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

Industrial Relations Act 2016 (Qld) s 529, s 530

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

Mullins v Jacjas Real Estate Pty Ltd & Ors [2024] QIRC 142

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

• [1] In May 2022, Ms Jordan Kempster ('the Complainant') complained to the Queensland Human Rights Commission ('the QHRC'), alleging contraventions of the Anti-Discrimination Act 1991 (Qld) ('the Anti-Discrimination Act').
• [2] The QHRC referred Ms Kempster's complaint to the Queensland Industrial Relations Commission ('the Commission'). The referral was received in the Industrial Registry on 3 August 2023. Conciliation ensued but the matter has not resolved. It is now before me for hearing and determination.
• [3] Ms Kempster seeks leave to be represented by Mr C. Watters of counsel, instructed by Work Rights Australia Pty Ltd ('Work Rights Australia'). Work Rights Australia is an industrial advocacy firm, not a law firm, and was listed on the face of the referral from the QHRC as being as Ms Kempster's representative.
• [4] This decision is the determination of whether leave should be granted for Ms Kempster to be legally represented in these proceedings. It is also the determination as to whether leave is required in order for counsel to be instructed by an unpaid agent, and, if so, whether leave can and should be granted.

• [5] The First and Second Respondents were granted leave to be legally represented by order dated 20 October 2023. In these proceedings they have previously been, but are not presently, legally represented. No other respondent has been granted leave to be legally represented.
• [6] The Complainant filed an application for leave to be represented by a lawyer[1] on 24 May 2024, and the required supporting affidavit[2] on 10 June 2024. The Complainant also filed submissions as to representation by an agent on 24 May 2024. The Complainant's affidavit went to, inter alia, the basis for the complaint and her view that the matter is complex. She affirmed that she was not legally trained, and that she had limited capacity to argue her case and represent herself in these proceedings.
• [7] Previously, in a document of 16 April 2024, Mr Watters had informed the Commission that Work Rights Australia is not a paid agent and has not charged fees in relation to this matter since it was referred to the Commission. He stated the role of Work Rights Australia was to instruct counsel and attend to the filing, service, and related administrative tasks which counsel is prevented from doing by rr 15 and 17 of the Bar Association of Queensland 2011 Barristers' Rule, as amended ('the Barristers' Conduct Rules').
• [8] The First and Second Respondents oppose any grant of leave for the Complainant to be legally represented or for representation by Work Rights Australia. They filed their response, supporting submissions, and an affidavit of the Second Respondent,[3] on 17 June 2024. The Second Respondent's affidavit went to, inter alia, whether the complainant had been and/or was qualified to be employed by the First Respondent (a corporate entity), factual matters in relation to the complaint, and his view that the matter is not complex. The Second Respondent affirmed he was also not legally trained.
• [9] The other Respondents did not file any response.

• [10] The QHRC referred this complaint to the Commission pursuant to s 166 of the Anti-Discrimination Act. Section 174B sets out the Commission's functions in relation to referred complaints. By operation of section 174C the Commission may exercise any powers conferred on it under that Act or under the Industrial Relations Act 2016 (Qld) ('the Industrial Relations Act').
• [11] Chapter 11, part 5, division 3 of the Industrial Relations Act, headed 'Conduct of proceedings,' contains ss 529 and 530. Section 529(1) relevantly provides that a party may be represented in the proceedings by:

(a) a lawyer, only in accordance with section 530; or

(b) another person appointed in writing as the agent of the party or person, only with the leave of the industrial tribunal conducting the proceedings.

• [12] Section 530 of the Industrial Relations Act relevantly provides that for proceedings before the Commission, other than the full bench, under the Anti-Discrimination Act, a party may be represented by a lawyer only if the Commission gives leave. The effect of subsection 530(4) is that the Commission may give leave 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 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.

• [13] If the Commission forms one or more of those three value judgements, a discretion arises as to the granting of leave for representation in the proceedings. Once the relevant judgement 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.[4]
• [14] In this case, the Complainant seeks to be represented by counsel and has referred to the Barristers' Conduct Rules. Those rules are made pursuant to s 220 of the Legal Profession Act 2007 (Qld). They are binding on barristers, and a barrister's failure to comply with them can constitute unsatisfactory professional conduct or professional misconduct.[5]
• [15] As to representation by an agent, subparagraph 529(2)(a) relevantly provides that the party may not be represented by a person who directly or indirectly demands or receives a fee for representing them. No party has claimed that subparagraph 529(2)(b) applies. It is not presently relevant.
• [16] By operation of subsection 529(3), relevantly the Commission can give leave to a party to be represented by an agent only if at least one of the three tests in that subsection is met. The three tests are in materially the same terms as those set out in subsection 530(4) regarding lawyers, but apply in a different context, with the circumstances to be considered relating to agents not lawyers.[6] The application of these tests will turn on the particular facts and the particular complainant.[7]

Complainant's submissions as to legal representation

• [17] The Complainant's submissions as to legal representation included:

(a) granting leave for her to be legally represented would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;

(b) there are complex issues of fact and law to be determined in this case;

(c) because she is not legally trained, and would be unable to properly, thoroughly, and ably represent herself, it would be unfair not to allow representation in this matter having regard to its complexity;

(d) given she is an individual litigating against five respondents, one of which is a corporate body, it would be unfair not to allow her legal representation;

(e) the granting of leave for an experienced industrial lawyer who is better able to identify and deal with the real issues of the case not only goes to efficiency, but also fairness between the parties;[8] and

(f) she did not and does not object to the Respondents being granted leave to be legally represented.

First and Second Respondents' submissions as to legal representation

• [18] The First and Second Respondents made submissions that subsection 530(4) has not been satisfied. Their submissions included the following:

(a) the matter is not complex;

(b) the Complainant has shown evidence of her capabilities by collating 120 pages of carefully selected evidence, including screen shots, text messages, company emails, communications, and photos;[9]

(c) it is obvious that the Complainant "is across" the proceedings, and it would not disadvantage her or be unfair for her to continue unrepresented;

(d) though there might be aspects of the law of which the Complainant is unaware, or might find complex "on the rare occasion", the Respondents are also not legally represented and will face the same challenges, and so refraining from granting leave would leave the parties on a level playing field and would be fair to all parties;

(e) the matter has not progressed or been more efficient with legal representation, and if all parties were self-represented the matter would have proceeded and been expedited; and

(f) though the First Respondent is a corporation, its interests are being handled by the Second Respondent who is not a lawyer, is self-represented, and "does not provide any advantage to these proceedings in any capacity."

• [19] The First and Second Respondents also made submissions as to whether counsel had been or was receiving fees.

• [20] This matter is complex. In making this finding I have had regard to considerations such as the nature of the proceedings, the number of parties, and the matters in issue, and I make the following observations:

(a) there are five respondents, one of which is a corporate entity;

(b) the Statement of Facts and Contentions, and the First and Second Respondents' Response, show that the issues include discrimination on the ground of sex, sexual harassment, unlawful requests for information, and victimisation;

(c) contravening the prohibition on victimisation can attract civil penalties,[10] which emphasises the seriousness of such an allegation;

(d) there are serious allegations of sexual harassment, which the Second Respondent considers should have been referred to the police for investigation;[11]

(e) it is in issue whether the First Respondent is vicariously liable for other Respondents' conduct;

(f) it is also in issue whether the appropriate comparator in relation to the discrimination claim is an actual comparator or a hypothetical comparator; and

(g) there are likely to be many issues of fact given the First and Second Respondents' denials of the Complainant's "version of events," their denial that any of the acts were unsolicited, and their contention that a reasonable person would not have anticipated the possibility that that Complainant would be offended, humiliated, or intimidated by the conduct.

• [21] When the matter was before the QHRC, the Complainant was represented by industrial advocates. It is likely she had assistance in compiling the materials that were before the QHRC. The submission that the Complainant "is across" the matter does not persuade me that the matter is not complex.
• [22] The Commission will be put to the task of determining complex issues of fact and law. Neither the Complainant, nor the Second Respondent, is legally trained. Legal representation will make it more likely that witnesses will be skilfully examined and cross-examined, which assists the Commission in deciding issues of fact. Legal representation will also make it more likely that the Commission will receive submissions that are legally sound, compliant with professional ethics and rules, and consistent with lawyers' paramount duty to the administration of justice.
• [23] Efficiency includes timeliness.[12] Though there has been some delay in this matter while the issue of the Complainant's representation has been considered, the involvement of lawyers has otherwise been conducive to timeliness in these proceedings. By way of example, prior to the First and Second Respondents being legally represented, they and the other Respondents failed to comply with an order to file their Responses by a given date. The First and Second Respondents then obtained legal representation. Their lawyer was able to attend a mention the day after obtaining instructions and obtain a new set of directions contemplating the filing of Responses, with which the Respondents then complied. The involvement of lawyers also gave rise to greater efficiency in that those pleadings were drafted with the benefit of legal experience, knowledge, and skill. Skilled drafting of pleadings can contribute to efficiency in complex matters by narrowing the issues.
• [24] These considerations support the proposition that giving leave for the Complainant to be legally represented would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.
• [25] Further, it would be unfair not to allow the Complainant to be represented having regard to fairness between her and other parties in the proceedings. The First and Second Respondents have had leave to be legally represented since October 2023. The Complainant did not object to their being granted leave. They are presently self-represented but that could change, given the existing grant of leave, without their having to make further application to the Commission.
• [26] Whether counsel is paid, or not, is irrelevant to the question of whether the Complainant should have leave to be legally represented.
• [27] The discretion to grant leave for the Complainant to be legally represented is enlivened. Having regard to the same considerations, I exercise that discretion and grant leave for the Complainant to be legally represented.

Complainant's submissions as to representation by an agent

• [28] The Complainant submissions included that:

(a) Work Rights Australia has not charged fees since the amendment to s 529 of the Industrial Relations Act (to prohibit paid agents);

(b) Work Rights Australia was already and lawfully acting for the Complainant when the matter was before the QHRC and should be permitted to continue to act in the matter in the Commission;

(c) the role and function of Work Rights Australia now that the matter is before the Commission is a perfunctory or administrative role (involving filing of documents, receipt of notices, conveying instructions, etc) which does not amount to "representation" per se; and

(d) if leave is granted for the Complainant to be legally represented, then legal representation will be provided by counsel not Work Rights Australia.

First and Second Respondents' submissions as to representation by an agent

• [29] The First and Second Respondents took issue in relation to whether counsel is being paid.
• [30] They made a submission to the effect that if Work Rights Australia is paying counsel's fees that necessitates the conclusion that it must be a paid agent.
• [31] Their submissions also went to the ownership of Work Rights Australia, and to the involvement in this matter of "Australian Workplace Law." This was not dealt with in the affidavit they provided in support of their response to the application.

• [32] No party has claimed any transitional provisions apply in respect of representation by an agent. This matter was referred to the Commission on 3 August 2023, well after the reforms to prohibit paid agents took effect.
• [33] Mr Watters has represented to the Commission via the Industrial Registry, in his document of 16 April 2024, that Work Rights Australia is not charging fees for this matter and has not done so since the matter was referred to the Commission.
• [34] The affidavit that the First and Second Respondent filed in relation to this application did not contradict Mr Watters' representations as to the unpaid nature of Work Rights Australia's involvement, address the ownership of Work Rights Australia, or address the involvement of "Australian Workplace Law."
• [35] As stated above, Mr Watters is a barrister and bound by the Barristers' Conduct Rules. By operation of those rules, his paramount duty is to the administration of justice.[13] Those rules prohibit him from engaging in, inter alia, conduct which is dishonest or otherwise discreditable to a barrister, or prejudicial to the administration of justice.[14] Because of the potential significant consequences for him if his representations to the Commission about the unpaid nature of the work being performed by Work Rights Australia were not properly made, and given the absence of any evidence otherwise, I accept that Work Rights Australia is not directly or indirectly demanding or receiving a fee for representing the Complainant.
• [36] There is no basis on the material for me to look behind Mr Watters' representation that he is instructed in this matter by Work Rights Australia, or to seek to explore the terms on which he has been briefed.
• [37] It may be the arrangement that counsel would issue any fee notes to Work Rights Australia, not to the Complainant personally. If the Complainant makes payment to Work Rights Australia in an amount no greater than, and for no purpose other than to cover, counsel's fees, then that does not of itself give rise to a finding that Work Rights Australia is demanding or receiving a fee.
• [38] In the circumstances, subsection 529(2)(a) is not an impediment to Work Rights Australia representing the Complainant in these proceedings.
• [39] I do not accept that the work involved in being the conduit between the Industrial Registry and the Commission, counsel, other parties, and the party by whom an agent is appointed, is perfunctory. I do not accept the submission that this work does not constitute representation. Work Rights Australia will not be able to be on the record and participate in this matter in the absence of a grant of leave pursuant to subsection 529(1).
• [40] I have considered the word "or" as it appears in subsection 529(1). I do not consider the use of this word to imply that a party cannot be represented by more than one representative. Given legal representation contemplates, inter alia, representation by counsel, it must necessarily be anticipated that there be instructors as well, given the limitations on barristers accepting direct briefs.[15]
• [41] Nor do I consider the word "or" to signify that a party can be represented by only one type of representative. Rather it indicates that a person can be a representative in only one of the capacities listed in that subsection.
• [42] It is therefore open to me to consider whether the discretion in subparagraph 529(1)(e) is enlivened having regard to subsection 529(3), and, if so, whether it should be exercised.
• [43] The considerations in subsection 529(3) are consistent, with necessary changes, with those in s 530(4) regarding legal representation. Nonetheless different considerations arise in relation to the efficiency that may be derived from the involvement of a lawyer than that which may be derived from the involvement of an agent.
• [44] In this case it is not proposed that the agent undertake any advocacy. Its role is to perform only such work as is not "barristers' work" within the meaning of that term for the purposes of the Barristers' Conduct Rules. If leave is not given for it to do so, then at least unless and until other arrangements could be made, Mr Watters would have no instructor. This would give rise to obvious difficulties.
• [45] I have set out, above, my reasons for finding that this matter is complex. Having an agent that can be responsive to correspondence from the Industrial Registry and other parties, and to undertake the part of the work of representation that does not fall within the scope of "barristers' work," will make the conduct of the remainder of this matter more efficient than it would be if leave was not granted.
• [46] Giving leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. Accordingly, I find the discretion is enlivened, pursuant to subparagraphs 529(1)(e) and 529(3)(a) of the Industrial Relations Act. Having regard to the same considerations, I exercise the discretion and grant leave for the Complainant to be represented by Work Rights Australia on a pro bono basis, but only while private counsel is engaged and only in relation to work that is not barristers' work.

• [47] I make the following orders:
  1. Leave is granted for the Complainant to be legally represented.
  2. Leave is granted for the Complainant to be represented by Work Rights Australia Pty Ltd on a pro bono basis, provided such grant of leave applies only while the Complainant is represented by private counsel in reliance on order 1 of these orders, and only in relation to work that is not barristers' work within the meaning of that term for the purposes of the 2011 Barristers' Rule, as amended.

[1] Form 101; see also Practice Direction 1 of 2023.

[2] Affidavit of the Complainant affirmed 7 June 2024.

[3] Affidavit of the Second Respondent affirmed 16 June 2024.

[4] State of Queensland (Queensland Health) v Hume [2022] ICQ 001 (Merrell DP) at [34]-[44].

[5] Legal Profession Act 2007 (Qld) s 227.

[6] Mullins v Jacjas Real Estate Pty Ltd & Ors [2024] QIRC 142 (Pratt IC) at [10]-[11].

[7] Rozendaal v State of Queensland (Queensland Corrective Services) [2024] QIRC 135 (Caddie IC) at [33].

[8] Relying upon Construction Forestry Mining & Energy Industrial Union of Employees (CFMEU) v Toowoomba Regional Council [2018] QIRC 132 (Bloomfield DP).

[9] They referred to this material as being contained within the Complainant's Statement of Facts and Contentions, but I have taken them to be referred to the QHRC referral.

[10] Anti-Discrimination Act 1991 (Qld) s 129.

[11] Affidavit of the Second Respondent affirmed 16 June 2024, at [19] and [22].

[12] State of Queensland (Queensland Health) v Hume [2022] ICQ 001 at [41].

[15] See 2011 Barristers' Rule rr 15, 17 and 24B.