Chamber of Commerce and Industry of Western Australia (Inc) v The Commissioner of Equal Opportunity

The plaintiff, the Chamber of Commerce and Industry of Western Australia, sought a declaration regarding the interpretation of sections 91 and 92 of the Equal Opportunity Act 1984. The plaintiff argued that parties are entitled to appear before the Commissioner of Equal Opportunity by an agent, other than a solicitor or counsel, at conciliation conferences and that the Commissioner has no discretion to refuse such representation. The defendant, the Commissioner of Equal Opportunity, maintained that parties who receive a notice under section 91(2) must attend the conference personally and are not entitled to be represented by an agent.

The key legal issues were whether a party compelled to appear under section 91(2) can also appear or be represented by a non-legal agent under section 92(1) and whether the common law right to be represented by an agent has been statutorily excluded. The court examined the language and structure of the Act and relevant case law to determine the proper construction of the sections.

The court found that where a party receives a notice under section 91(2), they must appear before the Commissioner personally and are not entitled to appear by an agent. However, save for those circumstances, a party is entitled to appear personally or by an agent other than a solicitor or counsel in conciliation proceedings. The Commissioner has a discretion to permit a party to be represented by a solicitor or counsel at an appearance under section 91(2) and may also permit representation by a non-legal agent in other circumstances.

The court dismissed the plaintiff's application. The question of costs was reserved for later determination.