyers in addressing those matters;

(c) the relief sought involves complex questions of future economic loss and mitigation of damages, as well as general damages for hurt and humiliation, which will more efficiently be addressed by a legal practitioner.

It would be unfair to not permit the Respondents to be legally represented because:

(a) the First Respondent is a very small business, currently compromised of the Second Respondent and his wife;

(b) the First Respondent does not have in-house specialist legal or HR personnel available to assist them;

(c) they do not have experience in the conduct of litigation of this type;

(d) the number, nature and seriousness of the allegations and the potentially significant consequences of adverse findings;

(e) the relief sought, though not specifically stated, is expected to be significant as it involves years of alleged inability to work and involves complex questions of fact and law. In circumstances where such significant relief is claimed, it would be unfair to require the Respondents to seek to defend the claim without legal assistance.

The balance of fairness between the parties suggests that the Respondents ought to be allowed legal representation because of the serious nature of the allegations made against the Second Respondent, which warrant the opportunity to have legal representation.

[24] The affidavit of Mr Hamish Procter, solicitor from Aitken Legal largely repeats the contents of Annexure A which had been excerpted above. To the extent that those matters are repeated in the affidavit, I will not further summarise in these reasons.

[25] In relation to s 530(4)(a) of the IR Act, Mr Procter deposes:

The matter is both legally and factually complex, with various disputes raised and left unresolved in the preceding QHRC complaint. He contends that the complexity of the matter is evidenced by the failure of the conciliation conducted by the QHRC to settle the matter.[4]

The legal representatives are experienced in discrimination legislation and jurisdiction and the relevant procedural and evidentiary requirements of the Commission. Mr Procter contends that by allowing legal representation, the Commission will be assisted in matters relating to points of law, the legal arguments will be relevant, and procedural and evidentiary requirements will be adhered to.[5]

Factually, the matter is complex in that there is a contest over the allegations which are entirely rejected by the Respondents. It is contended that the Commission will be required to hear evidence from witnesses and make findings of fact and credit. Cross examination will play a critical role in extracting evidence from the witnesses.[6]

If leave is granted, the legal representatives will be able to confine the matters presented to the Commission to the relevant factual matters, the proceedings will be kept on track and the examination of witnesses will be skilful and focused on the necessary and relevant issues.[7]

[26] In Annexure A to the second application the Third Respondent provides the following contentions in support of legal representation being granted:

In respect of s 530(4)(a) of the IR Act (the efficiency and complexity ground):

Given that there are factual allegations against the Third Respondent that are denied, this will require evidence to be led and cross-examination of the complainant to occur.

Given that there is a contested factual matrix and a complex legal matrix, the assistance of legal representation will assist the industrial tribunal in narrowing the factual matters in dispute for determination.

In respect of s 530(4)(b) of the IR Act (unfairness and inability to represent the person's interests):

The Third Respondent has no legal experience and has never been involved in a matter such as this before and would not be able to present his case in a manner that would "create a striking impression", or which has an "impressive effect" or which is "powerful in effect".

Without legal representation the Third Respondent will have difficulty in presenting his case and navigating the legal and factual issues that he will be required to canvass, including cross-examination of the complainant which will be required should certain facts remain alleged as against him.

In respect of s 430(4)(c) of the IR Act (unfairness):

The Complainant's case was prepared by a legal representative and the matter now has a legalistic and formal legal character. Given this it would be unfair for the Third Respondent to not be granted leave to have legal representation.

[27] The affidavit of Mr Rohan Tate from Turner Freeman Lawyers filed on 11 April 2025 merely notes that the Third Respondent seeks leave be granted for him to have legal representation for the reasons set out in the Form 101 application.[8]

[28] The Complainant filed her Form 102 response and supporting affidavit on 19 May 2025.

[29] In her affidavit the Complainant deposes to the following:

She has not been previously informed by the Respondents that there was any confusion or lack of clarity in relation to her case.[9]

She has provided the Respondents with detailed information regarding the allegations, including text messages and supporting documents.[10]

Throughout the proceedings the Respondents have continuously engaged legal representatives and have not attempted to manage or participate directly in any portion of the matter.[11]

The Complainant remains self-represented and has been unable to secure ongoing legal representation despite endeavouring to do so.[12]

[30] The Complainant has also provided submissions as Annexure A to her Form 102 response. The Complainant objects to the Respondents being granted legal representation and submits that granting leave would undermine the principles of fairness, balance, and informality intended to govern proceedings before the Commission.[13]

[31] As regards s 530(4)(a) of the IR Act (efficiency and complexity):

The Complainant contends that the issues in the proceeding whilst serious, do not involve such legal complexity that would prevent the Respondents from representing themselves.[14]

The Complainant further submits that the core of the matter relates to direct personal conduct and is largely supported by contemporaneous written communications, including text messages. The Complainant contends that these are matters of straightforward fact, not complex law or technical analysis.[15]

The Respondents have consistently relied on legal representation during the proceedings and have not demonstrated any independent effort to manage their case. The claim that the Respondents cannot represent themselves is unsupported by any evidence or any genuine attempt to do so at any point in the proceedings.[16]

Permitting legal representation would disproportionately disadvantage the Complainant, who remains self-represented. Introduction of legal counsel for the Respondents would create a significant imbalance in the proceedings.[17]

The Respondents' argument that legal representation would create efficiency is flawed. The Complainant contends that the Commission is well-equipped to manage its own proceedings and does not require external counsel to 'marshal evidence' or 'narrow issues'.[18]

[32] As regards s 530(4)(b) of the IR Act (capacity of Respondents to represent themselves):

The Complainant repeats the submission that the Respondents have failed to demonstrate that they are unable to represent themselves. She contends that their reliance on legal representation demonstrates preference, not incapacity.[19]

The Complainant submits that the Second Respondent is the director of the First Respondent and is a fully qualified engineer who has previously acted as an expert witness in legal proceedings. It is submitted that the Second Respondent is undoubtedly capable of understanding and participating in the matter without the need for legal representation. The Complainant notes that the Third Respondent is a senior professional who has managed complex projects and contracts. She contends both the Second and Third Respondents are highly skilled professionals and are competent to self-represent.[20]

By contrast, the Complainant has had to self-represent throughout the process despite facing significant psychological and emotional distress resulting from the matters in dispute. The Complainant submits that denying the Respondents' applications ensures a level playing field and fairness to all parties.[21]

[33] As regards s 530(4)(c) of the IR Act (fairness between the parties):

The Complainant contends that the seriousness of the allegations does not automatically necessitate legal representation, particularly where the Complainant has not had the benefit of continuous or current legal advice.[22]

Allowing the Respondents legal representation will result in an inequitable and imbalanced (sic) process, where the Complainant faces a team of professional advocates despite being self-represented. The Complainant submits that this is the very unfairness that s 530(4)(c) is designed to prevent.[23]

[34] The Complainant has cited two authorities in which she contends that the Commission has previously refused leave for legal representation in similar circumstances:

Gorman v Northern Queensland Primary Health Network [2018] QIRC 118; and
Smith v Central Queensland University [2019] QIRC 227.

[35] The First and Second Respondents (hereafter 'the Respondents') cite the decision of Sillay v State of Queensland (Queensland Corrective Services)[24] as authority for the proper construction of s 530 of the IR Act.

[36] The Respondents note the following recent decisions of the Commission which provide some guidance as to what constitutes 'complexity':[25]

(a) In State of Queensland (Queensland Health) v Hume ("Hume"), it was noted that "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".[26]

(b) The facts of _Kempster v JGI Property Grou_p ("Kempster")[27] were determined as "complex" because (inter alia), as is the case here: there were multiple respondents, including a corporate entity; the issues included discrimination on the ground of sex, sexual harassment, and victimisation; contravention of the prohibition on victimisation could attract civil penalties, which 'emphasises the seriousness of such an allegation'; the question of vicarious liability was in play; and there were likely to be many issues of fact.. Leave was granted to the Complainant in this case; and

( c) In Gardiner v Star Track Express ("Star Track"), leave was granted for the respondent to be legally represented in a matter including discrimination, sexual harassment and victimisation, on the basis that the substantive matters in the complaint were complex.[28]

[37] In summary, the Respondents contend that the involvement of legal representation will aid efficiency because:

The Complainant's allegations include serious allegations of sexual assault (including rape, sexual harassment, and victimisation. The seriousness of these allegations could result in civil penalties or potentially contribute to criminal considerations against the Second Respondent.[29]

There is a question of vicarious liability for the First Respondent and there are also complex questions to address in respect of the types of compensation being sought by the Complainant.[30]

There are multiple Respondents including a corporation and there will be significant documentary evidence and significant factual disputes, which will only be resolved following the careful and efficient presentation of evidence and after considered cross-examination and re-examination. The combination of the factors set out above give rise to an inherent complexity.[31]

Given that complexity, the involvement of legal representation for the Respondents, having regard to their obligations to the administration of justice, will aid the efficiency of the matter. Without legal representation there is a risk that the proceeding will become complicated and protracted.[32] The Respondents provide the following matters to demonstrate this risk:

The Complainant has already failed to meet the requirements of the Commission by failing to submit her Form 102 with an accompanying affidavit, a mistake which could have been avoided with legal representation.

The Respondents note the error regarding the case authorities cited by the Complainant. They submit without legal assistance, the Respondents may not have detected this issue as the Respondents are not legally trained and have no experience in conducting legal research. In relation to that error, the Respondents submit:

the citation [2018] QIRC 118 appears to belong to Re: National Retail Association Limited, Union of Employers [2018] QIRC 118;

the citation [2019] QIRC 227 does not return any relevant results; and

research using the party names has not returned any relevant results.

The Complainant's reference to a without prejudice offer made during the conciliation conference at the QHRC, which it is submitted further demonstrates the knowledge gap and procedural difficulties that are likely to be encountered if both parties are without legal representation.

If leave is not granted, it appears it will likely fall to the Second Respondent, the person whom the Complainant alleges committed acts of sexual assault, rape, and victimisation against her, to conduct cross-examination of her. It is submitted that this poses threats to both the efficient cross-examination of the Complainant, and also the mental welfare of both the Complainant and the Second Respondent.[33]

The Respondents conclude that the involvement of legal representation will assist the Commission in handling the matter in an efficient manner by:

Conducting any cross-examination in a professional and considered manner.

Conducting relevant fact checking or research where necessary.

Assisting the Respondents with procedural compliance, and containing the issues to the relevant points.

[38] In relation to the ability of the Respondents to represent themselves, it is submitted that the First Respondent is a business comprising of two employees (being the Second Respondent and his wife), with no professional HR department or legally trained personnel. It is contended that it would be unfair not to allow the First Respondent to be legally represented, especially given the seriousness of the allegations and the potential risk of civil penalties and civil findings of sexual assault or rape by the Second Respondent.[34]

[39] The submissions note that the Second Respondent has no HR or legal expertise. He has appeared as an expert witness in one Court matter, but has never conducted a court proceeding in his own right. It is contended that the Second Respondent simply does not have the experience or expertise to capably and effectively represent his own interests in a complex matter like this.[35]

[40] In relation to the issue of fairness between the parties, the Respondents submit that the Complainant's contention that refusing leave for representation would create a "level playing field" displays a misunderstanding of s 530(4)(c) of the IR Act. The Respondents note this section relates to fairness to the party applying for representation. The fact that the Complainant does not have legal representation has no bearing on this point.[36]

[41] The Respondents submit that the purpose of s 530(4)(c) of the IR Act is to account for situations where, as an example, a lawyer is employed by a party as that lawyer can then appear without leave. In those circumstances, the Respondents contend it would likely be unfair to the other party to refuse leave for representation. The Respondents contend that this is a neutral consideration in the present applications.

[42] The Respondents submit that leave to be legally represented should be granted to the First and Second respondents.

[43] The Third Respondent's submissions largely adopt the submissions of the First and Second Respondent, or repeat the contents of Annexure A to the second application.

[44] The Third Respondent repeats the submission that if leave for legal representation is not granted, that in circumstances where he has been accused of sexual harassment and victimisation against the Complainant, it will fall to him to cross-examine the Complainant. The Third Respondent contends that this poses threats to both the efficient cross-examination of the Complainant, and also the mental welfare of both the Complainant and the Third Respondent.

[45] In relation to fairness, the Third Respondent submits that he has no legal experience and has never been involved in a matter such as this before. He repeats the submission that he would not be able to present his case in a manner that would create a striking submission. It is further contended that without legal representation, the Third Respondent will have difficulty in presenting his case and navigating the legal and factual issues that will be required to canvass including the cross-examination of the Complainant which will be required given the factual allegations against the Third Respondent.

[46] The Complainant provided her reply submissions on 30 May 2025.

[47] The Complainant provides an explanation for her mentioning the without prejudice offer made by the Respondents at the conciliation conference conducted by the QHRC, stating that this was made solely to explain the procedural history of the matter.

[48] The Complainant contends that the submissions from the First and Second Respondents regarding her use of artificial intelligence and citation of incorrect or unverified authorities is speculative, irrelevant and inappropriate.

[49] Despite that contention, the Complainant acknowledges that the citations provided may have contained referencing errors. The Complainant contends that the Commission regularly refuses leave for legal representation where the matter centres on personal conduct and does not involve complex legal issues. The Complainant contends that this is well supported in Commission precedent. The Complainant then goes on to note, to avoid any potential disputes over citation accuracy, she has deliberately chosen to not include further case references in her reply.

[50] The Complainant goes on to reiterate the contents of her primary submissions that although the allegations are serious, they are not legally or factually complex and involve personal conduct. She further contends that there is no expert evidence, novel statutory interpretation, or ambiguity in legal doctrine. The central issues are credibility and the interpretation of plain-language communications. The Complainant contends that these are well within the Commission's capacity to manage without the assistance of legal representation.

[51] The Complainant maintains her argument that both the Second and Third Respondents are experienced professionals and well capable of representing themselves in the matter.

[52] I have noted the balance of the Complainant's submissions which address the issue of fairness between the parties. Those submissions reiterate the contents of her primary submissions.

Should leave be granted for the Respondents to be legally represented?

[53] 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.

[54] In Sillay v State of Queensland (Queensland Corrective Services)[37], his Honour President Davis J provided the following guidance on the proper construction of s 530 of the IR Act:

[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 purpose 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 to 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 the subject of the principal proceedings. The "proceedings" are the principal proceedings, namely the application for final relief.

identify the complexity; and
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 the party or person, and other parties or persons in the proceedings".

[39] In conducting the assessment under s 530(4)(c), s 530(5) is relevant. A lawyer employed by a party (here the State) may appear for that party without leave. Therefore, when considering the unfairness to a party who employs lawyers, the question becomes whether it would be unfair not to allow the party to be represented by private lawyers rather than their own employed lawyers. That assessment then is had "having regard to fairness between the party ... and other parties in the proceedings".[38] (citations omitted)

[55] In Kempster v JGI Property Group Pty Limited[39], Industrial Commissioner Butler noted that if the Commission forms one or more of the three value judgments (set out in s 540(4) of the IR Act), a discretion arises as to the granting of leave for representation in the proceedings. Industrial Commissioner Butler then went on to note that once the relevant judgment has been formed issues of efficiency, and, or in the alternative, fairness, may be relevant to the question of whether the discretion should be exercised.[40]

[56] The submissions that have been provided by the parties all suffer from the same flaw. There is a focus in each submission on efficiency and fairness as it relates to the substantive hearing. Hence there is a focus in each of the submissions on the issue of logistical difficulties in conducting the substantive hearing in the absence of legal representation of the Respondents, the benefit the Commission will receive in terms of efficiency in having legal representatives confine the issues and conduct the examination of witnesses.

[57] Similarly, in relation to fairness, there is an emphasis placed on the inability of each of the Respondents to adequately represent themselves in the context of the conduct of the substantive hearing.

[58] At the present time, the complaint is before the Commission to conduct an initial conciliation conference. If a settlement is not reached at that conference, the Commission as constituted will then case manage the further preparation of the matter for hearing and then conduct a further conciliation conference. The complaint will then be allocated to another member for hearing.

[59] The parties' submissions have barely engaged (if at all), the question as to what benefit the Commission will receive from the presence of legal representation in terms of efficiencies in the conduct of the conciliation conference (or the following case management process), or how it would be unfair to require the Respondents to represent themselves in a conciliation conference.

[60] The matters that have been raised by the Respondents in support of the respective applications make a persuasive case for the grant of leave for legal representation in respect of the substantive hearing. However, the granting or refusal of leave for legal representation for the substantive hearing will involve the exercise of a discretion by the member of the Commission allocated to hear the substantive complaint. It is not for me to bind the exercise of that member's discretion at this preliminary stage, particularly in circumstances where the member hearing the complaint will have the benefit of more fulsome material and evidence such as Statements of Facts and Contentions, lists of witnesses and potentially outlines of argument which will indicate the complexity of the matter.

[61] In Rozendaal v State of Queensland (Queensland Corrective Services)[41] ('Rozendaal'), Industrial Commissioner Caddie in the context of a reinstatement application following the dismissal of the applicant, refused an application by the Respondents seeking leave for legal representation at a conciliation conference. Industrial Commissioner Caddie relevantly observed:

[39] I accept that should the matter proceed to a final hearing this may present a novel, if not complex, issue of law. This matter does not on its own lead to a conclusion that legal representation would enable the proceedings to be dealt with more efficiently at the present time.

[40] I do not accept the Applicant's general proposition that lawyers in conciliation have "the potential for discussions to devolve into highly technical arguments as opposed to genuine discussions about how to settle the application at hand." I also do not accept the Respondent's general proposition that the involvement of lawyers at the conciliation conference would assist the Commission and allow the parties to effectively conciliate the matter in circumstances where "all options to resolve the matter will be explored." Each case must be considered on its own facts.

[41] It is the role of the Commission to assist the parties at conciliation to explore all options to settle the matter and ensure that there is genuine and practical discussion in order to be satisfied all reasonable attempts have been made as required by s 318 of the IR Act. I am confident that, at conciliation, QCS being represented by itself or Crown Law, and the Applicant being represented by Together, would not result in unfairness to any party.

[43] Referring back to the steps outlined by Merrell DP in Hume, at this stage in the proceedings I am not satisfied that leave for legal representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, or enhance fairness between parties. My discretion to exercise leave is not enlivened.

[62] The issues in dispute in Rozendaal were less complex, given that it was a reinstatement application where the allegations leading to the dismissal were not contested, and the applicant accepted that they had been substantiated. It therefore appears that Rozendaal was not as factually or legally complicated as the present matter where there are significant factual disputes and there will be potentially complex legal issues to be navigated.

[63] A further distinguishing factor between Rozendaal and the present matter is that the applicant had representation for the conciliation conference by a representative from the Together Union, and the Respondent had the option of relying upon either in-house legal representation or representation from Crown Law for the conciliation conference. Those factors are not present here.

[64] Conversely, in Gardiner v Star Track Express Pty Ltd & Ors[42], Industrial Commissioner Caddie in the context of an anti-discrimination complaint which involved allegations of various breaches of the AD Act, gave leave for the Respondents to be legally represented at the case management stage of the proceeding.

[65] In that matter Star Track Express noted that the complainant's Statement of Facts and Contentions raised serious allegations which were inherently complex (including discrimination, sexual harassment and victimisation) which may attract civil penalties and also some legal complexities.[43]

[66] Industrial Commissioner Caddie was satisfied that the substantive matters in the complaint were complex, and that it was clear from a case management perspective that efficiency would be derived from at least one of the parties being legally represented.[44] The Commission further noted that greater efficiency would be derived from legal representation assisting to ensure that the proceedings remained focussed on issues of fact and law and that both the evidence and submissions will be directed towards the issues that the Commission must ultimately decide.[45]

[67] The Form 85 referral from the QHRC in the present matter records the complaint was accepted in respect of allegations of sex discrimination in the area of work[46], sexual harassment[47], and victimisation[48].

[68] I note that the allegations of various misconduct by the Second and Third Respondents extend over a period from approximately September 2022 through to late June 2023. The more serious allegations of sexual harassment, sexual assault and rape occur in the period from March to June 2023 and involve a number of different allegations during that period. In light of this, I would assess the matter as being factually complicated.

[69] There are three respondents, including a corporate respondent. The complaint alleges that the First Respondent company, is vicariously liable for the alleged actions of the Second and Third Respondents. This adds a layer of legal complexity to the matter.

[70] It also appears likely that even for the purposes of the conciliation conference there will be areas of significant factual dispute. This will add to the factual complexity of the matter, and further gives rise to a risk that the conduct of the conciliation may go awry or become protracted if unrepresented parties on both sides focus in on those factual disputes.

[71] At the present time, the relief sought by the Complainant as set out in paragraphs 73 to 75 of the Complaint seeks compensation for future economic loss, past economic loss, medical expenses and general damages for hurt and humiliation. The claim has not been quantified, however, it appears likely that the quantum sought by the Complainant will be significant.

[72] To the extent that the compensation sought has not been quantified by the Complainant, there is a lack of clarity in the Complainant's case. This in my view adds a further layer of both factual and legal complexity which will have to be addressed in the conciliation conference.

[73] The Complainant places great emphasis on the fact that the allegations involve the personal conduct of the Second and Third Respondents and for this reason the matter is not factually or legally complex. Complaints that arise under the AD Act regularly involve allegations relating to the personal conduct of the Respondents. Two examples of this in cases that have been determined by the Commission and Industrial Court are Neil v Lee[49], and Golding v Sippel and The Laundry Chute Pty Ltd[50], which both involved allegations of personal conduct by the respective Respondents. Both of those matters still involved legal and factual complexities.

[74] In light of the above, I cannot agree with the Complainant's characterisation that the complaint involves matters of straightforward fact, and not complex law or technical analysis. Claims under the AD Act, particularly as heard in the Industrial Relations Commission are in my view an area of evolving law. I consider the present matter to be one that is both factually and legally complex.

[75] In relation to the issue of the Complainant's reference to what appears to be fictitious case authorities, this is potentially a serious matter because it can be viewed as an attempt to mislead the Commission. If an admitted legal practitioner were to do this, there would be grounds to refer the practitioner to the Legal Services Commission for an allegation of misconduct.

[76] I have undertaken a search to try and confirm the existence of the two authorities cited by the Complainant, and I am satisfied that the two decisions she has cited are not actual decisions of the Commission. The Complainant has not explained in her reply submissions her source for those authorities.

[77] I am therefore satisfied that the Complainant has to some extent relied on artificial intelligence to assist her in preparing her submissions. So that it is clear, I am not criticising the Complainant in seeking out what assistance was available to her to prepare her submissions. However, with information from the internet it is always important to check the accuracy of the information prior to it being submitted to a Court or Tribunal.

[78] In Goodchild v State of Queensland (Queensland Health)[51] ('Goodchild') where a similar instance arose of a self-represented litigant providing fictitious case references, I noted that it was a salutary lesson for litigants in the dangers of relying on general search engines on the internet or artificial intelligence when preparing legal documents.[52]

[79] Given that the Complainant is self-represented, I intend to take the same approach that I adopted in Goodchild and simply afford that part of the Complainant's submissions that deals with the two authorities no weight in determining the two applications.

[80] I also do not accept the Complainant's submission that there is a general approach adopted in the Commission of refusing leave for legal representation in matters where the allegations relate to personal conduct and do not involve complex legal issues. I am not satisfied that there is authority from the Commission which supports this proposition.

[81] I am satisfied that relevant guidance as to the meaning of "complex" was provided by Deputy President Merrell in State of Queensland (Queensland Health) v Hume ("Hume"), where his Honour noted that:

... 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.[53]

[82] I am satisfied that the complaint does have both legal and factual complexity and that the Commission will benefit from the Respondents having legal representation for the initial conciliation conference and if required, the subsequent case management process and further conciliation conference. I am satisfied that the presence of legal representatives for the Respondents will aid in the efficient conduct of the matter by:

Ensuring that their clients are appropriately focussed on reaching a settlement of the complaint.

Ensuring that their clients do not get bogged down in factual disputes.

Providing timely advice to their clients about:

legal issues that may arise during the conciliation process; and

their prospects of success and risks in proceeding to a hearing of the substantive complaints;

Assisting their clients in the further preparation of the matter, including the preparation of Statement of Facts and Contentions to ensure that matters are confined to relevant issues and dealt with concisely as possible.

Their respective professional duties as solicitors and their overarching obligation to the Commission to ensure that the matter is conducted as efficiently as possible.

[83] I am also satisfied that having solicitors acting for the Respondents and speaking for each of the Respondents is likely to make the conduct of the conciliation conference less of a confronting or intimidating event for the Complainant, in comparison to having the Second and Third Respondents speak on their own behalf.

[84] In light of the analysis set out above, I am satisfied that the jurisdictional fact set out in s530(4)(a) of the IR Act has been established and my discretion to grant leave for legal representation has been enlivened. The considerations set out in paragraphs [60] to [67] in my view weigh towards the exercise of a discretion in favour of granting leave.

[85] I have noted the Complainant's contentions regarding the qualifications and professional experience of both the Second and Third Respondents and her view that there is no reason why they are not capable of representing themselves in the conciliation process.

[86] The First Respondent being a corporation is not able to represent itself. The submissions provided on behalf of the First Respondent note that the First Respondent is a business comprising of the Second Respondent and his wife. It has no professional HR department or legally trained personnel. It would therefore be dependent upon representation by the Second Respondent if leave is not granted for legal representation.

[87] The Complainant in her submissions points to the Second Respondent having been involved in court proceedings as an expert witness. In the submissions provided on behalf of the First and Second Respondents it is noted that the Second Respondent has given expert engineering evidence on one occasion. It is further submitted that the Second Respondent himself has no human resources or legal expertise, nor has he ever run any legal proceeding in his own right.

[88] As a consequence, it is contended that the Second Respondent simply does not have the experience or expertise to capably and effectively represent his own interests (and I note, that of the First Respondent) in a complex matter such as this.

[89] The Second Respondent's qualifications and experience as an Engineer, and his involvement in one court proceeding as an expert witness giving relevant engineering evidence, does not in my view place the Second Respondent in a position that he can capably represent himself and the First Respondent in a legally and factually complex claim under the AD Act.

[90] I am satisfied that in those circumstances it would be unfair to the First and Second Respondents to not grant leave for them to have legal representation.

[91] Similar observations apply in relation to the Third Respondent. The Complainant describes the Third Respondent as a senior professional who has managed complex projects and contracts. That may well be correct, but professional competence in his area of expertise is a very different matter to the Third Respondent being able to adequately represent himself in the current proceeding.

[92] In the submissions provided by the Third Respondent, it is noted that he has no human resources or legal expertise. It is further contended that he does not have the experience or expertise to represent his own interests capably and effectively given the complexity of the matter. I also accept that submission and I am satisfied that it would be unfair to the Third Respondent to not grant leave for him to have legal representation.

[93] The Complainant contends that allowing legal representation in the matter would result in an inequitable and unbalanced process, where the Complainant faces a team of professional advocates despite being self-represented.

[94] I note that in Wanninayake v State of Queensland (Department of Natural Resources and Mines),[54] Industrial Commission Neate determined that the decision by an applicant to not engage legal representation did not mean that the respondent should be denied the opportunity to engage legal representation and relevantly held:

... competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts 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.[55]

[95] Given the observations made in the preceding paragraphs, I am not persuaded that the Respondents being granted legal representation impacts the fairness between the parties in this proceeding to the extent that it would weigh in favour of not granting leave for the Respondent to have legal representation.

[96] I am satisfied that for the reasons set out above, the discretion to grant leave for the Respondents to be legally represented has been enlivened and it is appropriate to exercise the discretion to grant leave for legal representation to each of the Respondents.

[97] I confirm that the grant of leave for legal representation only applies to conciliation conferences and the case management process to be conducted by me. If any of the parties seek to have legal representation for the substantive hearing, a further application will be required to be made to the member of the Commission allocated to hear the matter.

[98] Accordingly, I make the following order:

Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Respondents are given leave to be represented by a lawyer for any conciliation conferences and case management processes.

[4] Affidavit of Hamish Angus Procter filed 11 April 2025, [9].

At a glance

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Decision date

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Judgment (233 paragraphs)

Parties

Legislation Cited (2)