Steadfast Constructions (QLD) Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2025] QIRC 74

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

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

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

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

• [1] Steadfast Constructions (QLD) Pty Ltd ('Steadfast Constructions') has applied for a review of the decision of the Regulator under the Work Health and Safety Act 2011 ('the Regulator') ('WHS Act') to confirm a prohibition notice issued against them. The Regulator has applied within proceedings for leave to be legally represented.[1] Steadfast Constructions opposes the application. [2]

• [2] Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') provides that legal representation may be available to parties in proceedings before the Commission (other than a full bench)[3] where all parties consent,[4] or where the Commission gives leave.[5]
• [3] Section 530(4) of the Act provides that: (emphasis added)

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

(a) it would enable the proceeding 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.

_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 organisation or another person with experience in industrial relations advocacy
• A person is from a non-English speaking background and has difficulty reading or writing

(5) For this section, a party or person is taken not be represented by a lawyer if the lawyer is -

(a) an employee or officer of the party or person; or

(b) an employee or officer of an entity representing the party or person, if the entity is -

(iii) another entity that only has members who are employers.

(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.

• [4] In the circumstances of this application the question for my determination is whether to grant leave for the Regulator to be legally represented in these proceedings pursuant to s 530(1)(e)(ii) of the Act.
• [5] The proper construction of s 530 has most recently been determined on appeal by Davis J, President, in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay') as follows (citations omitted):[6]

[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 QIRC may involve legal representation only by leave. The bases upon which leave may 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 purposes 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 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 of the principal proceedings. The "proceedings" are the principal proceedings ...

(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 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 ... may appear for that party without leave. Therefore, when considering 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."

• [6] In deciding whether to grant leave I must in the first instance determine if any of the jurisdictional facts exist that would enliven my discretion to do so. In coming to my decision, I have considered the relevant submissions made by the parties in relation to each requirement, noting that at least one of the jurisdictional facts must be established.
• [7] Davis J, President, considered the nature of jurisdictional facts in Sillay, stating as follows (citations omitted):[7]

[40] To determine the nature of the review on appeal, it is necessary to determine the nature of the jurisdictional fact. That depends on the construction of the statute. A jurisdictional fact need not be an objectively defined and identifiable fact. It may be some other matter which is identified by the statute as the catalyst to the exercise of power.

Efficiency and Complexity - a matter of judgement

• [8] Davis J, President, relevantly outlined in Sillay the considerations imported by s 530(1)(a), and highlighted the discretionary nature of the required judgement (citations omitted):[8]

[48] Section 530(1)(a), as already explained, requires (relevantly, here) the QIRC to consider "the complexity of the matter", the potential involvement of lawyers, and then weigh up any efficiencies to be gained against the complexity. That consideration, in my view, brings to bear the making of a judgment about which different minds may differ and is therefore a discretionary judgement as explained in Norbis v Norbis.

• [9] As previously outlined by Merrell DP in State of Queensland (Queensland Health) v Hume,[9] considering the complexity does not mean the matter itself must be complex or comparatively more complex than other matters when determining if legal representation would enable efficiency to be gained.

• [10] The Regulator contends that the substantive application is likely to require consideration of complex issues of fact or law, submitting that legal representation would significantly assist them in ensuring their submissions are directed at relevant legislation, codes of practice and factual material. These benefits, they argue, would enable the proceedings to be more efficient.
• [11] They cite and rely on the views of O'Connor VP in State of Queensland (Department of the Premier and Cabinet) v Dawson ('Dawson') where he accepts the conduct of that matter would 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...are presented to the Commission."[10]
• [12] Steadfast Constructions distinguish the present case from Dawson, arguing that Dawson involved a highly complex and politically sensitive issue, rather than a single prohibition notice. They argue that the substantive matter is not sufficiently complex to warrant legal representation, contending that the matter is "fundamentally straightforward" and does not "require legal interpretation beyond what the Commission routinely deals with."[11]
• [13] These submissions suggest there is an objective test that any matter must meet to be considered complex enough to be aided by legal representation. This approach has been rejected by Davis J, President, in Sillay. While I agree that prima facie the factual and legal issues in this proceeding are not highly complex, particularly when compared to the matters in Dawson, it does not follow that there is no complexity warranting further consideration of potential legal representation. Whether efficiency can be gained having regard to identified complexity within this matter is a question for my judgement.
• [14] I do not accept the apparent conflation of Steadfast Constructions' views of the merits of their own case with lack of complexity and the requirement for representation. Their view of their own prospects does not equate to the issues in dispute being straightforward or routine, not requiring the expertise of external lawyers. Further, I reject the bare assertion that the request for legal representation is tantamount to an admission by the Regulator that the substantive decision subject to review lacks merit. This assertion is at best misconceived.
• [15] I consider there is legal and factual complexity in the determination of this matter. The power to issue a prohibition notice under s 195 of the WHS Act is enlivened when an Inspector 'reasonably believes_'_ that an activity is occurring,[12] or may occur,[13] that involves a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard. Reasonable belief is not defined in the WHS Act, however, 'requires the existence of facts which are sufficient to induce the belief in a reasonable person.'[14] The evidence to be provided at hearing by the Inspector who issued the notice is crucial to the determination of the proceeding.
• [16] Based on the material filed to date, this is the central controversy between the parties. Steadfast Constructions argues there can be no 'reasonable belief' in this case where the hand operated hoist to lift beams subject to the notice was not in operation. It is further contended that a Director of the Company emailed the Inspector to confirm the equipment would only be used safely. The evidence to be provided by the Director of Steadfast Constructions at hearing to establish safe use and no imminent or immediate exposure is also crucial. The evidentiary issues in this matter are made more complex by the initial failure of the Applicant to identify any witnesses and the ongoing failure to provide to the Respondent an outline of evidence to be given by the Director.
• [17] Due to these complexities, I consider the competent adducing and examination of oral evidence at hearing to be critical to the efficient and effective conduct of the substantive matter. While one party may of course choose not to seek legal representation, I am satisfied the Commission, and the practical conduct of the proceeding, would benefit from at least one side having competent legal representation.
• [18] It is well recognised that Counsel bears a duty to the Court to bring 'independent judgement in the conduct and management of the case'.[15] Having Counsel for the Respondent conducting cross-examination of the Applicant's witness and conducting evidence-in-chief for the Respondent's witness will enable evidence to be brought forward directly relevant to the questions of fact and law to be decided in this case.
• [19] In the circumstances of this case outlined above, I conclude greater efficiency would be derived from Counsel assisting to ensure the proceedings remain focussed on issues of fact and law and that both the evidence and submissions will be directed towards the issues the Commission must decide.
• [20] Having established the jurisdictional fact set out in s 530(4)(a) of the Act, my discretion to determine whether to grant leave is enlivened. For the reasons set out above in establishing this jurisdictional requirement I find it also weighs towards exercising my discretion in favour of granting leave.

• [21] While there is no need for me to establish either of the fairness requirements as jurisdictional facts, I find the question of fairness is relevant to the exercise of my discretion and my view that the efficiency consideration weighs in favour of leave being granted. I note the Regulator has made no submissions to suggest they could not represent their interests if leave was not granted so I will not consider that requirement any further.
• [22] In relation to fairness Davis J, President, in Sillay says (citations omitted and emphasis added):[16]

[52] The jurisdictional fact prescribed by s 530(4)(c) concerns questions of fairness and the balancing of those questions as between the parties. Whether something is "fair" or "unfair", just like a consideration of what is "just and equitable" requires the making of a judgement about which different minds may differ and is, in my view, clearly an exercise of discretion.

[81] Section 530 contains a complicated web of provisions, at least one purpose of which is to avoid unfairness which may be inflicted upon a party by reason of another party being legally represented. The issue of fairness then must be broadly relevant to the exercise of discretion.

• [23] The Regulator relies on the approach of Neate IC in Wanninayake v State of Queensland (Department of Natural Resources and Mines) as cited by O'Connor VP in Dawson: [17]

The fact that one party...is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when...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 allocated for the hearing.

• [24] Steadfast Constructions argue fairness considerations typically "apply where one party is at a disadvantage such as self-represented individuals facing a well-resourced entity."[18] They are a self-represented organisation, whereas the Respondent is an experienced regulatory body who ought to have the internal resources to argue the case without the need for external legal assistance.[19] They argue the involvement of external representation is an escalation of proceedings and creates an imbalance. If leave is granted, they "formally request equal opportunity to engage legal representation at the Respondent's expense to ensure procedural fairness."[20]
• [25] While I consider it is objectively correct that the Regulator has expertise and access to internal legal resources and Steadfast Constructions seemingly does not, it does not follow that fairness demands the Regulator should be denied the opportunity to be represented at hearing by private counsel bringing different expertise to the conduct of the matter. The Regulator has not argued they are incapable of representing their own interests, rather, their interests and the underlying legal and factual issues in contention could be ventilated more efficiently and effectively with representation of Counsel. As already found, I concur with that view.
• [26] It is also correct that the Regulator is bound by the Model Litigant Principles that require, amongst other things, that 'the principles of fairness are adhered to in the conduct of all litigation'.[21] These principles apply even when represented by Counsel. This fact is relevant to my consideration of the discretion to grant leave to the Respondent to be legally represented.
• [27] I do not accept that granting leave for the Regulator to be represented by Counsel impacts fairness in these proceedings to the extent that would weigh in favour of not granting leave.

• [28] Having established the jurisdictional fact set out in s 530(4)(a) of the Act, my discretion to determine whether to grant leave is enlivened. In deciding to exercise my discretion in favour of granting leave I have weighed efficiency and fairness considerations.
• [29] The Regulator seeks an order that leave is given for both parties to be legally represented pursuant to s 530(1)(e)(ii) of the Act. Steadfast Constructions has formally requested that should I grant leave, they be given an opportunity to engage legal representation (albeit paid for by the Regulator). I will grant leave for both parties to be legally represented. Each party will bear their own costs.
• [30] I order accordingly.

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

[1] Industrial Relations Act 2016 (Qld) s 530(1)(e)(ii).

[2] On 17 December 2024, the Regulator corresponded with Steadfast Constructions by email to request consent to legal representation. Steadfast Constructions advised by reply email on 19 December 2024 that consent was not given.

[3] Industrial Relations Act 2016 (Qld) s 530(1)(e).

[4] Ibid s 530(1)(e)(i).

[5] Ibid s 530(1)(e)(ii).

[6] [2024] ICQ 16, 14-15.

[7] [2024] ICQ 16, 15-16.

[8] [2024] ICQ 16, 17.

[9] State of Queensland (Queensland Health) v Hume [2022] ICQ 1, [40].

[10] State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118, [16].

[11] Submissions of Steadfast Constructions, filed 11 February 2025, 1.

[12] Work Health and Safety Act 2011 (Qld) s 195(1)(a).

[13] Work Health and Safety Act 2011 (Qld) s 195(1)(b).

[14] Seymour Whyte Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2024] QIRC 85, [19] (O'Connor VP), citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[15] State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118, [22] (O'Connor VP), citing Sams DP in Application by R.A.V [2014] FWC 2860.

[16] [2024] ICQ 16, 18, 23.

[17] State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118, [25] (O'Connor VP) citing Neate IC in Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079.

[18] Submissions of Steadfast Constructions, filed 11 February 2025, 2.

[19] Submissions of the Regulator, filed 31 January 2025, note the originating application lists Steadfast Constructions as represented by Mr Kururangi. In submissions filed on 11 February 2025, Steadfast Constructions clarifies that Mr Kururangi is an employee and not a legal representative or acting in a legal capacity. I accept the clarification provided by Steadfast Constructions.

[20] Submissions of Steadfast Constructions, filed 11 February 2025, 4.

[21] Queensland Cabinet, Model Litigant Principles, 4 October 2010, 1.