INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16	
PARTIES:	NORMAN SILLAY
(appellant)
v
STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES)
(respondent)	
FILE NO:	C/2024/23	
PROCEEDING:	Appeal	
DELIVERED ON:	23 August 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	25 July 2024	
MEMBER:	Davis J, President	
ORDER:	The appeal is dismissed	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – APPLICATION FOR LEGAL REPRESENTATION – where the appellant seeks to appeal a decision from the Queensland Industrial Relations Commission (QIRC) granting leave for the respondent to be legally represented in an unfair dismissal proceeding – where a jurisdictional fact was found, allowing the exercise of discretion of the QIRC to grant leave under s 530 of the Industrial Relations Act 2016 – where leave was given under 
s 530(4)(a) – where it was held that private counsel representing the respondent would allow for the matter to be dealt with in a more efficient manner given its complexity – whether there was the existence of a jurisdictional fact to enliven the discretion of the QIRC – whether if the jurisdictional fact was found, if that discretion was correctly exercised
Industrial Relations Act 2016 (Qld), s 529, s 530
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26, followed
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5, cited
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, cited
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, cited 
Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, followed
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited 
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, followed
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32, cited
R v A2 (2019) 269 CLR 507; [2019] HCA 35, cited
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; [1981] FCA 191, cited 
Shrimpton v The Commonwealth (1945) 69 clr 613; [1945] HCA 4, cited 
Sillay v State of Queensland (Queensland Corrective Services) [2024] QIRC 82, cited
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; [1987] NSWCA, cited
State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, cited
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, considered	
		
COUNSEL:	C Massey for the appellant
M Doyle for the respondent
	
SOLICITORS:	Maurice Blackburn for the appellant
Holding Redlich for the respondent
	
[1]	The appellant, Norman Sillay is a member of Together Queensland Industrial Union of Employees (Together).  He is the applicant in proceedings brought in the Queensland Industrial Relations Commission (QIRC) where he alleges that he was unfairly dismissed by his employer, the State of Queensland, from his position with Queensland Corrective Services (QCS) (the principal application).
[2]	Mr Sillay appeals a decision made in the QIRC on 15 April 2024 granting leave to the State to be represented on the principal application by private lawyers.
Background 
[3]	Mr Sillay commenced employment with QCS in January 2017.  He was the subject of a disciplinary process which resulted in his dismissal on 24 January 2024.
[4]	On 14 February 2024, Together filed an application in the QIRC on Mr Sillay’s behalf seeking an order for his reinstatement.
[5]	The principal application attached various documents explaining the circumstances of Mr Sillay’s dismissal.  Five allegations founded the decision to dismiss Mr Sillay.  These are described in the material attached to the principal application as:
“Allegation 1
Between 2 February 2021 and 15 June 2022, you failed to comply with Custodial Operations Practice Directive requirements by failing to advise the Chief Superintendent of Townsville Correctional Centre that you were named as the respondent in a domestic violence order.
Allegation 2
On 17 August 2021, you made a false declaration by signing a Form 212 declaring that you were not a person named as a respondent in a domestic violence order.
Allegation 3
On 2 January 2022, at TCC (Womens), you failed to ensure the health and welfare of prisoners by delaying their receipt of medical treatment.
Allegation 4
On 2 January 2022, at TCC (Womens), you were rude to Nurse Schaumburg and made inappropriate comments about medical staff to your colleagues.
Allegation 5
On 13 November 2022, at TCC (Mens Farm), you failed to maintain vigilance while conducting observations of the Visits session.”  
[6]	In the disciplinary process which followed, Mr Sillay:
(a)	admitted allegation 1 and made some submissions in mitigation;
(b)	admitted making the declaration the subject of allegation 2 and admitted that it was objectively false but claimed to have misunderstood its contents;
(c)	admitted the substantial allegations made in allegation 3 but sought to explain his conduct;
(d)	admitted the substantial allegations made in allegation 4 but sought to explain his language; and
(e)	denied that he was asleep while on duty.  This conduct was caught on CCTV and Mr Sillay argued that the recording does not show him asleep.
[7]	On 29 February 2024, the State filed an application for leave to be represented by a lawyer in the principal application (the leave application).  
[8]	The leave application was supported by:
(a)	a written submission attached to the leave application;
(b)	a response to the principal application;
(c)	an affidavit of Kristy Toy, a lawyer employed by Holding Redlich Solicitors, filed 29 February 2024 in support; and  
(d)	a further affidavit of Ms Toy filed 28 March 2024, and further written submissions were also filed on that date.  
[9]	On Mr Sillay’s behalf, an affidavit sworn by Christopher Hackett, a representative of Together, was filed which attached written submissions.
[10]	No party sought to make oral submissions on the application and it was decided on the papers.
The submissions below
[11]	The application was made pursuant to s 530 of the Industrial Relations Act 2016 (the Act).  Relevantly, ss 529 and 530 provide:
“529	Representation of parties generally
(1)	A party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented in the proceedings by– 
	(a)	a lawyer, only in accordance with section 530; or
	(b)	an employee or officer of an organisation appointed in writing as the agent of the party or person; or
	(c)	if the party or person is an organisation–an employee, officer or member of the organisation; or
	(d)	if the party or person is an employer–- an employee or officer of the employer; or
	(e)	another person appointed in writing as the agent of the party or person, only with the leave of the industrial tribunal conducting the proceedings.
…
530	Legal representation
(1A)	This section applies in relation to proceedings other than a proceeding for a public service appeal.
(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– 
	(a)	for proceedings in the court– 
	…
	(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.
(5)	For this section, a party or person is taken not to 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– 
		(i)	an organisation; or
		(ii)	a State peak council; or
(iii)	another entity that only has members who are employees.
           …
(7)	In this section-
	industrial tribunal means the Court of appeal, court, full bench, commission or Industrial Magistrates Court.
	proceedings– 
(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.”
[12]	There was, on appeal, dispute as to the proper construction of ss 529 and 530.  However, it wasn’t in dispute either in the QIRC or on appeal that:
(a)	section 529 prohibited legal representation except by leave; and
(b)	leave could only be granted to the State if one of the conditions in s 530(4) applied.
[13]	Both in the QIRC and on appeal the State relied upon s 530(4)(a).  As to the submission that legal representation would lead to efficiency, the State submitted in the QIRC the case has a “degree of legal and factual complexity” and the relevant issues were:
“(a)	whether the allegations against the Applicant can be substantiated, having regard to the available evidence;
(b)	whether appropriate weight has been given to each piece of evidence in substantiating the allegations against the Applicant;
(c)	whether the termination of the Applicant’s employment was appropriate having regard to the seriousness of the substantiated allegations;
(d)	the unsuitability of reinstatement or re-employment in the context of the loss of trust and confidence that the Respondent has in the Applicant and the Respondent’s duty to manage the health and safety of employees (including staff from other departments working in prisons and prisoners themselves) in the workplace.”
[14]	The State submitted to the QIRC that legal representation will “assist” because:
(i)	lawyers have a paramount duty to the Court;
(ii)	lawyers will assist the QIRC to adhere to its practices and procedures; and
(iii)	lawyers will assure that the QIRC remains focused on the real issues.
[15]	As to the ground prescribed by s 530(c), the State submitted:
“Fairness
28.	The involvement of legal representation in this matter will balance fairness between the parties because it will aid in the proper case and courtroom management.
29.	The Applicant is represented by Mr Hackett, an industrial officer of TQ. TQ has significant experience in industrial matters, including unfair dismissal matters before the Commission.  In the circumstances, the Respondent submits that fairness between the parties will be enhanced by the presence of a legal representative external to the Respondent’s legal team.
30.	The Respondent cannot speak to the Applicant’s division of resources, however suggests that TQ has a team of skilled industrial advocates, with some who are admitted lawyers or have obtained a law degree.  While the Respondent cannot comment on the size of the Union’s resources, the Respondent submits that TQ is nevertheless sufficiently resourced so as to assist the Applicant in the Proceedings.
31.	As outlined above, the Application involves a degree of complexity and the outcome of the Application is likely to have a significant impact on the Respondent, including significant findings that could be made about the Respondent (and its employees) in the event the Commission determines the Application to be successful.  Further, given the facts of the matter and evidence are likely to be heavily disputed, the Respondent should be afforded the opportunity to present the most cogent legal defence available and will be assisted in that regard by legal representation.
32.	More particularly, the Respondent is bound by the model litigant principles in instructing its legal representatives, and has a paramount duty to the administration of justice and the Commission, and requires, inter alia: 
(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.
33.	The Applicant submits that he has been negatively financially impacted by the termination of his employment and hiring his own private lawyers to match the capabilities of the State of Queensland is not financially practicable for him.  As noted by Industrial Commissioner Neate in Wanninayake v State of Queensland (Department of Natural Resources and Mines):
	The fact that one party, either by choice of circumstances, 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.”
[16]	Mr Sillay, through Together, submitted in relation to the efficiency ground:
(a)	the State has in-house lawyers who can appear as of right;
(b)	those employed lawyers are familiar with applications like the principal application;
(c)	the “unnecessary involvement of private lawyers” has the potential to complicate and frustrate the process;
(d)	the engagement of private lawyers raises costs questions and costs might be sought against Mr Sillay; and
(e)	the principal application is not factually complex and raises no difficult legal questions.
[17]	As is evident, some of the submissions made in writing by the State and filed on 28 March 2024 were in reply to the written submissions filed by Together in response to the State’s submissions which were filed with the leave application.
[18]	As to the fairness ground, it was submitted by Mr Sillay:
“17.	The Respondent submits that the use of private lawyers contributes to the fairness of the Commission proceedings overall.
18.	The Respondent references that the Applicant has access to an Industrial Officer from his Union as a representative in these matters.  Objectively speaking, the Applicant’s representative is not a lawyer.  The Respondent states that the Together Union has significant experience in industrial matters before the Commission, however Together Union has comparatively fewer resources than the Respondent both in terms of financial resources and Human Resources/Legal staff.
19.	To be clear, if the Respondent’s application is accepted, the Respondent will have both an internal legal team (through Queensland Corrective Services) and an external 	legal team (through private lawyers) representing them during the proceedings, and the Applicant will have no legal team.
20.	The Respondent cites the Model Litigant Principles in arriving at their conclusion that private lawyers are appropriate for this matter.  The Applicant respectfully submits that the Model Litigant Principles include “not seeking to take advantage of an impecunious opponent”.  The Applicant has been negatively financially impacted by the termination of his employment and hiring his own private lawyers to match the capabilities of the State of Queensland is not financially practicable for him.
21.	The Model Litigant Principles also include “where it is not possible to avoid litigation, keeping the costs of litigation to a minimum”.  The introduction of private lawyers, especially at the conciliation conference stage of a matter will inevitably increase the costs associated with the matter.”
[19]	Before the QIRC there were few submissions on the terms of s 530 and no submissions as to any limits to the exercise of discretion.  The application was put and defended on the understanding that the discretion had arisen and the only issue was as to how it would be exercised.
The decision below
[20]	Deputy President Hartigan who constituted the QIRC recited some uncontentious background facts and then referred to s 530 and to some statements by O’Connor VP in State of Queensland (Department of Premier and Cabinet) v Dawson.  There, O’Connor VP referred to various authorities where observations were made:
(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.
[21]	In giving leave the QIRC said:
“[11]	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 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.
Efficiency and complexity
[12]	Mr Sillay objects to QCS’ application for legal representation, particularly in circumstances where he contends that QCS has an internal Human Resources function and legal practitioners, and where representation by lawyers “should be the exception and not the rule” in Commission matters.  Mr Sillay further submits that he does not agree with QCS’ assertion that the involvement of legal representation will assist in resolving the dispute as quickly, inexpensively and efficiently as possible.  Rather, that the involvement of private lawyers, especially during a conciliation conference, has “the potential for discussions to devolve into highly technical legal arguments” and “may lead to delays in settling matters due to private lawyers frequently not having the authority to make decisions regarding the settlement of matters”.
[13]	Whilst Mr Sillay’s submissions appear to express his opinion, or perhaps his representatives’ opinion, regarding the involvement of lawyers, he provides no factual foundation for the opinion he expresses.
[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.
[15]	Relevantly, I do not accept the broad submissions that the involvement of legal practitioners would add to the inefficiency and complexity of the proceedings.
[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.
[17]	Mr Sillay submits that the matter is not legally complex, rather, “the facts of this matter are a fairly standard disciplinary process resulting in termination of employment.”
[18]	Given that the matter has yet to proceed to a conciliation conference, I have elected not to list the details of the allegations which were found to have been substantiated.  Needless to say, they can be characterised as being serious allegations.  A lengthy investigation process, followed by a show cause process, was embarked upon.  The allegations together with the subsequent processes that were adopted will no doubt need to be considered by the Commission.
[19]	Indeed, at this preliminary stage of the proceeding, the Application and the Employer’s Response are together many hundreds of pages in length.  The Commission will be assisted by the expertise and skill of experienced legal representatives who regularly appear in the jurisdiction and are familiar with Commission procedures and processes.  It is also expected that an experienced legal representative will aid in the efficient resolution of the matter by utilising appropriate forensic skills during the course of the matter.
[20]	Mr Sillay further contends that the involvement of legal representation provides temptation for the State of Queensland to pursue costs against an applicant in the Commission which increases the perception of an adversarial process.  Mr Sillay notes that he would be more amenable to consenting to the involvement of legal representation if QCS were to provide an undertaking that they would refrain from pursuing costs in the matter.
[21]	This submission has the appearance, at least, of being scandalous.  There is no factual basis to assert that by granting leave for the State to be legally represented that it will seek to pursue costs against Mr Sillay.  Such a submission has no regard to the following:
(a)	that the cost provisions in s 545 of the IR Act provide, inter alia, that the default position is that each party bears its own costs;
(b)	that the Commission may only award costs in limited circumstances, including where the party has made the application or responded to the application vexatiously or without reasonable cause, or it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success;
(c)	the fact that the State is bound by the model litigant principles; and 
(d)	the matters that must be considered pursuant to s 530 of the IR Act.
Fairness
[22]	Mr Sillay resists QCS’ application on the basis that legal representation would not aid in fairness between the parties, as Together Union has comparatively fewer resources than QCS both in terms of financial resources and human resources/legal staff.  Mr Sillay further submits that the introduction of private lawyers will inevitably increase costs associated with the proceedings.
[23]	In the circumstances of this matter, I consider that the involvement of legal representation will balance fairness between the parties because it will aid in the proper case and courtroom management, particularly in circumstances where Mr Sillay is represented by Together Queensland.
[24]	Another factor that weighs in favour of the granting of the application is that the State is bound by the model litigant principles in instructing its legal representatives, and has a paramount duty to the administration of justice and the Commission, and requires, inter alia:
(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.
[25]	Finally, Together Queensland is an employee organisation that appears regularly before this Commission in a variety of industrial matters.  For this reason, I do not accept that Mr Sillay would be disadvantaged if leave were granted in circumstances where he has the benefit of being represented by Together Queensland.”
[22]	The Deputy President then granted leave:
“[26] 	For the forgoing reasons, I consider that there are a number of factors that weigh in favour of the exercise of the discretion to grant leave for the Respondent to be legally represented.”
The grounds of appeal
[23]	Mr Sillay appeals on the following grounds:
“Ground 1 – error of law (s 556(1)(a)
1. 	The Commissioner committed jurisdictional error by making an order pursuant to s.530(l)(e)(ii) of the Industrial Relations Act 2016 (Qld) (the Act) in circumstances where the jurisdictional facts required by s. 530(4) were not and could not be established because:
a. 	there was no particular complexity to the matter such that the grant of leave for legal representation would have enabled the proceeding to be dealt with more efficiently;
b. 	in circumstances where offices from Crown Law could appear on behalf of the respondent, the respondent was able to represent its own interests; and
c. 	in circumstances where offices from Crown Law could appear on behalf of the respondent and where the appellant was not legally represented, it would not be unfair to not allow legal representation.
Ground 2 – error of law (s 556(1)(a)
2.	In the alternative, the Commissioner committed jurisdictional error by failing to form the opinion or state of satisfaction required by s. 530(4) prior to purporting to exercise the discretion conferred by s.530(l)(e) because she did not:
a.	analyse the matters in issue in the proceeding and form an opinion that there    was some particular complexity to one or all of those issues and that the grant of leave for legal representation would mean that the proceeding would be conducted more efficiently; 
b.	form an opinion that the State was not able to represent its own interest such that it would be unfair not to allow a grant of leave for legal representation; or 
c.	form an opinion that, having regard to the fairness between the parties, that it would be unfair to the respondent to not allow a grant of leave for legal representation.
Ground 3 – error of law (s 556(1)(a)
3.	Further and/or in the alternative, the Commissioner erred by constructive failing to exercise the discretion conferred by s. 530(4) and instead proceeded on the erroneous assumption that if one or more of the jurisdictional requirements set out in sub section 4 were present leave to be legally represented should be made.
Ground 4 – error of law (s 556(1)(a)
4.	Further and/or in the alternative, the Commissioner erred by taking into account an irrelevant consideration when considering the State is bound by the model litigant because:
a.	the State was bound by the model litigant principles irrespective of whether leave for legal representation was granted; and
b.	the model litigant principles do not bear on the consideration as to whether the State should be represented by Crown Law or private counsel.”
The irony of it all
[24]	Before the QIRC, where no counsel were involved, neither party descended to a detailed examination of s 530 of the Act. Instead, both parties made submissions as to the exercise of discretion.
[25]	The application was fought as a standard, low key application where both parties sought the exercise of discretion in their favour.  On appeal, Together elevated the application to one of a test case.
[26]	On appeal, Together briefed experienced, capable counsel who made detailed and well-structured submissions as to the proper construction of the relevant provisions and the application of those provisions.  Private counsel for QCS responded with equally thoughtful submissions.
[27]	The Deputy President did not have the benefit of those submissions.  I did and benefited significantly from them.
[28]	These reasons explain the limitations on the discretion bestowed by s 530.  The course of the application and the appeal illustrate the value of legal representation and the fact that s 530 of the Act is obviously too restrictive in its regulation of the circumstances in which legal representation ought to be allowed.
Proper construction of s 530 of the Industrial Relations Act 2016
[29]	Various submissions were made concerning the construction of s 530 of the Act and, to a point, s 529.  It is unnecessary to set out those arguments in detail.  The analysis which follows deals with all the submissions.
[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.

[35]	The task then is to:
(a)	identify the complexity; and
(b)	identify how, “having regard to the complexity”, having a party represented by lawyers would “enable the proceedings to be dealt with more efficiently”.
[36]	Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness.  However, the assessment to be conducted under each of the two subsections is quite different.
[37]	Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation.  Legal representation “may” be allowed where it would be unfair to deny it “because the party or person is unable to represent the party’s or person’s interests in the proceeding”.  Therefore, the first question is whether the party or person is “unable to represent [their] interests in the proceedings”.  If the answer to that question is in the affirmative, then the use of the word “because” requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation.
[38]	Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings.  Legal representation “may” be allowed where it would be unfair not to allow legal representation to the party.  However, as with s 530(4)(a), the assessment is limited.  The assessment of whether it would be “unfair” is made “having regard to fairness between the party or person, and other parties or persons in the proceedings”.
[39]	In conducting the assessment under s 530(4)(c), s 530(5) is relevant.  A lawyer employed by a party (here the State) may appear for that party without leave.  Therefore, when considering the unfairness to a party who employs lawyers, the question becomes whether it would be unfair not to allow the party to be represented by private lawyers rather than their own employed lawyers.  That assessment then is had “having regard to fairness between the party … and other parties in the proceedings”.
[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.
[41]	Typically, a jurisdictional fact may be:
(a)	an objectively ascertainable fact;
(b)	a legal stipulation;
(c)	a matter of opinion; or
(d)	a matter of judgment.
[42]	A jurisdictional fact may be a “complex of elements”.  Cases such as Timbarra Protection Coalition Inc v Ross Mining NL show how different questions of construction may arise.
[43]	These four species of jurisdictional fact can be placed in two categories.  Those described in (a) and (b) above are objectively ascertained, the fact in issue exists or it doesn’t; the legal stipulation applies as a matter of law or it doesn’t.  Therefore on appeal, there is either an objectively ascertained error of fact, or an error of law.  
[44]	Those jurisdictional facts described in (c) and (d) above are not objectively ascertained.  They involve the decision maker making an assessment against some factual setting.  Generally, the assessment calls for judgment, no particular view is correct and there is room for reasonable differences in the assessment. The assessment then is an exercise of judicial discretion reviewable only where House v The King error is found.
[45]	Mr Sillay submits that the jurisdictional facts in each of ss 530(4)(a) and 530(4)(c) are ones that must be objectively ascertained.  The State submits that these things are matters of judgment or opinion.
[46]	The objective of statutory construction is to ascertain the meaning of the text adopted by the legislature but read in the context of the statute as a whole against other relevant context and by reference to purpose.
[47]	Mr Sillay submits that both the jurisdictional facts in ss 530(4)(a) and 530(4)(c) are expressed as objective facts.  There are no express words making the jurisdictional facts dependent upon any opinion or state of mind of the decision-maker, here the QIRC.  This can be contrasted with ss 110(4), 145, 150, 177(1)(b), 195 and 197 of the Act which all vest power upon a decision-maker upon satisfaction of prescribed things.  Section 177(1)(a) requires a Commissioner to “consider” a thing as something which exists.
[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 judgment as explained in Norbis v Norbis.
[49]	There are many examples where the statutory language is not expressly stated in the form of a requirement of a state of mind such as “belief” or “suspicion” or “satisfaction” but which still requires the formation of opinion or the exercise of a matter of judgment.  Norbis v Norbis itself concerned the power of a judge to make an order dividing property between spouses if it was “just and equitable” to do so.  That was held to be a discretionary judgment.  Singer v Berghouse concerned the power of a court to make an order in family maintenance proceedings when the claimant had been left “inadequate” provision by the deceased’s will.  That was held to be a discretionary judgment.
[50]	As Gageler J (as his Honour then was) stated in Minister for Immigration and Border Protection v SZVFW:
“[44]	The holding in Norbis v Norbis, and their Honours explanation of the reason for it, accorded with earlier decisions which had applied the House v The King standard to appellate review of evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes.  Conclusions as to the “just and equitable” apportionment of responsibility between tortfeasors under contribution legislation, as to assessment of general damages at common law, as to the valuation of property, and as to the best interests of the child under child welfare legislation furnish examples.  Their Honours in Norbis v Norbis went on to explain that the line of demarcation which they identified stemmed from the fundamental conception of an appeal as a process for the correction of error: “[i]f the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists  just such a difference of opinion between the judges on appeal and the judge at first instance”.” (footnotes omitted)
[51]	This construction is fortified by the nature of the power which s 530(4) bestows.  A decision to grant leave to a party to be represented in proceedings does not determine rights.  It is an interlocutory order which is of the nature of a case management decision.  Those powers are usually regarded as discretionary and ones with which an appeal court is loath to interfere.  
[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 judgment about which different minds may differ and is, in my view, clearly an exercise of discretion.  
Consideration of the grounds of appeal
Ground 1:  Jurisdictional Error; The objective factors needed to support the jurisdictional facts in each of ss 530(4)(1)(a) and (c) did not in fact exist.
[53]	Mr Massey of counsel who appeared for Mr Sillay accepted, properly, that ground 1 could not succeed if, on a proper construction of s 530(4), the jurisdictional facts in each of ss 530(4)(a) and (c) depended upon the formation of an opinion or judgment. I have held that they do.
Ground 2:  Jurisdictional Error by failing to form the opinions required by ss 530(4)(a) and (c). 
[54]	Ground 2 requires an examination of the Deputy President’s reasons.  Subject to statutory provisions to the contrary, the giving of reasons is a necessary element of the exercise of judicial power.  The giving of reasons is usually a necessary element of the exercise of administrative power.
[55]	In Wainohu v New South Wales, it was observed that the requirements needed to be fulfilled for a set of reasons to be sufficient “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”.
[56]	Generally, the reasons will require the identification of the issues and how the resolution of those issues was arrived at.
[57]	However, reasons must not be read over critically.  As observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
“When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic.  In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review.  It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker.  The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
[58]	In AMS v AIF, Kirby J said:
“… an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise or discretion or to require that it be re-exercised on a retrial.”  (emphasis added; footnotes omitted)
[59]	The adequacy of reasons is judged against what was in issue before the Deputy President.  As already observed, the submissions assumed the discretion had arisen for exercise.  All the Deputy President was required to do was exercise it.  
[60]	The reasons are short.  However, as to the exercise of discretion under s 530(1)(a), the Deputy President:
(a)	directed herself to the relevant subsection;
(b)	directed herself to the arguments of Mr Sillay;
(c)	rejected those submissions on the basis that they were broad and general; and
(d)	determined that the matter was complex as:
(i)	the allegations against Mr Sillay are serious;
(ii)	there was a lengthy investigation followed by a show cause process;
(iii)	there are many documents; and
(iv)	lawyers will use appropriate forensic skills to deal with the case.
[61]	Nowhere does the Deputy President expressly find that “having regard to the complexity of the matters”, legal representation will “enable the proceedings to be dealt with more efficiently”.

[62]	However:
(a)	the Deputy President set out s 530 at paragraph [9] of the judgment;
(b)	the Deputy President then identified the jurisdictional facts pertaining to each of ss 530(4)(a), (b) and (c);
(c)	in paragraphs [18] and [19], the Deputy President referred to the complex features of the principal application; and
(d)	in paragraphs [12], [16] and [19] the Deputy President explained how the involvement of legal representatives would lead to the proceedings being better dealt with.  
[63]	In those circumstances, I easily infer that the Deputy President was aware of the task she faced in applying s 530(4)(a) and she found the jurisdictional fact after considering the complexity of the case and the impact of lawyers.  She specifically found that the involvement of lawyers “… will ensure the proceedings, including any conciliation conference, proceeds efficiently”.  Reading the reasons fairly and not over critically, I see no error in the finding of the jurisdictional fact prescribed by            s 530(4)(a).
[64]	Mr Sillay now assumes on the appeal that the Deputy President also addressed the jurisdictional fact identified in s 530(1)(c).  On that assumption, Mr Massey points to paragraphs [22]-[25] of the reasons and submits error.
[65]	As can be seen, the reasoning of the Deputy President proceeds under two headings.  The first is “Efficiency and complexity”, which is obviously a reference to the jurisdictional fact prescribed by s 530(4)(a).  The second heading is “Fairness”, which could be a reference to the jurisdictional fact prescribed by s 530(4)(c) or it could be a reference to discretionary factors.  In my view, it is the latter.
[66]	The leave application says that the application is made under “s 530(1)(e)(ii) and (4)”.
[67]	It does not distinguish between the subsections of s 530(4).
[68]	The submission which is attached to the leave application also has two headings: “Efficiency and complexity of the application” and “Fairness”.  The submissions do not distinguish between the subsections of s 530(4).
[69]	Ms Toy’s affidavit filed with the leave application shows an intention only to rely on s 530(4)(a).  There is no mention of the fairness considerations prescribed by either     ss 530(4)(b) or (c).  Ms Toy deposed: 
“(1)	I Christie Toy, am an Australian Legal Practitioner (solicitor) within the employ of Holding Redlich who acts on behalf of the State of Queensland (Queensland Corrective Services) (Respondent).
(2)	On 19 February 2024, Holding Redlich was engaged to act for the Respondent in relation to a Form 12 – Application for reinstatement filed on 14 February 2024 (Application) by Together Queensland, Industrial Union of Employees, on behalf of Norman Sillay (Applicant) in the Queensland Industrial Relations Commission (Commission).
(3)	I make this affidavit in support of the Form 101 – Application for leave to be represented by a lawyer in certain proceedings, that seeks leave for the Respondent to be legally represented in the proceedings (TD/2024/13).
(4) 	In my assessment, the Application raises complex legal and factual issues which will have to be considered by the Commission in addressing the Application, including:
(a)	whether the allegations against the Applicant can be substantiated, having regard to the available evidence;
(b)	whether appropriate weight has been given to each piece of evidence in substantiating the allegations against the Applicant;
(c)	whether the termination of the Applicant’s employment was appropriate having regard to the seriousness of the substantiated allegations;
(d)	the unsuitability of reinstatement or re-employment in the context of the loss of trust and confidence that the Respondent has in the Applicant and the Respondent’s duty to manage the health and safety of employees (including staff from other departments working in prisons and prisoners themselves) in the workplace.
(5)	In light of the above issues, if the Commission grants leave for the Respondent to be legally represented, our involvement will assist the Commission by efficiently narrowing the scope of the issues in dispute, preparing concise and relevant evidence and submissions, testing the evidence by examination where necessary, and aid the Commission in identifying and applying the relevant legal principles.”
[70]	Neither the submissions filed on Mr Sillay’s behalf on 25 March 2024 nor the further submissions filed by the State on 28 March 2024 suggest that ss 530(4)(b) or (c) are relied upon. Mr Hackett seems to have understood that fairness was a discretionary factor being relied upon by the State rather than as an element of the consideration under ss 530(4)(b) or (c).  In the written submissions annexed to his affidavit and under the heading “Fairness”, he says:
“17.	The respondent submits that the use of private lawyers contributes to the fairness of the commission proceedings overall.” (emphasis added)
[71]	In my view, the matters which the Deputy President considered under the heading of “Fairness” are considerations in the exercise of discretion not consideration of the jurisdictional fact prescribed by s 530(4)(b) or (c).  Therefore, it is unnecessary to consider Mr Massey’s submission in relation to either of those two sub-subsections of s 530(4) as they pertain to ground 2.
Ground 3:  Failure to exercise the discretion once the jurisdictional fact was proved.
[72]	Mr Sillay submits that on a proper construction of s 530(4), once one of the jurisdictional facts prescribed by s 530(4)(a), (b) or (c) is established it is then necessary for the QIRC to go on and exercise the discretion which has arisen.  It is a two-part process, it is submitted and the finding of a jurisdictional fact does not, of itself, determine the leave application in favour of the applicant.  That is accepted.
[73]	It is clear that the Deputy President understood that a discretion arose to be exercised once one of the jurisdictional facts prescribed by s 530(4) was established.  The Deputy President, having found the jurisdictional fact prescribed by s 530(4)(a), then exercised it in favour of granting the leave application.
[74]	As already observed, the Deputy President directed herself to the terms of s 530.  The Deputy President then turned to whether leave should be granted.  That consideration commenced at paragraph [11] of the judgment.  The opening two sentences of paragraph [11] are: “The discretion to grant leave for a party to be legally represented is outlined in section 530(4) of the IR Act.  The Commission may grant leave if…”.  What follows is then a recitation of each of ss 530(4)(a), (b) and (c) as relevant to the leave application.
[75]	It is clear that the Deputy President understood that a discretion arose once one of the jurisdictional facts was proved.
[76]	As I have previously explained, the Deputy President found the jurisdictional fact as prescribed by s 530(4)(a) and then went on to consider the exercise of discretion.  The Deputy President did that by weighing fairness between the parties and determining that Mr Sillay would not be disadvantaged if leave was given.  Paragraph [26] of the judgment shows that the Deputy President has in fact conducted the two-step consideration required by s 530.  There, the Deputy President said:  “For the following reasons, I consider that there are a number of factors that weigh in favour of the exercise of the discretion to grant leave for the Respondent to be legally represented.”
[77]	There is no substance in ground 3. 
Ground 4:  Irrelevant consideration 
[78]	By paragraph [24] of the judgment, the Deputy President observed that the State was bound by the model litigant principles.  The Deputy President took that fact into account when exercising the discretion in favour of granting the leave application.  Mr Sillay submits that the State was bound by the model litigant principles whether or not it is given leave to be legally represented.  Therefore, it is submitted, that factor must be irrelevant to consideration of the grant of leave.  
[79]	Primarily it is for a decision-maker to decide what is relevant to the making of the decision and what is not.  That is subject to the proper construction of the provision granting the power, which might mandate or prohibit the consideration of some factors.
[80]	As earlier observed, s 529 of the Act provides that parties should not have legal representation in proceedings in the QIRC.  Then, s 530 prescribes conditions whereby a discretion arises to grant leave to a party to be represented by a lawyer.  Sections 530(4)(b) and (c) prescribe fairness as a consideration in the jurisdictional fact which gives rise to the discretion in each of those sub-subsections.  Section 530(4)(a) does not.  That does not of itself mean that consideration of fairness between the parties are prohibited considerations in exercise of the discretion which arises once the jurisdictional fact prescribed by s 530(4)(a) is established.
[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.
[82]	Not only is fairness relevant to the exercise of discretion but it is difficult to see what limitations there would be as to that consideration.  If a factor is relevant to fairness and it arises as a result of one or more parties being or not being represented, it would surely be relevant.  I cannot see why the fact that the State is always bound by the model litigant principles as, whether legally represented or not, it is irrelevant to the exercise of discretion to give leave to the State to be legally represented.  The jurisdictional fact having been established, and the many and varied pros and cons to the exercise of discretion having been considered, a relevant factor is fairness to the other party, and a relevant consideration there is that the State is bound by the model litigant principles.
[83]	There is no substance in ground 4.
Conclusions
[84]	All four grounds of appeal having failed, the appeal must be dismissed.
[85]	Neither party seeks costs.
Order
1.	The appeal is dismissed.