Zacharias v Advara Heartcare Pty Ltd [2025] QIRC 211

Human Rights Act 2019 (Qld), s 15, s 31

Industrial Relations Act 2016 (Qld), s 530

Alistair v Brisbane City Council [2024] QIRC 293

E. Allen and Ors v Fluor Construction Service Pty Ltd [2014] FWCFB 174

Montesin v Brisbane City Council [2022] QIRC 31

Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 016

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

State of Queensland (Queensland Health) v Hume [2022] ICQ 001

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

• [1] On 11 November 2024, the Queensland Industrial Relations Commission ('the Commission') received a referral of a complaint filed by Silas Zacharias ('the Complainant') in the Queensland Human Rights Commission ('QHRC').

• [2] The Complaint names Advara Heartcare Pty Ltd as the Respondent in the matter.

• [3] The parties participated in a conciliation conference on 16 January 2025 and a Directions Order was subsequently issued on 17 January 2025, directing parties to file and serve documents and engage in a disclosure process.

• [4] Following completion of the processes outlined in the Directions Order, a second conciliation conference was listed for 5 June 2025.

• [5] On 29 May 2025, the Respondent filed a 'Form 101 - Application for leave to be represented by a lawyer in certain proceedings' seeking leave to be legally represented in the proceedings pursuant to the 530(1)(c) and (4) of the Industrial Relations Act 2016 (Qld) ('the IR Act') ('the Respondent's Application').

• [6] The Respondent's legal representatives emailed the Commission on 4 June 2025 inquiring as to whether leave had been granted to represent the Respondent for the conciliation conference the following day.
• [7] The Complainant did not advise the Commission of any objection following the Respondent's email correspondence dated 4 June 2025, nor had the Complainant filed a 'Form 102 - Response to application for leave to be legally represented by a lawyer in certain proceedings'.

• [8] In circumstances where no objection had been received from the Complainant, leave was granted to the Respondent to be legally represented for the conciliation conference only, pending the expiry of the 7-day period within which a Form 102 objection could be filed.

• [9] Upon commencement of the conciliation conference, the Complainant advised that they objected to the Respondent's Application. It was apparent that the Complainant was not aware of the requirement to file an objection via a Form 102. The Complainant was advised that the 7-day period within which the Form 102 could be filed expired that day.

• [10] To ensure procedural fairness was afforded to the Complainant, the conciliation conference was adjourned in order to allow the Complainant an opportunity to file an objection to the Respondent's Application.

• [11] On the evening of the last day of the 7 day period the Complainant sent an email to the Registry containing a Form 102 and seeking an extension of time to file the required 'Form 20 - Affidavit'.

• [12] The Complainant was granted an extension of time to file a Form 102 objection until 11 June 2025. On 10 June 2025, the Complainant filed a 'Form 20 - Affidavit' following which the Form 102 was then accepted by the Registry for filing.

• [13] The Industrial Registry emailed the parties on 11 June 2025 requesting that the parties confirm by 18 June 2025 if they wished to file further written or oral submissions, and if they objected to the Respondent's Application being determined on the papers. The Respondent confirmed on 12 June 2025 that they did not wish to make further submissions and did not object to the matter being determined on the papers. The Complainant advised on 4 July 2025 that they did not object to the Respondent's Application being determined on the papers.

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

• [15] 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 -

(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 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 or has difficulty reading or writing

relevant provision, for a proceeding before the commission other than the full bench, means -

• [16] 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; 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.

• [17] In State of Queensland (Queensland Health) v Hume ('Hume'), Deputy President Merrell outlined the following consideration with respect to the construction of s 530(4)(a) of the IR Act:[1]

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).

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.

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.'

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.

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.

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.

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.

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.

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.

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.

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.

• [18] The Respondent refers to the proper construction of s 530 of the IR Act as outlined by Davis J, President, in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay'). [2]

• [19] In relation to s 530(4)(a), the Respondent submits that there is sufficient complexity to the matter warranting the grant of leave for it to be legally represented, with the complexities including but not limited to the following:

a) The lack of particularisation of the proceedings as set out in the Complainant's Statement of Facts and Contentions (SOFC) and the alleged discriminatory conduct of the Respondent;

b) The significant factual matters in dispute between the parties which are central to the proceedings, including whether the Complainant was subject to sexual harassment and victimisation;

1. The ambiguity in the nature of the discrimination alleged, being direct or indirect (which is denied);

d) The identification of either a comparator (for direct discrimination) or an alleged term (for indirect discrimination) imposed on the Complainant and being the subject of the proceedings; and

e) Whether the Respondent is vicariously liable for the conduct of the relevant employee in respect to the alleged conduct (notwithstanding this is not specifically pleaded in the Complainant's SOFC).

• [20] In relation to the issue of efficiency, the Respondent submits that having regard to the above complexities, having a party represented by a lawyer would enable the proceedings to be dealt with more efficiently.

• [21] The Respondent also submits the following:

• It is well established that the likelihood of a matter being handled with greater efficiency and a focus on relevant issues is 'more likely where competent legal representation is involved', citing State of Queensland (Department of the Premier and Cabinet) v Dawson ('Dawson').[3]

• The expertise of legal representation will assist the Commission in any conciliation conferences and, if unresolved, in determining the proceedings, particularly because a lawyer's paramount duty is to the court and to the administration of justice, superseding any duties to their client.[4]

• The presence of legal representation will assist the Commission to ensure that its practice and procedure are adhered to, facilitating the just resolution of the dispute as quickly, inexpensively, and efficiently as possible.[5]

• The Commission would also be greatly assisted by representation of the Respondent where the presence of lawyers would ensure that submissions remained focused on the relevant tissue of fact and law during any conciliation conference and ultimately which the Commission must decide.[6]

• The presence of lawyers would ensure that any unrelated issues being introduced be avoided and would assist the making of forensic decisions regarding the calling of witnesses and conducting appropriate examination and cross-examination of witnesses relevant to the proceedings.[7]

• [22] The Respondent submits that in addition, or in the alternative, the involvement of legal representation in the proceedings will balance fairness between the parties because it will aid in the proper case and courtroom management.

• [23] The Respondent refers to the decision in Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake') regarding the lack of representation for one of the parties:[8]

The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party of parties of legal representation, particularly in significant and potentially complex cases.

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.

• [24] The Respondent submits that the proceedings involve a degree of factual and legal complexity and that the outcome of the proceedings is likely to have significant impact upon the Respondent, including the potential for damages to be awarded (which is uncapped). The Respondent further submits that significant findings could be made about the Respondent, noting that it was not the Complainant's employer at the time the alleged conduct occurred.

• [25] The Respondent acknowledges that it has access to in-house resources, however, submits that it does not have dedicated in-house resources with the necessary experience and expertise in matters relating to the proceedings. The granting of leave would not impact fairness in the proceedings to the extent that would weigh in favour of not granting leave.

• [26] The Complainant filed an objection to the Respondent's application for leave to be legally represented, outlining the following grounds:

a) The matter does not meet the threshold of legal or factual complexity. This case concerns standard anti-discrimination issues involving the Respondent's conduct toward the Complainant as a former employee. It involves well-established legal principles relating to discrimination, failure to accommodate, and victimisation under the Anti-Discrimination Act 1991 (Qld). These matters are not so complex as to warrant legal representation for the Respondent, especially given that the Commission is well equipped to manage self-represented parties, and has done so in this matter to date.

b) The Respondent, a corporate employer, is not unable to represent itself. It is a commercial healthcare entity with access to internal human resources and management personnel who are capable of responding to this proceeding. Prior to appointing DWF Australia just days before the June 5, 2025 conference, the Respondent had managed the entirety of the matter without legal counsel, including the QHRC process, the filing of their response, and compliance with Commission directions. This demonstrates they are capable of self-representation and are not disadvantaged by lack of legal skill or resources.

1. Most critically, permitting the Respondent to be represented by legal counsel while the Complainant remain self-represented - and managing multiple disabilities (autism, ADHD, complex PTSD) - would significantly prejudice the fairness between the parties. Section 530(4)(c) requires that the Commission consider whether it would be unfair between the parties to allow legal representation. Allowing the Respondent a legal advocate from a major law firm, when the Complainant remains unrepresented and materially disadvantaged due to disability, would create a gross procedural imbalance. The Complainant does not have financial means or cognitive energy to retain counsel at this time, and he was not informed or consulted prior to the initial interim grant of leave to the Respondent's solicitor.

• [27] The Complainant also made submissions relating to the interim grant of leave for legal representation given to the Respondent prior to the Respondent's filing of a Form 102 objection. Those submissions are not relevant to the consideration of this application, however, I note that the conciliation conference was adjourned when the Complainant advised of their objection to legal representation and consequently no prejudice was suffered by the Complainant.

• [28] In response to the Respondent's submissions regarding s 530(4)(a) of the IR Act, the Complainant filed an Affidavit outlining the following:

a) The Complainant has documented disabilities including Autism Spectrum Disorder (ASD), Attention Deficit-Hyperactivity Disorder (ADHD), and Complex Post-Traumatic Stress Disorder (CPTSD) all diagnosed in 2021.

b) On or about 29 May 2025, the Respondent filed a Form 101 Application for leave to be legally represented by DWF Law Australia Pty Ltd.

c) The Complainant was served with this application via email but was not given proper notice of the process for objecting or the significance of the application.

d) The application was made approximately 6 months after the matter was referred to the QIRC in November 2024.

e) On 4 June 2025, the Commission granted leave for legal representation 'for the conference dated 5 June 2025' without hearing from the Complainant or considering their position as a self-represented person with disabilities. The decision was made ex parte without any consideration of procedural fairness implications for the Complainant as a disabled self-represented party.

f) The Respondent has had access to all evidence and documentation in this matter since the QHRC referral in November 2024. No new evidence or complexity has emerged that would justify the sudden need for legal representation in June 2025.

g) The timing of this application, immediately before the scheduled conciliation conference, appears strategic rather than based on genuine necessity.

h) The Respondent was represented throughout earlier proceedings by Ms Alison McManus, described as their 'General Counsel', indicating they have had legal advice throughout.

1. The late application creates significant procedural disadvantage as the Complainant must now consider whether to seek legal representation himself, causing delay and additional stress.

j) The Complainant's disabilities affect their ability to process complex legal proceedings, particularly when facing unexpected changes in the procedural landscape.

k) Executive functioning challenges associated with ADHD make it difficult to rapidly adjust to new circumstances such as opposing major commercial legal representation.

1. The autism spectrum disorder affects the Complainant's communication and requires predictable processes and adequate time to adjust to changes.

m) The complex PTSD is triggered by confrontational situations and power imbalances, which are exacerbated when facing professional legal representation without equivalent support.

n) These conditions mean that procedural fairness requires enhanced considered of the Complainant's circumstances, not dismissal of legitimate concerns.

o) The Respondent's claimed 'complexities' in their application are standard discrimination law concepts that do not require specialised legal expertise.

p) The issues of direct discrimination, indirect discrimination, sexual harassment, and victimisation are well-established areas of anti‑discrimination law.

q) The factual matrix is largely undisputed, with most individual respondents having acknowledged and settled their involvement through the QHRC process.

r) The remaining issues centre on organisational responsibility and system discrimination, which are policy matters rather than complex legal questions.

s) DWF Law Australia is a major commercial law firm with substantial resources and expertise in complex litigation. As a disabled person on limited income, the Complainant does not have equivalent resources to engage similar legal representation. This creates a fundamental imbalance in the proceedings that undermines the accessible and informal character of the Commission.

t) The Commission's mandate to provide accessible justice is compromised when major commercial law firms are permitted to represent parties against self-represented disabled individuals without proper safeguards.

u) Alternatives to full legal representation could include enhanced case management directions, structured hearing procedures, written submissions rather than oral advocacy, expert evidence limitations and enhanced support for self-represented parties. These alternatives would address any genuine complexity concerns without creating the procedural disadvantage that flows from major commercial legal representation.

1. The engagement of expensive commercial lawyers changes the settlement dynamics significantly, as the Respondent must now justify substantial legal costs. This may actually hinder rather than help resolution of the matter, contrary to the Commission's objectives.

w) Settlement discussions between a self-represented disabled person and major commercial lawyers create inherent power imbalances that undermine fair negotiation.

1. The Human Rights Act 2019 requires the Commission to act compatibly with human rights, including the right to equality before the law (s 15) and fair hearing (s 31). Allowing major commercial legal representation against a disabled self-represented person without proper safeguards potentially breaches these human rights obligations. The Commission has positive obligations to ensure that persons with disabilities can participate meaningfully in proceedings on an equal basis with others.

• [29] The Complainant seeks that the Respondent's application for legal representation be refused, alternative case management measures be implemented if complexity concerns exist, enhanced procedural protections be provided for the Complainant's participation as a self-represented disabled person, and the matter proceed to conciliation with both parties self-represented or represented by persons of equivalent standing.

• [30] As outlined above, s 530(4) of the IR Act provides that the Commission may grant leave for a party to be legally represented 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 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.

• [31] In Dawson his Honour O'Connor VP referred to the consideration of the efficient conduct of litigation by a number of authorities including the following:[9]

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 ...

• [32] Section 530(4)(a) of the IR Act provides that leave may be granted if it would enable the matter to be dealt with more efficiently by the Commission. Whilst regard must be had to the complexity of the matter, the matter does not have to be more complex than other matters.[10]

• [33] In Sillay, his Honour, Davis J, considered the statutory construction of s 530 and determined the following:[11]

[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 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.

• [34] I am satisfied that the circumstances of this matter involve significant complexity given the substantial factual matters in dispute between the parties. The Complainant has outlined allegations relating to sexual harassment, victimisation, direct discrimination, and indirect discrimination on the basis of sexuality, gender identity, and impairment. I am not persuaded by the Complainant's contention that this is a 'standard' complaint that does not reach a required level of complexity.

• [35] I accept the Respondent's submission that the Complainant's Statement of Facts and Contentions ('SOFC') lacks particularisation regarding the alleged discriminatory conduct, specifically the identification of either a comparator in the case of direct discrimination or an alleged term in the case of indirect discrimination. These issues are complex and the efficient handling of the ambiguity in the Complainant's SOFC will be assisted by legal representatives.

• [36] It is also unclear as to whether a claim is pressed regarding the Respondent's vicarious liability for the conduct of particular employees in circumstances where the Complainant has not specified such an allegation in their SOFC. This also raises the complexity of the matter in relation to the issues to be determined.

• [37] I do not accept the submission that the 'factual matrix is largely undisputed' nor that remaining issues centre on 'policy matters rather than complex legal questions'. The Respondent's SOFC indicates that the facts as outlined by the Complainant are disputed and the alleged contraventions require consideration of matters of both fact and law.

• [38] Having had regard to the complexity of the matter, it must now be considered whether legal representation would enable the proceedings to be dealt with more efficiently.
• [39] In Dawson, Vice‑President O'Connor noted that it has been established that the likelihood of a matter being handled with greater efficiency is more likely where competent legal representation is involved.[12]

• [40] In this matter, the parties have participated in conciliation conferences both in this Commission and at the QHRC. The dispute between the parties remains unresolved. In my view, the presence of legal representatives will assist the parties in potentially resolving the matter at a further conciliation conference or by more efficiently narrowing the matters in issue and focusing of relevant issues of fact and law.[13]

• [41] In circumstances where the matter proceeds to a hearing, the expertise of legal representatives will enable the proceedings to be dealt with more efficiently by ensuring only relevant matters are put before the Commission. This will also ensure that the procedural aspects of the hearing are adhered to, including the efficient conduct of examination of witnesses.[14] I am satisfied that legal representatives will maximise the efficient conduct of a hearing.

• [42] Section 530(4) of the IR Act only requires the Commission to be satisfied of the existence of one of the jurisdictional facts in order to consider exercising discretion to grant leave, and I am satisfied that my discretion should be exercised based on s 530(4)(a). For completeness, however, I will also consider s 540(4)(b).

• [43] Section 540(4)(b) provides that leave may be granted if 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. The Respondent has submitted that although it has access to in‑house resources, it does not have dedicated in-house employees with the necessary experience and expertise in matters relating to the proceedings. It circumstances where in-house employees do not have expertise in matters involving alleged contraventions of the Anti‑Discrimination Act 1991 ('the AD Act'), I am satisfied that it would be unfair not to allow the Respondent to be represented where it is unable to represent its interests in the proceedings.

• [44] The Respondent does not seek that leave be granted pursuant to s 530(4)(c) and accordingly it is unnecessary to consider this provision. I will note however that I do not consider that granting leave for the Respondent to be legally represented will impact the fairness between the parties. When previously considering submissions relating to potential power imbalance in Clements v Phillips (No. 2), I noted the following:[15]

Leave in these circumstances is granted not to afford greater power to a party but to assist the Commission with the efficient conduct of the proceedings. It is also noted that a lawyer's duty to the Commission prevails over that of the duty to their client. As considered in E. Allen and Ors v Fluor Construction Services Pty Ltd -

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.

• [45] The Complainant submits that granting leave "without proper safeguards" potentially breaches the human right to equality before the law, as provided for in s 15 of the Human Rights Act 2019 ('the HR Act'), and the right to a fair hearing as provided for in s 31. Members of the Commission are experienced in managing proceedings involving parties both represented and non-represented to provide procedural fairness and to ensure equality before the law and a fair hearing.

• [46] The Complainant's right to equal protection under s 15(4) of the HR Act is not compromised by granting leave for the Respondent to be legally represented. I note the comments made in Wanninayake where Industrial Commissioner Neate determined that the decision by the Complainant not to engage legal representation did not mean that the Respondent should be denied the opportunity to efficiently present its case through legal representation. In Wanninayake, Commissioner Neate stated the following:[16]

... 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.

• [47] I have had regard to the HR Act, in particular the Complainant's rights to a fair hearing and to equality before the law. I am satisfied that this decision is compatible with human rights in accordance with the legislation.

• [48] The Complainant raised a number of matters that are not relevant to the application before the Commission but will be addressed for completeness.

• [49] The Complainant submits that they are at a significant procedural disadvantage as they must now consider whether to seek legal representation resulting in delay and additional stress. If the Complainant wishes to seek legal representation it is open to them to request further time to do so if required. There will be limited prejudice to the parties in circumstances where a conference or hearing dates have not yet been listed.

• [50] The Complainant contends that they were served with the Form 101 Application via email but "was not given proper notice of the process for objecting or the significance of the application". I do not accept this submission on the basis that the Form 101 outlines on the first page the process by which a party may file an objection. Regardless, the Complainant was provided with an extension of time to ensure that they were not disadvantaged, allowing them to file an objection outside the time limitation period.

• [51] The Complainant submits that their disabilities affect their ability "to process complex legal proceedings, particularly when facing unexpected changes in the procedural landscape". The presence of legal representatives will assist the Commission to ensure that the 'procedural landscape' is as predictable as possible in keeping with conference and courtroom management processes. In my experience, unexpected changes are more likely to occur when parties are not experienced in participating in these procedures.

• [52] The Complainant seeks that "enhanced procedural protections be provided for the Complainant's participation as a self-represented disabled person". Such matters are beyond the scope of this application, however, requests relating to specific procedural issues may be made by way of an application in existing proceedings which are then considered by the Commission.

• [53] For the reasons outlined above, I make the following order:

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] [2022] ICQ 001 ('Hume') [34] - [44].

[2] [2024] ICQ 16 ('Sillay').

[3] [2021] QIRC 118 ('Dawson') [20].

[4] E. Allen and Ors v Fluor Construction Service Pty Ltd [2014] FWCFB 174, [48].

[6] Montesin v Brisbane City Council [2022] QIRC 31 ('Montesin') [18].

[7] Alistair v Brisbane City Council [2024] QIRC 293 ('Alistair') [40].

[8] [2014] QIRC 079 ('Wanninayake') 6.