QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Mario  v Workers' Compensation Regulator [2021] QIRC 406

PARTIES:	
	Mario, Lawrence 
(Appellant) 

v

Workers' Compensation Regulator (Respondent)
	
CASE NO:
	WC/2021/168	
PROCEEDING:
	Application to be legally represented 
	
DELIVERED ON:
	1 December 2021
	
MEMBER:

HEARD AT:	Hartigan IC

On the papers 

ORDER:
	Leave be granted for the Regulator to be legally represented in matter WC/2021/168 pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld). 
	
CATCHWORDS:	WORKERS' COMPENSATION –  APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 (Qld) – where respondent has requested leave to be legally represented under s 552B of the Workers Compensation and Rehabilitation Act 2003 (Qld) – where the respondent's request for legal representation is opposed – whether commission should exercise discretion to grant leave – consideration of s 530(4) of the Industrial Relations Act 2016 (Qld) – where leave granted
	
LEGISLATION:

CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld), s 552B
Industrial Relations Act 2016 (Qld), 
s 529, s 530

State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118
Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079	

Reasons for Decision

[1]	The Respondent, the Workers' Compensation Regulator ("the Regulator"), has sought leave, pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("WCR Act") to be legally represented in these proceedings. 

[2]	The substantive matter in these proceedings is an appeal by the Applicant, Mr Lawrence Mario ("Mr Mario") against a decision made by the Regulator pursuant to s 550(4) of the WCR Act. The Regulator's decision determined to set aside a decision made by WorkCover accepting Mr Mario's application for compensation and substituted a new decision to reject Mr Mario's application for compensation.

[3]	Mr Mario opposes the Regulator's request to be legally represented in these proceedings. 

[4]	On 4 November 2021, this Commission issued a Directions Order to the parties requesting that they each file in the Industrial Registry and serve on each other, written submissions in support of their position with respect to the objection to the Regulator's request. 

[5]	Accordingly, the question for my determination is whether the Commission should grant the Regulator leave to be legally represented.  

Relevant legislative provisions

[6]	Section 552B of the WRC Act provides for legal representation at appeal or conference in the following terms:

552B	Legal representation at appeal or conference 

A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with – 
(a)	the agreement of both parties; or
(b)	the appeal body's leave.

[7]	An appeal body is defined in the WRC Act as the industrial commission.

[8]	Section 529 of the Industrial Relations Act 2016 (Qld) ("the IR Act") deals with the representation of parties generally and is set out as follows:

529		Representation of parties generally 

(1)	Subject to section 530A(4), in proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—
(a)	an agent appointed in writing; or 
(b)	if the party or person is an organisation – an officer of member of the organisation
(2)	In this section – 
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. 

[9]	Section 530 of the IR Act relevantly provides for legal representation in the following terms:

530	 Legal representation 

(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 
(ii)	for a proceeding relater to a matter under a relevant provision 
…
(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 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 

Should leave be granted for the Regulator to be legally represented?

[10]	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 

[11]	The Regulator submits that allowing it to be legally represented will enable the proceedings to be dealt with more efficiently, because:

(a)	In order for the Regulator to appropriately respond to the appeal, it will be required to investigate and assess complex factual and medical evidence.

(b)	The appeal involves complex questions related to the involvement of a separate rejected claim for compensation made by the Appellant with WorkCover Queensland. Specifically, the decision maker in the review decision found that the subject of this appeal was not the main stressor, and it was other factors that the Appellant had reported to the independent psychiatrist that were the significant contributing factors to the Appellant's psychological injury. 

(c)	The resolution of the matters in this appeal will require the application and assessment of questions of both fact and law and both the Commission and the Appellant will be significantly aided by the provision of structured submissions drafted by a lawyer, specifically addressing the application of the relevant legislation and issues.

(d)	A lawyer can provide assistance to the Commission through their independence, forensic legal skills and overriding obligations to the Commission. 

[12]	In response to the Directions Order issued to the parties on 4 November 2021, Mr Mario, through seemingly Mr Mario's agent (although there has been no written appointment), by reply email stated:

Hi we refuse for the regulator to have a lawyer.

Mr Steven gave the wrong information, so he needs to face us and explain why he lied on his review.

Thanks
Tasha 

[13]	Following receipt of the Regulator's submissions in response to the Directions Order, Mr Mario's agent responded in the following terms:

Hi Michael, 

We disagree with your statement below.

We don’t care at all what rules and laws you are producing, Doesn't mean anything to my client. 

We just want to sue you and Steven may.

Thanks,
Tasha samuel. 

[14]	The Appellant provided no further written submissions in support of his position. 

[15]	The Regulator submits that the matter involves complex questions of fact and law and allowing the Respondent to be legally represented will enable the proceedings to be dealt with more efficiently. 

[16]	The Appellant makes no submissions with respect to the complexity of the matter. 

[17]	The proceedings, as it currently appears before me, includes matters of disputed law and fact. It is clear that there will be the requirement to consider and assess complex medical issues in order to determine the relevant stressor that contributed to the Appellant's injury. 

[18]	Further, I am of the view that the Commission would be assisted by having at least some of the examination in chief and cross-examination of the parties undertaken by a legal representative. Tendering documents through witnesses and examining witnesses on documents and complex medical issues involves potentially technical complex matters with respect to the Commission's receipt of such evidence. 
[19]	To that end, I consider that the conduct of the matter will be assisted with the involvement of legal representation to ensure that evidence presented to the Commission is done so with care and precision and that only those matters relevant to the determination of the proceedings are presented to the Commission. 

[20]	In State of Queensland (Department of Premier and Cabinet) v Dawson, his Honour O'Connor VP referred to the involvement of legal representation and the efficient conduct of litigation, and the consideration of those matters in various authorities as follows:

[22] 	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. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith:

[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

[19] 	More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd said at para [48]:

A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].

[20] 	Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.
[citations omitted]. 

[21]	I consider for the foregoing reasons, legal representation will assist the Commission in relation to matters involving points of law and that the skilful cross-examination of witnesses can only assist the Commission in determining the matters it must decide.

[22]	Relevantly, I consider that it will assist if one of the parties is legally represented to ensure 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 and that submissions are confined to the matters which the Commission must decide. 

Fairness

[23]	In Wanninayake v State of Queensland (Department of Natural Resources and Mines) Neate IC determined that the decision by an Applicant to not engage in legal representation did not mean that the Respondent should be denied the opportunity to engage legal representation and relevantly held:

… competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.

[24]	The Regulator acknowledges that, although at this point in time the Appellant is not legally represented, it would not object to the Appellant obtaining legal representation. 

[25]	The Regulator considers that it is bound by the model litigant principles which require, amongst other things, that:

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

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

[26]	Relevantly, adherence to the model litigant principles, together with the Commission's conduct of proceedings, will ensure that no disadvantage is suffered by Mr Mario if the Regulator is legally represented. 

[27]	Finally, I also consider that granting leave is likely to shorten, rather than expand, the length of the trial, and consequently, reduce the ultimate potential cost of the matter proceeding to hearing for both parties.

Miscellaneous matters

[28]	I note that the Appellant's submissions refer to the delegate who made the decision on behalf of the Regulator by name and states that "he needs to face us and explain why he lied on his review". 

[29]	An appeal to this Commission is, pursuant to s 558 of the WCR Act a hearing de novo.

[30]	The effect of this is that the Commission will consider Mr Mario's application for compensation afresh, without any reference to the reasons for the decision stated by the Regulator's delegate in the Regulator's decision. 

[31]	A hearing de novo will require that the parties start again and to call evidence to make out their respective cases. With respect to Mr Mario, he will be required to call evidence, and the onus rests with Mr Mario, to establish that his application for compensation should be accepted. 

Conclusion 

[32]	For the reasons outlined above, I have concluded that leave be granted for the Respondent to be legally represented in this proceeding pursuant to s 530(4) of the IR Act. 

Order

Leave be granted for the Regulator to be legally represented in matter WC/2021/168 pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).