Maish v State of Queensland

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

Sillay v State of Queensland (Queensland Corrective Services) [2024] QIRC 082

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

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

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

[1] On 1 July 2025, Ms Megan Maish ('the Applicant') filed an application for reinstatement, pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[2] On 14 August 2025 the State of Queensland (Queensland Health) ('the Respondent') filed an application for leave to be legally represented with an Affidavit of Ms Sarah Kate McRostie pursuant to s 530(1)(e)(ii) of the IR Act.

[3] An unsigned Form 102 was filed by the Applicant on 21 August 2025 objecting to the Respondent's application for leave to be legally represented.

[4] The matter proceeded to a conciliation conference and a conciliation certificate was issued by Deputy President Merrell on 21 August 2025.

[5] On 19 January 2026 the applicant sent an email to the Registry requesting that this matter proceed to hearing.

[6] On 23 January 2026 directions were issued that parties file and serve submissions in relation to the Respondent's application for leave.

[7] The question for determination is whether leave should be granted for the Respondent to be legally represented in the proceedings.

[8] Section 530 of the IR Act relevantly provides:

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

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

(i) all parties consent; or

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

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

(a) it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or

(b) it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or

(c) it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

_Examples of when it may be unfair not to allow a party or person to be represented by a lawyer - _

• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
• a person is from a non-English speaking background or has difficulty reading or writing

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

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

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

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

[36] Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '... the proceedings' to be dealt with more efficiently, having regard to the complexity of '... the matter.'

[37] Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.

[38] Having regard to that context, when s 530(4)(a) of the IR Act refers to '... the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.

[39] By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '... the matter.' Because of the different phrase used, my opinion is that '... the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.

[40] Fourthly, s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.

[41] Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.

[42] Fifthly, if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.

[43] The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.

[44] As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.

[10] The Respondent relies on its earlier submissions filed on 14 August 2025 in support of the Form 101 - Application for leave to be represented by a lawyer.[2]

[11] The Respondent submits that the Commission's task is to determine whether one of the jurisdictional facts in s 530(4) of the IR Act is established and, if so, to exercise its discretion to grant leave if it forms one of the value judgements in those provisions.[3]

[12] The Respondent submits that the Commission can be satisfied that legal representation will enable the proceedings to be dealt with more efficiently, having regard to the proceeding's factual and legal complexity.

[13] Regarding efficiency and complexity under s 530(4)(a) the Respondent submits that:

• The relevant task under s 530(4)(a) is to identify the complexity of the matter and determine how, having regard to that complexity, legal representation would enable the proceedings to be dealt with more efficiently;[4]

• The matter need not be uniquely complex compared to others before the Commission, but its complexity must be considered;[5]

• Legal representation for the Respondent will promote efficiency due to the matter's particular factual and legal complexities, including:

• the need for the Commission to make findings of fact and credit on significantly disputed allegations of assault, sexual assault, and rape of staff, patients, and the Applicant within Princess Alexandra Hospital inpatient units, as well as alleged cover-ups by Respondent officers;

• the novelty of the application, as the Commission has not previously decided a reinstatement application involving the employer's common law right to summarily dismiss for serious misconduct;

• the significant legal context, including prior Commission and Industrial Court of Queensland decisions;

• the Applicant's failure to particularise the relief sought; and

• the involvement of expert medical evidence, which legal representation will assist in framing and testing within the correct legal context.

• The presence of lawyers ensures focus on the relevant issues, as professional counsel demonstrate skill in presenting complex legal arguments concisely to assist the tribunal;[6]

• If leave is not granted, the Respondent would represent itself through Ms Lauren Griffin, Director of Workplace Relations, Metro South Hospital and Health Service ('MSHHS'). This would be less efficient for four reasons:

• Ms Griffin and her team lack the specialist skills of solicitors or counsel experienced in contested Commission hearings, including managing evidence admissibility and examining/cross-examining witnesses;[7]

• Ms Griffin and senior team members may need to appear as witnesses, making it inappropriate for them to also represent the Respondent;[8]

• Ms Griffin's role demands prevent her from dedicating sufficient time to prepare and appear in a manner as helpful to the Commission as dedicated legal representatives;[9] and

• testing witness credibility, including potentially a medical expert, requires experience that Ms Griffin and her team do not possess.[10]

• The Commission will therefore be assisted by experienced legal representatives familiar with its procedures.

[14] The Applicant made extensive submissions relating to the substantive application for reinstatement rather than the Respondent's application for leave to be legally represented.

[15] As to the issue of fairness, the Applicant submits that:

• The Respondent filed its Form 101 application for legal representation only seven days before the conciliation conference, disadvantaging the Applicant and denying her reasonable opportunity to respond fairly before the conference;

• Under s 530(4)(b)-(c) of the IR Act, the Commission must consider fairness between the parties, however allowing a well-resourced government entity like the Respondent to retain extensive external legal representation against a self-represented individual whistleblower creates a significant imbalance and would be unfair; and

• The Respondent, as a State agency, has access to in-house legal staff and resources while the Applicant, an individual with limited resources, is defending her professional reputation and livelihood.

[16] The Applicant submits that leave for external legal representation should be refused. Alternatively, if granted, it should be limited to preserve procedural fairness.

[17] The Applicant's submissions included details of the relief sought in the substantive application for reinstatement.

[18] The Applicant submits that her dismissal was unfair for a variety of reasons and the imbalance from granting extensive legal representation compounds this unfairness.

[19] Further, the Applicant submits that the issues are not legally complex as there was no mention of dismissal until after her whistleblowing engagement with the OHO, referenced in the termination email, and the official termination proceeded only after allowing a death in care.

[20] The Applicant requests the Commission refuse the Respondent's application for legal representation and grant the relief sought above.

[21] The Respondent submits that the Applicant has not identified any new or changed circumstances impacting the question of leave pursuant to section 530(4) of the IR Act, nor any error in the Respondent's earlier submissions.

[22] As the conciliation conference referred to in the Applicant's Form 102 has now passed, the Respondent understands the Applicant maintains the following objections:

• the Respondent is a well-resourced government entity, and granting leave for legal representation while the Applicant is self-represented would create a significant power imbalance and be unfair; and

• the Respondent has access to in-house legal resources.

[23] The Respondent submits that neither objection constitutes a compelling countervailing consideration sufficient to warrant refusal of leave where the statutory preconditions under section 530(4) of the IR Act are met.

[24] As to the first objection regarding the Respondent's resources and fairness, the Respondent submits that:

• The Applicant's first objection is premised on a concern that the Respondent's financial resources will confer an unfair advantage through legal representation and that this concern is misplaced;

• The Model Litigant Principles inform the exercise of discretion by demonstrating that legal representation will promote, rather than hinder, fairness and efficiency;

• As observed by Industrial Commissioner Neate in Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake'),[11] the Applicant's self-representation is not a reason to deny the Respondent legal representation, particularly in this factually and legally complex matter.

[25] As to the second objection regarding the Respondent's in-house legal resources, the Respondent submits that:

• The Applicant's second objection asserts that the Respondent can fairly represent itself due to internal legal resources, which conflates the availability of resources with the ability to effectively represent the Respondent's interests in this proceeding;

• MSHHS' Employment Relations team has carriage of matters before the Commission.[12] Ms Griffin lacks the specialist skills of a solicitor appearing at contested hearings before the Commission, as does her team,[13] where the matter will require testing the credibility of witnesses, potentially including a medical expert, for which Ms Griffin and her team lack experience;[14]
• It would be inappropriate for Ms Griffin and senior team members to represent the Respondent at any hearing where they may need to appear as witnesses;[15]

• For these reasons, and those in the Respondent's earlier submissions, it would be unfair for the Respondent to navigate the proceedings without legal representation, and the Commission will be assisted by the expertise of legal representatives; and

• As such, this objection should also be rejected.

[26] Overall, the Respondent submits that leave can be granted because the preconditions in s 530(4) are met and the Applicant has not identified any compelling countervailing consideration that would warrant refusing leave, where legal representation will assist the Commission and promote the efficient and fair resolution of the matter.

[27] 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 the matter arises under s 530(1) and, pursuant to s 530(4):

(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.

[28] In Sillay v State of Queensland (Queensland Corrective Services) ('Sillay'),[16] President Davis referred to the following observations made by Vice-President O'Connor in State of Queensland (Department of the Premier and Cabinet) v Dawson ('Dawson'):

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

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

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

[29] Section 530(4)(a) provides that leave may be granted if it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. In an Affidavit filed on 20 February 2026, the Applicant stated that 'none of the issues listed in the termination are legally complex'. It is not unusual for applicants to view their own cases as straightforward, however, the process by which the application is heard often involves a level of complexity beyond their initial expectation.

[30] In this matter, the material filed to date includes serious allegations of criminal conduct occurring within inpatient units at a public hospital. The subject matter outlined in the Applicant's 'Form 102 Schedule' identifies a range of issues of varying complexity that will require factual findings along with findings of credit. In addition, medical evidence is likely to be led requiring cross-examination of medical witnesses.

[31] In Wanninayake, Commissioner Neate stated the following:[17]

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

[32] I note Respondent's submission that this Commission has not previously decided a reinstatement application relevant to the exercise of an employer's common law right to summarily dismiss an employee for serious misconduct. I consider that the novel nature of such an application adds to the complexity of the matter.

[33] On the basis that disputed factual claims involving serious conduct will need be determined and novel questions of law must be considered, I am of the view that granting leave will enable the proceedings to be dealt with more efficiently by ensuring the focus remains on the matters in issue.

[34] I am satisfied that the Commission will be assisted by the presence of legal representatives to ensure the matter proceeds efficiently as a consequence of this complexity.

[35] The Applicant submits that if leave is granted, such leave be 'limited in scope'. It is unclear what is meant by this submission. Having determined that granting leave will enable the proceedings to be dealt with more efficiently, it is open to the Respondents to be represented by legal practitioners instructing counsel.

[36] In relation to the benefit of counsel, in Peck v Workers' Compensation Regulator, Deputy President Merrell stated the following:[18]

... The forensic skills of private counsel include concisely identifying the relevant issues for the determination of disputed matters in a proceeding, to lead only relevant evidence about such matters and to cross-examine witnesses only on relevant matters so as to permit the Commission to efficiently determine the ultimate question that needs to be determined. In addition, counsel can significantly reduce the time for the hearing of an appeal by addressing their client's submissions only to relevant matters, by concisely summarising the evidence and the law and by efficiently assisting the Commission to determine the issue in contention.

[37] The Applicant submits that allowing the application will result in unfairness between the parties on the basis that she remains self-represented. As observed in Wanninayake,[19] the fact that one party, either by choice or circumstances, is not represented by a lawyer is not a reason to deny the other party legal representation.

[38] The professional duties of legal representatives were considered in Sillay v State of Queensland (Queensland Corrective Services),[20] with the following observations made by Deputy President Hartigan:[21]

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

[39] The Respondent is bound by the Model Litigant Principles which promote fairness by facilitating proper case and courtroom management and the efficient conduct of the proceedings. As considered by Vice President O'Connor in Dawson, proper case and courtroom management assists self-represented parties in balancing fairness throughout the proceeding.[22]

[40] The Applicant submits that the application should not be granted on the basis that the Respondent is able to rely upon its extensive resources to represent its interests in this matter.

[41] I accept the Respondent's submission and the evidence contained in the Affidavit of Lauren Griffin dated 6 February 2026 that the MSHHS' Employment Relations team do not have the specialist skills of a solicitor for the purposes of appearing at a contested hearing at the Commission. In addition, Ms Griffin and other members of her team are potential witnesses at a hearing of this matter. In these circumstances it would not be appropriate for the Respondent to utilise this team to represent its interests at hearing.

[42] This application satisfies s 530(4)(a) and having considered the submissions from both parties, I am satisfied that my discretion should be exercised to grant leave for the Respondent to be legally represented.

1. Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).

I certify that the preceding [43] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Power.

J.M. POWER, Industrial Commissioner: ....................................

[1] [2022] ICQ 001 ('Hume').

[2] Affidavit of Sarah Kate McRostie filed on 14 August 2025, Exhibit SKM-1.

[3] Hume (n 1), [34]; Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16, [31]-[32]

[4] Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16, [35].

[7] Affidavit of Lauren Griffin filed 6 February 2026 ('Affidavit of Lauren Griffin'), Exhibit LG-1 at [8]-[9].

[10] Ibid, Exhibit LG-1 at [8]-[9].

[11] [2014] QIRC 079 ('Wanninayake'), 6-7.

[12] Affidavit of Lauren Griffin (n 7), Exhibit LG-1 at [3]

[13] Ibid, Exhibit LG-1 at [8]-[9].

[15] Affidavit of Lauren Griffin (n 7), Exhibit LG-1 at [7].

[16] [2024] ICQ 16 ('Sillay'), [20].

[18] [2022] QIRC 189, [24].

[22] [2021] QIRC 118 ('Dawson')