White 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] IQC 001

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

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

[2] On 18 December 2025, the State of Queensland (Queensland Health) ('the Respondent') filed an application for leave to be legally represented pursuant to s 530(1)(e)(ii) of the IR Act along with an Affidavit of Ms Sarah Smith of MinterEllison.

[3] The Applicant sent correspondence to the Registry advising that they did not consent to the Respondent being legally represented in the proceedings.

[4] On 23 December 2025, the matter was listed for a conciliation conference for 10 February 2026.

[5] The Applicant advised that they did not consent to the Respondent being legally represented at the conference.

[6] The listing for the conciliation conference was vacated pending the determination of the Respondent's application for leave to be legally represented.

[7] On 14 January 2026 directions were issued that parties file and serve submissions in relation to the Respondent's application for leave.

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

[9] 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 -

[10] Section 530(4)(a) provides that leave may be given if it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.

[11] 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.

[12] The Respondent relies upon submissions filed on 18 December 2025 with the Affidavit of Ms Smith. The submissions in relation to s 530(4)(a) are summarised as follows:

• The matter seeks relief under Chapter 8 of the IR Act; accordingly the Commission may grant permission with leave in accordance with s 530(7)(b) of the IR Act.

• In accordance with s 530(4)(a), legal representation for the Respondent would enable these proceedings, including any hearing of the matter, to be dealt with more efficiently.

• This proceeding raises special factual and legal complexities arising because the decision to dismiss the Applicant followed a lengthy performance improvement process about which the Commission will be required to make findings of credit. This matter will also require the Commission to consider medical evidence in the context of that performance improvement process.

• In these circumstances, the Commission would be assisted by having the examination-in-chief and cross-examination of witnesses undertaken by Counsel.

• The Commission has acknowledged that efficiency can be achieved in the conduct of proceedings by a lawyer's ability to place before it the relevant and precise matters of evidence and law.

• In accordance with s 530(4)(b) it would be unfair for the Respondent to be required to navigate the proceedings without legal representation given the complexities canvassed, noting that the Respondent employs officers who have industrial and advocacy experience.

• In accordance with s 530(4)(c), the involvement of legal representation will work to balance fairness between the parties because it will aid with proper case and courtroom management, particularly in circumstances where the Applicant is represented by a Union.

• The criteria in s 530(4)(a) to (c) are statutory preconditions which must be met before the Commission can consider whether it is appropriate for the discretion to be exercised.

• However, for the Commission to decline to exercise the discretion to grant leave in circumstances where one of the preconditions is met, there would need to be compelling countervailing considerations. In this case, there are no such compelling matters weighing against the grant of leave.

[13] The Respondent's further submissions are summarised as follows:

• In respect of s 530(4)(a), these proceedings raise particular factual and legal complexities including:

• The decision to dismiss the Applicant from her employment followed a lengthy performance improvement process, about which the Commission will be required to make findings of credit regarding both the Applicant's performance and her perception of her performance, during and following the performance improvement process. The Respondent anticipates the Commission will be assisted in making findings of credit by having the evidence-in-chef and cross-examination of witnesses undertaken by counsel; and

• The Respondent understands from the matter's background that the Commission will also be required to consider medical evidence in the context of that performance improvement process. Legal representation will assist the Commission by framing this evidence within the correct legal context. Without legal representation, the Respondent would be disadvantaged in presenting and testing medical evidence effectively.
• It will be less efficient for the Respondent to represent itself for the following reasons:

• Mr Anthony O'Donnell, Director of Workplace Relations, Gold Coast Hospital and Health Service, does not have the specialist skills of a solicitor or counsel and ordinarily engages external legal practitioners to prepare for and appear at hearings before the Commission.

• Due to the demands of his role, Mr O'Donnell does not have the capacity to prepare for and appear at any hearing of an application for reinstatement in a way that would be as helpful to the Commission as if dedicated solicitors and counsel were engaged to do so. Such participation would constitute a substantial undertaking in addition to his ordinary responsibilities.

• This matter turns on a lengthy performance improvement process and discipline process. If the matter proceeds to hearing, resolving contested facts regarding the fairness of the performance improvement process and subsequent discipline process, and testing credibility of the witnesses that will likely be required, will not be straightforward. Mr O'Donnell does not have this experience and nor does anyone in his team.

• The Commission will be assisted by the expertise and skill of experienced legal representatives who regularly appear in this jurisdiction and are familiar with the Commission's procedures and processes.

• Regarding the conciliation conference, the presence of experienced legal representatives at any conciliation conference will enable the conference to be dealt with more efficiently. The Respondent cites the Commission's decision in Ivins v KMA Consulting Engineers Pty Ltd & Ors which stated that areas of significant factual dispute "... add to the factual complexity of the matter, and further gives rise to a risk that the conduct of the conciliation may go awry or become protracted if unrepresented parties on both sides focus in on those factual disputes".[2]

• The Commission will be assisted by the presence of experienced legal representatives able to explore the issues of factual dispute relevant to the proceedings, and the possible resolution of the proceedings, in an efficient manner at any conciliation conference.

• The Respondent has limited experience in conducting hearings, managing the presentation and admissibility of evidence and examining and cross-examining witnesses. If the matter does not resolve at conciliation conference, the Commission will be assisted by the presence of legal representatives at the substantive hearing of the application.

• The factual and legal complexities inherent to these proceedings will be more efficiently resolved by the presence of a lawyer experienced in placing before the Commission relevant and precise matters of fact and law and engaging with the Commission on these matters during the hearing of the proceedings.

[14] The Applicant made the following submissions in reply, in summary:

• Any consideration as to whether to exercise the discretion starts from the premise that the QIRC is intended to be a lay tribunal, legal representation should be limited, and the threshold for granting legal representation is intended by the legislature to be significant, with complexity a key consideration of when such legal representation should be granted.

• The validity of this premise can be demonstrated when the Explanatory Notes for the Industrial Relations Bill 2016 are considered. Section 530 of the Bill was amended between the first and third readings to provide more clarity by explicitly mentioning the different conditions under which leave may be granted for legal representation.

• The examples added to the Bill are instructive, in particular the example where it 'may be unfair not to allow a party or person to be represented by a lawyer' included where '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'. That is hardly the situation in this case.

• The clear intent of the amendments was to protect the character of the QIRC as a 'layperson tribunal' and to provide clear guidance as to the granting of leave beyond that provided in the Fair Work Act 2009. On that basis, though decisions of the Federal Commission are instructive, they are not determinative and the granting of leave in the State Commission should be more limited than occurs in the Federal Commission.

• This factor weighs against the exercise of the discretion in this matter.

• The construction of s 530 starts with the presumption against legal representation set out in s 530(1) that a party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, must not be represented in the proceedings by a lawyer except in limited circumstances. Those limited circumstances include a limited discretion to grant leave by virtue of the combined effect of s 530(1)(e)(ii) and s 530(4).

[15] The Applicant made the following submission in relation to s 530(4)(a):

• The Respondent has failed to demonstrate any actual complexity in the matter which would warrant leave for legal representation being granted on the basis of efficiency.

• As with the determination in Rozendaal v state of Queensland (Queensland Corrective) Services) ('Rozendaal') the factual matters in dispute are not sufficiently complex to justify granting legal representation.[3]

• The Applicant does not contest that she failed the performance improvement process, which was the sole reason for her dismissal as stated by the employer. Instead, the Applicant contends that there were procedural deficiencies in the performance management and disciplinary process, specifically:

• That the Respondent dismissed the Applicant on the basis of a Performance Improvement Plan ('PIP') she had failed approximately a year prior; and

• That in making their finding as to liability, and in proposing termination as a disciplinary action in the letter dated 07/08/2025 the Respondent relied upon, or gave weight to complaints made around the Applicants conduct which the Applicant was not awarded an opportunity to respond to.

• These issues can be distinguished from those in Hume and Sillay in which the Applicant sought to dispute findings which were the subject of lengthy investigation and disciplinary processes.

• The Applicant wholly refutes the Respondents submission that several legal complexities are present in this matter as being in large part hypothetical and entirely unfounded.

• There is no evidence that there will be complex legal matters, nor is there likely to be a need for forensic examination of witnesses or medical evidence. Indeed, there will be no examination of witnesses in the conciliation conference where the Respondent seeks representation. In the absence of a positive finding of complexity, reliance on efficiency along of grant representation would be misplaced.

• Efficiency of the conduct alone does not justify representation, there must be something in the complexity of the matter that would make it more efficient to allow legal representation.

[16] The Respondent's submissions in reply in relation to s 530(4)(a) are summarised as follows:

• The Respondent does not dispute that the legislature intended the Commission to retain its character as a layperson's tribunal while recognising the need for legal representation in certain circumstances; this intention is reflected in s 530(4) of the IR Act.

• The legislature expressly recognised the need for legal representation to be an option where it would enable proceedings to be dealt with more efficiently, having regard to the complexity of the matter. This proceeding fits squarely in this category.

• The Respondent maintains that the Commission will be required to make findings of credit regarding the Applicant's performance and her perception of her performance, and that medical evidence may need to be considered in the context of the performance improvement process having regard to the matters relied on by the Applicant in her application for reinstatement.

• While the Applicant may not consider 'forensic' examination necessary, the Respondent maintains that such examination will be required to properly ventilate the issues in dispute, and that Counsel is best placed to undertake this examination in the manner most helpful to the Commission.

• The Applicant's assertion that the complexities identified by the Respondent are hypothetical and unfounded ought to be rejected. The complexities identified by the Respondent arise directly from the matters in dispute and are squarely referable to the controversy before the Commission.

[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 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.

[18] In Sillay v State of Queensland (Queensland Corrective Services) ('Sillay'),[4] President Davis referred to the following observations made by Vice-President O'Connor in State of Queensland (Department of Premier and Cabinet) v Dawson:[5]

(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.

[19] 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.

[20] In Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake'),[6] Commissioner Neate stated the following:

... 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.

[21] The application for reinstatement outlined the Applicant's contention that her dismissal was unfair for a number of reasons, including circumstances involved in her PIP, medical assessments and the fact her dismissal occurred over twelve months after her PIP had concluded.

[22] It appears that there are a significant number of factual disputes between the parties, including whether the Applicant had been advised of performance issues, the reasons for various alleged performance deficiencies, the role of the Applicant's medical condition, and allegations of frequent changes in duties.

[23] On the basis that a number of disputed factual claims will need to be determined to make findings of fact and credit, potentially including that related to medical evidence, I am satisfied that this matter involves some level of complexity. This is particular so where the reason for dismissal arises following a range of conduct over time. A factual basis such as this lends itself to an expansive approach to proceedings. 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.

[24] Although the skills of cross-examination will not be required at conciliation, I am persuaded that the presence of legal representatives will assist in focussing the conciliation on the efficient resolution of the matter.

[25] The Applicant refers to Rozendaaal,[7] in which leave was refused following a determination that the matter did not satisfy s 530(4)(a). I consider that the facts of this matter differ substantially, with the Applicant in Rozendaal accepting the substantiation of allegations and pressing the application on the basis only that the termination was harsh. Although I have not had the benefit of the parties' statements of facts and contentions, at this stage it appears that the factual matrix in this matter is significantly more complex.

[26] I am satisfied that the Commission will be assisted by the presence of legal representatives in the proceedings to ensure the matter proceeds efficiently as a consequence of the complexity mentioned above. Accordingly, I am satisfied that the Commission may grant leave pursuant to s 530(4)(a).

[27] In circumstances where the jurisdictional fact in s 530(4)(a) has been established, it is unnecessary to consider the other elements of s 530(4). Consideration now turns to whether discretion to grant leave ought to be exercised.

[28] The Applicant submits that legal representation should be 'the exception rather than the rule', however, I note consideration of a similar submission by Deputy President Hartigan in Sillay v State of Queensland (Queensland Corrective Services):[8]

[14] The statement of Mr Sillay that legal representation should be "the exception rather than the rule" appears to have been made with little regard to s 530 of the IR Act and the matters the Commission must have regard to when considering if leave should be granted for a litigant to be legally represented.

[29] Section 530 provides that leave may be granted in three specific circumstances. There is no statutory requirement that a grant of leave to be legally represented only occur in exceptional circumstances or ordered sparingly.

[30] The professional duties of legal representatives were considered in Sillay v State of Queensland (Queensland Corrective Services), with the following observations made by Deputy President Hartigan:[9]

[16] 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.

[31] The Applicant submits that the fact that the Respondent is bound by the Model Litigant Principles is a non-sequitur as they apply equally whether lay advocates, in-house or external lawyers are instructed. I accept the Respondent's submission that these principles demonstrate that legal presentation will promote, rather than hinder, fairness and efficiency, and accordingly inform the exercise of discretion. The ability of legal representatives to promote efficiency as well as the professional obligation to do so weights in favour of the exercise of discretion.

[32] The Model Litigant Principles promote fairness by facilitating proper case and courtroom management and the efficient conduct of the proceedings. In addition, as considered by Vice President O'Connor in Dawson, proper case and courtroom management assists self-represented parties in balancing fairness throughout the proceeding.[10]

[33] The 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).

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

[2] [2025] QIRC 141, [70].

[3] [2024] QIRC 135 ('Rozendaal'), [36].

[4] [2024] ICQ 16 ('Sillay'), [20].

[5] [2021] QIRC 118 ('Dawson').

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