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

• [20] However, the Respondent submits that Mr Heffernan has already indirectly received a fee for the proposed services in this matter. In support of this submission, the Respondent points to the fact that Mr Heffernan was, at the relevant time, a shareholder of both Supportah Australia Pty Ltd and Industrial Advocates Australia Pty Ltd, two industrial relations advocacy firms that the Applicant engaged one of for the purposes of running these proceedings. The Respondent submits that Mr Heffernan thereby has, at least indirectly, received a fee.

• [21] The Respondent also submits that the arrangements for payment between the Applicant and either of the two firms "are, to put it mildly, opaque and are not directly addressed" by the Applicant. The Respondent notes how there were arrangements for payment between Industrial Advocates Australia Pty Ltd and the Applicant's former solicitor.

• [22] The Respondent then submits that Industrial Advocates Australia Pty Ltd is incapable of representing the Applicant in these proceedings because they are a paid agent.

• [23] The Respondent makes a number of submissions going to whether there was a clear break between advocates and lawyers, and notes that it is telling that:

1. Mr Heffernan knew of Mr Dryley-Collins' absences from work & the reasons for those absences;

1. Mr Dryley-Collins gave notice to Industrial Advocates Australia;

1. Mr Walton's response to this notice was not to contact the clients but rather to contact Mr Heffernan;

1. Mr Heffernan saw it as his role to talk to Mr Dryley-Collins about how Mr Walton was going to manage the transition.

• [24] The Respondent also submits that the Commission should conclude that Mr Heffernan's representation of the Applicant is part of the normal practice of Supportah Australia Pty Ltd. That submission is based on the fact that the relevant disclosure notice that was put into evidence reveals that it is normal business practice for licensees to volunteer to perform work for other licensees.

• [25] The Respondent also submits that it is readily apparent that Mr Heffernan is acting on the instructions of a representative from Industrial Advocates Australia Pty Ltd. It submits that Mr Heffernan was acting on instructions from the former solicitor that were obtained in March 2024, which was before Mr Heffernan obtained any instructions from the Applicant.

• [26] The Respondent submits that altogether the Applicant has already engaged Industrial Advocates Australia Pty Ltd as a paid agent for representation in the proceedings and that Mr Heffernan is seeking to appear at the request of that paid agent. The Respondent submits that, in circumstances where that paid agent is incapable of representing the Applicant, the application "is a colourable attempt to circumvent" s 529(2).

• [27] As to the efficiency consideration, the Respondent submits that Mr Heffernan is not bound by the high standards of competency and conduct that lawyers are bound by. The Respondent also points out that, even in these interlocutory proceedings, Mr Heffernan has been unable to confine himself to the relevant matters. In support of these submissions, the Respondent points to the discursive and prolix nature of affidavit evidence filed by Mr Heffernan that went beyond his own professional history and into "his relationships with people and matters entirely unconnected with the present proceedings", which included "numerous gratuitous references to his dog" and a brief sojourn into "his desire to live in Romania." The Respondent submits that Mr Heffernan's:

failure to confine his affidavit to [relevant matters] gives rise to a real apprehension that any representation by Mr Heffernan will be detrimental to the efficient conduct of the proceedings and will not be confined to the relevant and real issues in the proceedings.

• [28] The Respondent concludes that, for the reasons outlined above, the Commission should find that Mr Heffernan is a paid agent or, if the Commission finds that Mr Heffernan is not a paid agent, it should refuse the Application because:

1. giving leave to Mr Heffernan would not enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;

1. Mr Heffernan is acting at the request of Industrial Advocates Australia, a paid agent that is prohibited from representing the [Applicant]; and

1. Mr Heffernan is volunteering as part of a business practice that is a colourable attempt to avoid the prohibition on paid agents.

• [29] I also issued directions on 16 May 2024 requiring the Applicant, who is the Complainant in the substantive proceedings, to answer, in an affidavit, 'yes' or 'no' to the following questions:

a. Is Mr Heffernan directly demanding a fee for representing the Complainant?

b. Is Mr Heffernan indirectly demanding a fee for representing the Complainant?

c. Is Mr Heffernan directly receiving a fee for representing the Complainant?

d. Is Mr Heffernan indirectly receiving a fee for representing the Complainant?

1. Is the Complainant paying any fee to any person or entity for services in relation to these proceedings?

• [30] The Applicant complied with those orders. The answer to each of those questions was 'no' in the Applicant's affidavit. Mr Heffernan to also put on affidavit evidence responding to the same questions, although pertaining to him personally. Mr Heffernan, in his affidavit, also answered 'no' to all of the questions.

• [31] I have considered all materials from both the Applicant and the Respondent. In delivering my reasons below, I have only referred to the relevant materials.

• [32] The Respondent contends that I must refuse leave as Mr Heffernan has likely already indirectly been paid a fee for his services in representing the Applicant in these proceedings. This indirect fee, the Respondent submits, comes from Mr Heffernan's association with the entity that previously had financial ties with the lawyer acting for the Applicant.

• [33] I am sympathetic to the Respondent's submission that the Applicant's and Mr Heffernan's affidavit and submissions about the fee arrangement is not as clear as one might hope. The Applicant's carefully worded affidavits and submissions has placed the arrangement between the Applicant, Mr Heffernan and the two industrial advocacy firms behind frosted glass. Nonetheless, the affidavit evidence filed by both the Applicant and Mr Heffernan allows me to see that arrangement clearly enough to be satisfied from the evidence that Mr Heffernan is not, either directly or indirectly, receiving or demanding any fee for representing the Applicant in these proceedings. I am also satisfied that the Applicant is not paying any fee to any person or entity for representation in these proceedings.

• [34] But what of any fee that the Applicant previously paid to an entity, of which Mr Heffernan was a shareholder at the relevant time? The Respondent's argument is that such a payment in the past still counts and therefore Mr Heffernan cannot appear. For the following reasons, I do not accept that submission.

• [35] On my assessment, any past payment the Applicant made to the solicitor and his firm was not a payment for Mr Heffernan to represent the Applicant in the proceedings. At all times prior to this application, a lawyer was engaged by the Applicant as her representative in the proceedings. That lawyer acted as such, having been granted leave to do so. I do not accept that at the time the Applicant entered into any such arrangement, she was paying a fee, even indirectly, to Mr Heffernan for Mr Heffernan to represent her in the proceedings.

• [36] I am therefore satisfied that the Applicant is not seeking to be represented by a person who directly or indirectly demands or receives a fee for representing the Applicant in the proceedings. It falls to the Commission to then deal with the three abovementioned considerations within s 529(3) to see if the discretion is enlivened.

• [37] Ms Mullins argues that Mr Heffernan is an experienced industrial relations advocate who has expertise in the process of the Commission that she does not possess. The Applicant's submission is that, having regard to the complexity of the matter, the matter would be more efficiently dealt with if Mr Heffernan were to represent the Applicant than if she ran the matter by herself.

• [38] The Respondent argues that that experience does not equate to efficiency. Indeed, the Respondent points to florid, voluminous, and largely irrelevant materials filed by Mr Heffernan. The Respondent contends that this conduct contradicts submissions that Mr Heffernan will aid in the matter being dealt with more efficiently than if the Applicant was to run the matter by herself. There is some force to those submissions. Mr Heffernan's materials filed in this application were indeed voluminous. Much of that material was irrelevant to this issue. Mr Heffernan submitted that the material covered a large body of background information which was presented in the interests of full transparency.

• [39] I do not consider this matter to be a particularly complex one. It has been made to appear unnecessarily complex due to a proliferation of alleged unlawful reasons for alleged instances of unfavourable treatment. But the statements of facts and contentions I am referring to were not prepared by Mr Heffernan. And during the hearing of this application, Mr Heffernan gave very clear undertakings to the Commission as to efficiency on this issue. That included a concession as to the benefits of narrowing the issues to be litigated, subject of course to the Respondent's view on such an endeavour and the Commission's supervision of such potential recasting of the issues.

• [40] Whilst I have reservations, I expect that there should be greater efficiency with Mr Heffernan representing the Applicant in these proceedings as compared to the Applicant running the matter by herself. Whilst not a particularly complex central allegation, the case has been made so by being obscured in the notice of facts and contentions under a multitude of alternative attributes, which are not clearly stated to be the basis for the alleged contraventions of the AD Act. Mr Heffernan has undertaken to clarify the case to be heard and that will assist with efficiently dealing with the matter in my opinion. On that basis, I find that the consideration at s 529(3)(a) is made out.

• [41] However, even if it turns out that I am wrong about the efficiency consideration, the two fairness elements within ss 529(3)(b) and (c) loom large. The first fairness consideration, at s 529(3)(b), is whether it would be unfair not to allow the Applicant to be represented by Mr Heffernan because she is unable to represent herself. The Applicant does not have any experience or training in adversarial proceedings of this nature. I accept that the Applicant would struggle to be able to represent herself. Even if she were able to adduce her own evidence in chief, she will not be able to prepare re-examination questions for herself whilst she is being cross-examined. As well, the outcome of this matter will very much turn on findings of contested facts. Cross-examination of the Respondent's witnesses is something the Applicant needs to be able to do in order to represent herself in the matter. I am satisfied that this is something that the Applicant is unable to do. Accordingly, I find that it would be unfair not to allow the Applicant to be represented by Mr Heffernan on a pro bono basis because the Applicant is unable to represent herself in the matter. It follows that the consideration at s 529(3)(b) is made out.

• [42] The second fairness consideration within s 529(3)(c) goes to fairness as between the parties. In this case, as I have mentioned above, the Respondent employer is represented by solicitors who have briefed counsel. The Applicant's unchallenged evidence is that she has no way of engaging another lawyer, which I accept. The Commission has already granted the Applicant leave to be represented by a lawyer in these proceedings. Granting the leave that is now sought would avail the Applicant of free representation by an experienced industrial relations practitioner. Having regard to the Respondent's position, which I must when weighing up the consideration of fairness as between the parties, I find that it would be unfair to the Applicant to refuse her application for representation. On that basis I conclude that the consideration at s 529(3)(c) is also made out.

• [43] I conclude that the Applicant is not applying to be represented by a person who directly or indirectly demands or receives a fee for representing her in these proceedings. I have some reservations that greater efficiency in dealing with this matter will result from granting this application, although I expect there to be such efficiency as has been promised. Even so, I find it a compelling conclusion that it would be unfair to the Applicant not to grant her application to be represented by Mr Heffernan on a pro bono basis.

• [44] On that basis, I conclude that the discretion within s 529(3) is enlivened. Having regard to the facts of this case, I am of the view that it is appropriate in this instance to exercise the discretion in favour of granting the application. I order accordingly.

1. The Applicant may be represented by Mr Heffernan in these proceedings on a pro bono basis.

[1] [2017] HCA 34, [14] (Kiefel CJ, Nettle and Gordon JJ).

[2] Explanatory Notes, Introduction, Industrial Relations and Other Legislation Amendment Bill 2022 (Qld) 4.

[3] Explanatory Notes, 3RD Reading, Industrial Relations and Other Legislation Amendment Bill 2022 (Qld) 6.