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

Public Interest Disclosure Act 2010 (Qld), s 48, s 55, s 314

Public Service Act 2008 (Qld),

Fair Work Act 2009 (Cth), s 596

Legal Profession (Barristers Rules) Notice 2018 (Qld)

Application by R.A.v [2014] FWC 2860 (1 May 2014)

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

National Tertiary Education Industry Union v Monash University [2016] FWC 5539

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

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

Warrell v Walton [2013] FCA 291; 233 IRJ 335

Mr A. Duffy QC with Mr E. Shorten of Counsel, instructed by Crown Law, for the Applicant.

• [1] The State of Queensland seeks leave of the Commission to be legally represented in these proceedings by Counsel instructed by Crown Law.

• [3] As the Applicant in the substantive proceedings, Mr Dawson seeks an injunction pursuant to s 48 of the Public Interest Disclosure Act 2010 (Qld) ('PID Act'). The Applicant further seeks various forms of relief, including reinstatement, pursuant to s 314 of the Industrial Relations Act 2016 (Qld) ('IR Act').

• [4] Chapter 11, Part 5, Division 3 of the Act concerns the conduct of proceedings by the Court, Commission, an Industrial Magistrates Court or the registrar.

• [5] Section 529 deals with representation of parties generally:

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

(b) if the party or person is an organisation - an officer or member of the organisation.

(a) means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; ...

• [6] Section 530 of the IR Act relevantly states:

(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-

(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.

• [7] It is accepted that a lawyer working at Crown Law is by operation of the Public Service Act (Qld) 2008 an employee of the State of Queensland. Therefore, for the purposes of s 530(5) of the IR Act they have an absolute right to appear in proceedings in which the State of Queensland is a party.

• [8] However, what is sought in the present circumstances is for leave to be granted to allow Counsel to appear.

• [9] Section 530 of the IR Act grants the Commission a discretionary power to grant permission for a person to be legally represented by a lawyer only if:

...it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter...[1]

• [10] In National Tertiary Education Industry Union v Monash University[2] the Fair Work Commission was called on to considered s 596(2)(a) of the Fair Work Act 2009 (Cth) ('FWC ACT'). Section 596(2)(a) of the FW Act is substantially similar to s 530 of the IR Act. Relevantly, the Fair Work Commission wrote:

The NTEU is correct when it says that just because a matter involves contested facts or there is contest of interpretation this does not mean that the matter is inherently complex. However, the decision as to whether the requirements of s.596(2)(a)-(c) have been met such that permission might be considered in any particular case requires a consideration of the circumstances of that case. Broad statements as to complexity are of little use in making such an assessment. Assumptions should be avoided.

The question pursuant to s.596(2)(a) is whether the matter could be dealt with more efficiently taking into account its complexity. The matter does not have to be complex per se or reach some threshold level of complexity before permission might be considered. The test is one of efficiency taking into account the complexity that is in the matter.

In any event, I am satisfied that there is a level of complexity in the matter before me. In these circumstances I am satisfied that the matter could be dealt with more efficiently if permission was granted.[3]

• [11] Commissioner Bissett went on to observe:

The decision as to whether permission should be granted is not a contest as to who has the most lawyers or has done the most or best advocacy. It is a discretionary decision of the Commission as to whether to grant permission. This is a finely balanced decision but in this case I have decided to grant permission. I have done so because of the subject of the dispute and the contest involved. Monash University should not assume that this will be the norm. Each application for permission will be decided on its merits and in context. It would be encouraged however to improve its ability to undertake advocacy before the Commission from within its own staff, keeping in mind the presumption in the Act that parties represent themselves in matters before the Commission.[4]

• [12] Section 596 of the FW Act was further considered by Flick J in Warrell v Walton[5] where his Honour wrote:

[A] decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".[6]

• [13] Let me now turn to the matters set out in s 530(4) of the IR Act which need to be considered in exercising the discretion.

• [14] The Crown argues that the allegations made by Mr Dawson involve complex questions of fact. In their submission, leave ought to be granted on the basis that it will enable the proceedings to be dealt with more efficiently. The basis of their argument dealing with the issue of complexity arises from:

• the serious allegations made by the Applicant against senior offices of the Respondent;
• the allegations dating back to 2017; and
• the disputed facts in the proceedings, including but not limited to whether there is any actual or impending detriment to the Applicant in his employment.

• [15] The Crown contends that to determine the disputed questions of fact, it is likely that the Commission will be required to make findings of credit in respect of various witnesses, including senior ministerial staff members of the Respondent.
• [16] I accept the argument that the Commission would be assisted by having the examination-in-chief and cross-examination of the parties' undertaken by Counsel. Moreover, the conduct of the matter will be assisted with the involvement of Counsel to ensure that the evidence presented to the Commission is done so with care and precision and that only those matters relevant to the determination of this proceeding are presented to the Commission.

• [17] Further, I see some force in the submission that the involvement of Counsel at any compulsory conference would allow the parties to effectively conciliate the matter in circumstances where all options for the resolution of the matter are explored. I also see benefit in the argument that the approach to be taken during a conciliation needs to be such that relations between the employer and employee are preserved as far as possible.

• [18] The primary thrust of the Crown's submission is that the Commission will be assisted by the involvement of Counsel in the argument and consideration of questions of law at both the interlocutory stage and during the substantive hearing. I agree.

• [19] Mr Dawson seeks an injunction pursuant to s 48 of the PID Act. Section 48(1)(a) of the PID Act gives the Applicant the capacity to apply to the Commission for an injunction about a reprisal if the reprisal has caused or may cause detriment to an employee; and involves or may involve a breach of the IR Act or an industrial instrument under that Act.

• [20] I accept that oral and written submissions will assist the Commission to determine whether or not it has the jurisdiction to issue the injunction and if it does, whether it is appropriate in the circumstances to do so.

• [21] Whilst I accept Mr Dawson's argument that the tests and principles to be applied when considering whether or not to grant an injunction are well settled,[7] the jurisprudence in this Commission concerning the circumstances in which an injunction can be issued in reliance on s 48 of the PID Act is far less so.

• [22] The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v,[8] 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 (1988) 165 CLR 543; [1988] HCA 52:

[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 [2014] FWCFB 174 said at para [48]:

A lawyer's duty to the Commission is paramount and supercedes 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 [footnotes omitted].

[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.[9]

• [23] The Commission has a responsibility to ensure that its practice and procedure are adhered to in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Equally, the Commission has an obligation to ensure its limited resources are effectively utilised. The involvement of Counsel will, in my view, assist in achieving that objective.

• [24] It is accepted that fairness is not an abstract concept. In the present circumstances, the Commission's aim in the conduct of these proceedings is to avoid practical injustice.[10]

• [25] As was observed by Neate IC in Wanninayake v State of Queensland (Department of Natural Resources and Mines)[11]:

The fact that one party, either by choice or circumstances, is not represented by a lawyers no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.

To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.[12]

• [26] The Respondent is bound by the model litigant principles which require, amongst other things, that:

(a) the power of the State be used for a public good and in the public interest; and

(b) the principles of fairness are adhered to in the conduct of all litigation.

• [27] It was submitted by the Crown that it will conduct the proceedings consistently with those principles and will not take unfair advantage of Mr Dawson.

• [28] In my view, balancing fairness between parties can be aided through proper case and courtroom management.

• [29] Equally, Counsel's paramount duty is to the court and the administration of justice. Whilst Counsel must also represent their clients honestly and to the highest standards, unaffected by personal interests, they must also assist in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter. These duties are reflected in the 2011 Barristers' Rule, as amended.[13]

• [30] From the arguments advanced above, the aim of ensuring the effective resolution of the issues between the parties in these proceedings is in my view best affected by the involvement of Counsel.

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

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

[2] National Tertiary Education Industry Union v Monash University [2016] FWC 5539.

[4] National Tertiary Education Industry Union v Monash University [2016] FWC 5539, [38].

[5] Warrell v Walton [2013] FCA 291; 233 IRJ 335.

[7] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

[8] [2014] FWC 2860 (1 May 2014).

[9] [2014] FWC 2860 (1 May 2014) [18] - [20].

[10] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, [37].

[11] [2014] QIRC 079.

[13] Legal Profession (Barristers Rules) Notice 2018 (Qld).