QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Montesin v Brisbane City Council [2022] QIRC 031
	
PARTIES:	
	Montesin, Darren Jason  
(Applicant) 

v

Brisbane City Council
(Respondent)
	
CASE NO:
	TD/2021/47	
PROCEEDING:
	Application to be legally represented 	
DELIVERED ON:
	8 February 2022	
HEARING DATE: 
	On the papers 	
MEMBER:

HEARD AT:	Hartigan IC

Brisbane
	
ORDERS:	Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).
 	
CATCHWORDS: 

LEGISLATION:
	APPLICATION FOR REINSTATEMENT- APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 2016 - whether respondent can be legally represented under s 530 of the Industrial Relations Act 2016 - where application opposed - factors to be considered by the Commission in determining whether to allow legal representation – circumstances of the case - where leave is granted for legal representation 

Industrial Relations Act 2016 (Qld), s 530
	
CASES:	Mario v Workers' Compensation Regulator [2021] QIRC 406
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

Introduction 

[1]	The Respondent, Brisbane City Council ('the Council') has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 

[2]	The Applicant, Mr Darren Montesin ('Mr Montesin'), commenced employment with the Council in the position of Bus Operator on 14 July 2005. 

[3]	On 13 May 2021, Mr Montesin was dismissed from his employment with the Council on the ground that he allegedly failed to meet the performance standards of a Bus Operator in accordance with his performance management plan. 

[4]	On 28 May 2021, Mr Montesin, through his nominated agent at the time filed an application for reinstatement on the basis that the termination was unfair. 

[5]	On 7 January 2022, following an unsuccessful conciliation conference, the matter was mentioned before me by telephone. During the course of the mention, the Council put Mr Montesin on notice that it intended to seek leave to be legally represented in the substantive proceedings. Following the mention, I issued the parties with directions to file in the Industrial Registry and serve on each other, material in support of their positions with respect to any application for legal representation that was filed. 

[6]	Both parties complied with the directions. 

[7]	Mr Montesin, through seemingly his agent (although there has been no written appointment), raises an objection to leave being granted for the Council to be legally represented and raises the following issues, relevantly summarised, for consideration:

(a)	it would be a significant disadvantage to the Applicant to have the Respondent use a representative that is an Australian legal practitioner, given that the proceedings which led to the Applicant's dismissal proceeded without the involvement of legal representation by either party; 

(b)	the Applicant does not consider that the matter is complex and in the interests of fairness, both parties should be represented by a person of similar standing;

(c)	the details contained in the evidence of the Applicant's submissions will explain all components of the case and engaging legal representatives will overly complicate proceedings which will result in an unbalanced and unreasonable mediation; and 

(d)	the Council's request for legal representation could suggest that their case is fragile, and it could be inferred that the use of counsel is to further traumatise and intimidate the Applicant in a setting which he is unfamiliar and naturally nervous. 

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

Relevant legislation

[9]	Section 530 of the IR Act 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; 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)	 would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
(c)	it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings. 
Examples of when it may be unfair not to allow a party or person to be represented by a lawyer -
•	a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
•	a person is from a non-English speaking background or has difficulty reading or writing
(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)	an association of employers that is not registered under chapter 12; or
(iii)	a State peak council.-
(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. 

Should leave be granted for the Council to be legally represented by counsel?

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

(a)	the Applicant has a lengthy adverse employment history dating back to approximately November 2018, and has continually denied the existence or the seriousness of the contravening conduct which may mean the Respondent will have to prove most, if not all of the contravening conduct;

(b)	the Respondent expects to be required to call numerous witnesses to give evidence about the Applicant's disciplinary and performance history, the misconduct which gave rise to the termination, and the Applicant's rejection of the authority of his employer during his employment;

(c)	the Respondent expects that the Applicant will call witnesses which have no relevance or connection to the matter; and 

(d)	the Applicant currently has no legal or union representation and the Commission would be greatly assisted by the presence of legal representation on behalf of the Respondent to ensure the proceedings are conducted efficiently and that no extrinsic, irrelevant or defamatory materials are introduced by the Applicant.

[12]	The Respondent submits that it also intends to raise an issue in relation to the Applicant's alleged post-employment conduct which, it will argue, has the effect of wholly excluding the remedy of reinstatement. 

[13]	The Respondent submits that given the possible implication of the evidence of the Applicant's alleged post-employment conduct, the assistance of counsel in managing submissions and issues relating to self-incrimination and privilege will be of considerable importance in the course of the proceedings and in the interests of both the parties and the Commission. 

[14]	The Applicant submits that the matter is not complex and that all of the details contained in the Applicant's evidence will explain in 'plain English' all the components of the Applicant's case. The Applicant further submits that the use of legal representatives will overly complicate proceedings which will result in an 'unbalanced and unreasonable mediation'.

[15]	The Applicant did not provide any submissions with respect to the alleged post-employment conduct. 

[16]	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. [citations 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]. 

[17]	I am of the view that there are potential complex issues associated with the disputed facts in this matter. The submissions of the parties allude to a lengthy and complicated process associated with the allegations of misconduct. I am of the view that the Commission will be assisted by the legal representation of the Respondent by counsel. Given the potential number of witnesses referred to in the submissions, the efficient collating of evidence and the skilful cross examination of witnesses can only assist the Commission in determining the matters it must decide. 

[18]	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. 

[19]	A further issue adding to the potential complexity of this matter relates to the Respondent's allegations surrounding the Applicant's post-employment conduct. The Commission would be further assisted by efficient and focused submissions prepared by competent legal representatives in relation to this issue. 

Fairness

[20]	The Respondent, in its submissions, acknowledges that although at this point in time the Applicant is not legally represented, it would not object to the Applicant obtaining legal representation. 

[21]	The Respondent relies on the decision in Mario v Workers' Compensation Regulator and submits that the fact the Applicant has not engaged legal representation does not mean the Respondent should be denied the opportunity to engage such representation. 

[22]	The Applicant submits that it would be a significant disadvantage to the Applicant if the Respondent was permitted to engage a legal practitioner on the basis that the proceedings to date have been dealt with without legal representatives. The Applicant further submits that the inference to be drawn from the Respondent's application for legal representation by counsel is that it is to further 'traumatise' and 'intimidate' the Applicant in a setting in which he is 'unfamiliar' and 'naturally nervous'. 

[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 Applicant refers to an absence of legal representation to date. However, the Council, in its submissions, notes that in the event leave is not granted, the Council will still have legal representation through its solicitor employees of the Council employed at City Legal.  What Council is seeking is that it be legally represented by counsel. 

[25]	As referred to above, the Applicant contends that the application made by the Council is intended to 'further traumatise and intimidate' the Applicant. There is no basis, on the material before me, to accept this submission. Counsel's paramount duty is to the Court and to the administration of justice. This duty, coupled with the responsibility of the Commission to ensure that its practice and procedures are adhered to in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible act to ensure that parties are dealt with justly and fairly. 

[26]	Ultimately, I consider that balancing fairness between the parties can be aided through proper case and court room management. 

[27]	The respective 'strength' of a case is not an issue I need to consider when determining whether leave to be legally represented is granted. However, I do not accept the Applicant's submissions that an inference can be drawn that the Respondent's case is 'fragile' merely because it seeks leave to be legally represented. 

Conclusion 

[28]	For the above reasons, 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 is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).