Perry v State of Queensland

State of Queensland (Queensland Health) v Hume [2022] ICQ 1

• [1] Ms Sandra Andrea Perry ('the Applicant') has filed an application for reinstatement.

• [2] Throughout the life of this matter, including the two previous listings of this matter, the State of Queensland (Queensland Health) ('the Respondent') has sought and been granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act')

• [3] At the mention of the matter before me on 6 May 2025, the Applicant's representative, the Australian Workers' Union of Employees, Queensland ('AWU'), objected to leave being granted for the Respondent to be legally represented at the hearing of the matter.

• [4] Ms Perry commenced employment with the Respondent in September 2013. At the time of her dismissal, Ms Perry was employed as a Team Leader, Operational Services (OO4) at the Gold Coast University Hospital within the Gold Coast Hospital and Health Service ('GCHHS').

• [5] On 17 June 2024, Ms Perry was advised that her employment was terminated effective immediately as a result of the Respondent's substantiation of two allegations of misconduct.

• [6] I note that the substantiation of the allegations has been subject to the Applicant's unsuccessful public sector appeal as well as an unsuccessful appeal of that decision. Ultimately, the substantiation of the allegations was upheld and the Respondent determined to terminate Ms Perry.

• [7] On 3 July 2024, Ms Perry filed an application for reinstatement in the Industrial Registry. Ms Perry says that her dismissal was unfair pursuant to s 316 of the IR Act due to:

• There not being a valid reason for the dismissal;

• The outcome of dismissal being disproportionate to the gravity of the misconduct; and
• The economic and personal consequences on Ms Perry as a result of her dismissal.

• [8] Prior to the conference of the matter before Deputy President Merrell, the Respondent filed a Form 101 - Application for leave to be represented by a lawyer in certain proceedings and supporting affidavit of a solicitor in the employ of MinterEllison on 30 July 2024. This was dealt with at the outset of the conference, and leave was granted at the conference for the Respondent to be legally represented.

• [9] As the matter did not settle at conference before Deputy President Merrell, the Applicant's representative advised, on 17 April 2025, that Ms Perry wished to proceed with her application.

• [10] The matter was listed for mention to which the Respondent's representatives filed another Form 101 and supporting affidavit seeking that leave be granted for legal representation for the purposes of the mention.

• [11] I granted leave for the Respondent to be legally represented at the mention during which the Applicant's representative advised that they would object to any subsequent applications of the Respondent for leave to be legally represented.

• [12] Following this, I issued directions seeking submissions from the parties about the issue of legal representation.

• [13] Section 529 of the IR Act relevantly states:

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

(a) a lawyer, only in accordance with section 530 ...

• [14] 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 -

(e) 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

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.

• [15] In Sillay v State of Queensland (Queensland Corrective Services)[1] the Industrial Court of Queensland considered the statutory construction of s 530 and determined:

[30] Section 529(1)(a) prohibits representation of a party by a lawyer except in accordance with s 530. By s 530(1)(e), proceedings before the QIRC15 may involve legal representation only by leave. The bases upon which leave may16 be given are prescribed by s 530(4).

[31] The circumstances upon which a lawyer may appear before the QIRC are governed by ss 529 and 530 of the Act. If the discretion arises under s 530(4) to give leave to a party to be represented by a lawyer, then the discretion falls to be exercised. There are no presumptions as to how the discretion is exercised. However, no executive or judicial discretion vested by an Australian statute is unfettered. The discretion is limited and circumscribed by the 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.

(a) identify the complexity; and

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

[36] Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness. However, the assessment to be conducted under each of the two subsections is quite different.

[37] Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation. Legal representation "may" be allowed where it would be unfair to deny it "because the party or person is unable to represent the party's or person's interests in the proceeding". Therefore, the first question is whether the party or person is "unable to represent [their] interests in the proceedings". If the answer to that question is in the affirmative, then the use of the word "because" requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation.

[38] Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings. Legal representation "may" be allowed where it would be unfair not to allow legal representation to the party. However, as with s 530(4)(a), the assessment is limited. The assessment of whether it would be "unfair" is made "having regard to fairness between 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".

• [16] Furthermore, his Honour Vice President O'Connor, in State of Queensland (Department of Premier and Cabinet) v Dawson,[2] had regard to the efficiency of litigation with respect to legal representation in light of various authorities, stating:

[22] The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v where Deputy President Sams wrote:

[18] Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner's professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith:

[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd said at para [48]:

A lawyer's duty to the Commission is paramount and supersedes a lawyer's duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission.

[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission's powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions

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

• [17] 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;[3] 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;[4] 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.[5]

Efficiency and complexity: Section 530(4)(a) IR Act

• [18] The Applicant's submissions outline the Respondent's position (as set out in its Form 101), namely that if I grant leave, the proceedings may be dealt with more efficiently (as contemplated by s 530(4) of the IR Act) on the basis that the proceedings are factually and legally complex, and that it would be unfair to require the Respondent to 'navigate the proceedings without legal representation'.[6]

• [19] With respect to efficiency and complexity, the Applicant submits that the assertion that granting leave for the Respondent to be legally represented by Counsel instructed by MinterEllison will ensure the matter is 'dealt with more efficiently, particularly having regard to the time and resources the Commission, the Court and the parties have already invested in this matter' is not supported by the facts.[7]

• [20] The Applicant submits that the Respondent has conceded that the Respondent have 'staff who have industrial and advocacy experience' and that this concession is an underrepresentation of the 'considerable experience that at least two employees of the Respondent have'.[8]

• [21] More specifically, the Applicant annexes LinkedIn extracts of Mr Tony O'Donnell, Director of Workplace Relations at the GCHHS and Mr Terry McQuillan, Senior Relations Advisor at the GCHHS as examples of the experienced staff in the employ of the Respondent.[9]

• [22] The Applicant's submissions proceed to focus on the matters directed by Mr McQuillan which are indicative of the ability of Mr McQuillan to navigate matters involving complex areas of law and fact, and which are procedurally complex.[10]

• [23] The Applicant submits that in allowing the Respondent to be legally represented, the matter may proceed efficiently and it might be convenient to the Respondent, however, the Applicant submits that these are matters not relevant to the test under sub-s 530(4)(a) of the IR Act.[11]

• [24] The Applicant says that the Commission 'cannot be satisfied that representation by lawyers, rather than by the experienced staff at GCHHS, would enable the matter to proceed 'more efficiently' in circumstances where the Respondent has staff experienced in a wide range of industrial relations matters, including advocacy at the Commission'.[12]

• [25] The Respondent submits that s 530(4)(a) does not require that the matter itself be complex, either in comparison to other matters, which are or may become more complex. The Respondent submits that this provision of the IR Act requires that regard be had to the complexity of the matter. Further, the Respondent submits that the 'special complexity of this matter is twofold'.[13]

• [26] First, the Respondent says that the application for reinstatement is complex in its own right and that there are significant disputes of law and fact. Further, the Respondent submits that in circumstances where findings of credit will need to be made, the Commission 'will be assisted by focused and precise assistance with the evidence'.[14] The Respondent submits further that the allegations leading to the dismissal were serious, involving a protracted investigation and show cause process which the Respondent submits contributes to the complexity of the application itself.

• [27] The second point the Respondent raises with respect to the efficiency and complexity of the matter is that it is procedurally complex. The Respondent reiterates the procedural history of this matter; namely, the disciplinary finding the subject of a Public Sector Appeal[15] and later appeal to the Industrial Court.[16] Further, the Respondent submits that the Commission has previously heard an application for reinstatement made by another employee who was dismissed in respect of the same incident the subject of these proceedings, for which Ms Perry was dismissed.[17]

• [28] The Respondent cites the decision of Hume[18] with respect to its submission that the presence of lawyers will ensure that the focus is on the relevant issues.[19] The Respondent submits that the Applicant's submission that no efficiency would be gained in circumstances where either of the named employees from the Respondent would appear rather than lawyers 'ought not be accepted'.[20]

• [29] The Respondent proceeds to make further submissions with respect to each named employee. The Respondent submits that Mr McQuillan was previously employed by the Applicant's representatives as an Industrial Officer and Organiser at the time that the Applicant, represented by her union representatives, filed her public sector appeal.[21] On these grounds, the Respondent is not willing to have him appear.

• [30] The Respondent's submissions then turn to Mr O'Donnell and the 'three reasons the proceedings would be dealt with more efficiently if leave were granted for lawyers to appear in his stead'.[22]

• [31] First, the Respondent submits that Mr O'Donnell did not appear at the earlier related hearings. To this end, the Respondent submits that he is not as closely familiar with the matter as the lawyers engaged in this matter.[23]

• [32] Second, the Respondent submits that Mr O'Donnell lacks the specialist skills of a solicitor or Counsel and, further, that he 'ordinarily engages legal practitioners to prepare for and appear at any hearing'.[24] Within Mr O'Donnell's affidavit, he outlines the responsibilities of his role as Director of Workplace Relations in which he says, '... we typically manage around two reinstatement applications per year, which we ordinarily engage external legal practitioners to assist with.'[25] Mr O'Donnell also submits that while he is experienced in managing and advocating, he has 'very limited experience appearing at hearings of complex individual employment matters...'[26]

• [33] Mr O'Donnell states further that to his knowledge, his most recent appearance at a hearing of a reinstatement application was 'approximately 20 years ago' and that while appearing at conciliation conferences of reinstatement applications is within the ambit of his role, it is not the usual practice of GCHHS to not engage legal representation in circumstances where a reinstatement application proceeds beyond a conciliation conference.[27]

• [34] Finally with respect to Mr O'Donnell, the Respondent submits that because of the demands of his role, he does not have capacity to prepare for and appear at a hearing of an application for reinstatement to the extent that this would be as helpful to the Commission as if dedicated solicitors and Counsel were to do so.[28]

• [35] The Applicant filed submissions in reply in the Industrial Registry on 23 May 2025 in which the Applicant repeats and relies upon its earlier submissions, however, provides further detail with respect to submissions on efficiency and complexity and fairness.

• [36] The Applicant submits that the Commission cannot be satisfied that legal representation will allow the matter to be dealt with more efficiently in circumstances where the Respondent 'make (sic) repeated bare assertions about why they believe the matter to be complex. It is the Applicant's submission that 'the earlier proceedings have a limited relevance to the current matter procedurally or factually...' in circumstances where the relevant tests associated with each discrete proceedings are different.[29]

• [37] With respect to the Respondent's submissions that Mr O'Donnell cannot fairly represent the Respondent, the Applicant repeats and relies upon its earlier submissions, making further submissions that the Respondent's argument should be rejected on the basis that:

• Mr O'Donnell not having previous appearances in earlier proceedings is irrelevant where the relevant legal tests are dissimilar;

• There is no relevance to the Respondent's submission that Mr O'Donnell lacks the 'specialist skills of a solicitor or Counsel' in circumstances where he is an exceptionally experienced industrial relations practitioner; and

• A lack of capacity on the part of Mr O'Donnell to prepare and appear at the hearing is irrelevant as that it may be an inconvenience to Mr O'Donnell does not form part of the s 530(4)(a) test

• [38] The Applicant rejects the submissions of the Respondent regarding the appropriateness of Mr McQuillan appearing for the Respondent in circumstances where he was previously employed by the Applicant's union. Essentially the Applicant argues that there is no evidence of Mr McQuillan's involvement in the matter while he worked for the AWU and the suggestion that there may be a conflict of interest is not supported by case law.

• [39] In any case, the Applicant says that arguments confined to the ability or appropriateness of Mr O'Donnel and Mr McQuillan appearing in the matter do not address the matter of whether any other staff of the Respondent have industrial and advocacy experience and could take carriage of the proceedings. The Applicant says that its identification of Mr O'Donnell and Mr McQuillan was 'clearly a non-exhaustive list of potential representatives'.[30]

• [40] I have considered the submissions of the parties regarding the question of whether granting legal representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.

• [41] I note that this consideration does not relate to forming a general view about the complexity of reinstatement applications. The task is to consider the 'matter', being 'the controversy the subject of the principal proceedings'.[31]

• [42] I have noted the submissions regarding the two named individuals the Applicant identifies as able to conduct the proceedings on behalf of the Respondent. However, s 530(4)(a) asks not whether the Respondent could be represented by internal employees or even whether the internal employees could undertake the task, but rather, whether the proceedings would be dealt with 'more efficiently' if the Respondent was represented by lawyers.

• [43] Matters relating to Ms Perry's employment have been extensively canvassed in this Commission. Firstly, the Commission dealt with a public sector appeal by Ms Perry against the disciplinary finding preceding her dismissal. Later, the Industrial Court of Queensland heard an appeal against that decision. Following her dismissal, the Industrial Commission conducted a conciliation conference pursuant to s 318 of the IR Act to attempt to resolve the Application for Reinstatement.

• [44] I agree with the Applicant's observation that the question before the Commission in considering the application for reinstatement is different to the questions the Commission considered in the public sector appeal and the subsequent appeal to the ICQ. However, in my view, what has the potential to add complexity to the matter are any ongoing factual or legal disputes between the parties regarding Ms Perry's conduct and/or the disciplinary process which led to her termination. The proceedings will involve a consideration of those matters in determining whether the dismissal was unfair.

• [45] The Employer response to the application for reinstatement consists of a 6 page response accompanied by 252 pages of appendices. The material before the Commission at the hearing will be extensive and I imagine much of it has been the subject of debate and dispute between the Applicant and the Respondent. The proceedings will be dealt with more efficiently if the parties are able to narrow the issues and/or readily identify which matters are agreed and which remain in dispute. The Respondent has also raised the prospect that the Commission may need to consider matters of credit. As has been observed by O'Connor VP in Dawson, 'the prospects of being...focused on the relevant issues to be determined, is more likely where competent legal representation is involved...'.[32]

• [46] The Applicant's union has pressed for the matter to be listed for hearing as soon as is practicable. The matter has been listed for hearing and this interlocutory matter regarding legal representation is being heard alongside the ongoing hearing directions. One concern I hold is that a refusal to grant leave for the Respondent's lawyers to appear in this matter may necessitate delay as the Respondent's advocates familiarise themselves with the factual matrix, including reasonably complex questions as to the applicable directions, Directives, policies and legislative matters within a context where there is a large amount of documentation which will be before the Commission. The Respondent's legal representatives, by virtue of their ongoing involvement in Ms Perry's case, have intimate knowledge of those matters and will be well placed to enable the proceedings to be conducted more efficiently.

• [47] From paragraphs [40]-[46] above, I have identified the complexity of the matter and have had regard to how, given that complexity, having the Respondent represented by lawyers would enable the proceedings to be deal[33]with more efficiently.33 As I have found that one of the pre-conditions set out in s 530(4) for the exercise of my discretion to grant leave under s 530(1) has been satisfied, I order that leave is granted for the Respondent to be legally represented.
• [48] The parties' submissions also addressed ss 530(4)(b) and (c). In circumstances where I have granted leave for the Respondent to be legally represented following consideration of s 530(4)(a) of the IR Act, I am not required to consider the other elements set out in s 530(4).

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

[1] [2024] ICQ 16 ('Sillay').

[2] [2021] QIRC 118 ('Dawson').

[3] s 530(4)(a) IR Act.

[4] s 530(4)(b) IR Act.

[5] s 530(4)(c) IR Act.

[6] Applicant's submissions filed in the Industrial Registry on 14 May 2025 [1]-[3].

[7] Applicant's submissions (n 6) [7]-[8] citing the affidavit of Ms Sarah Smith, [14(a)].

[13] Respondent's submissions filed in the Industrial Registry on 21 May [5].

[15] Perry v State of Queensland (Queensland Health) [2023] QIRC 348.

[16] Perry v State of Queensland (Queensland Health) (No. 3) [2024] ICQ 012.

[17] Respondent's submissions (n 13) [7] citing Tania Walker v State of Queensland (Queensland Health) TD/2022/155 (decision reserved).

[18] State of Queensland (Queensland Health) v Hume [2022] ICQ 1 ('Hume').

[19] Respondent's submissions (n 13) [10] citing Hume [55].

[24] Ibid [16] citing the affidavit of Mr Tony O'Donnell filed in the Industrial Registry on 21 May 2025 [6].

[25] Affidavit of Mr Tony O'Donnell filed in the Industrial Registry on 21 May 2025 [4(c)].

[28] Respondent's submissions (n 13) [17] citing the Affidavit of Mr Tony O'Donnell filed in the Industrial Registry on 21 May 2025 [4].

[29] Applicant's submissions in reply filed in the Industrial Registry on 23 May 2025 [5].