Clements v Phillips (No. 2) - [2023] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Clements v Phillips (No. 2) [2023] QIRC 095
PARTIES:	Clements, Chandra Anne (Complainant) v Phillips, Darren (Respondent)
CASE NO.:	AD/2021/67
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	30 March 2023
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	*Leave is granted for the Respondent to be legally represented pursuant to s 530(4)(a) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – application for legal representation – where first and second respondents have applied for leave to be legally represented – where complainant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – efficiency of proceedings – where leave is granted for legal representation
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld), s 530 Industrial Relations (Tribunals) Rules 2011, r 41
CASES:	Clements v Philipps [2022] QIRC 052 E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 Porche v State of Queensland (Department of Education) [2020] QIRC 204 State of Queensland (Department of the 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

Reasons for Decision

Introduction

On 24 December 2021, the Queensland Human Rights Commission ('the QHRC') referred a complaint to the Queensland Industrial Relations Commission ('the Commission') filed by Ms Chandra Anne Clements ('the Complainant'), alleging discrimination under the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
On 2 December 2022, the Respondent filed an application in existing proceedings seeking leave to be legally represented, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 (Qld) ('the IR Act') and an Order to join parties made pursuant to r 41 of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules') following a settlement deed dated 16 June 2021.
The Complainant objects to the Respondent being granted leave to be legally represented.
This decision is the determination of whether leave should be granted for the Respondent to be legally represented in the proceedings.
Legislative framework
Section 530 of the IR Act relevantly provides for legal representation as follows:
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—
…
(c)for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QIRC 95
Decision Date: 30 March 2023

CaseChat Overview and Summary

The Clements v Phillips (No. 2) case involves an application for legal representation, with the first and second respondents seeking leave to be legally represented. The complainant opposes this application. The legal issues revolve around the factors the Commission must consider in deciding whether to allow legal representation, particularly the efficiency of the proceedings. The court examined these factors in light of the relevant legislation, specifically section 530(4)(a) of the Industrial Relations Act 2016 (Qld).

In determining the application, the court weighed the efficiency of the proceedings, which included considerations of the complexity of the case, the need for legal expertise, and the potential impact on the complainant. Given these factors, the court concluded that allowing the respondents to be legally represented would not unduly delay the proceedings and would, in fact, enhance their efficiency. The court found that the presence of legal representation would aid in the fair and expeditious resolution of the dispute.

The court granted leave for the respondents to be legally represented, recognising that this would contribute to the overall efficiency of the proceedings. This decision ensures that the parties can adequately present their cases and that the Commission can manage the case effectively. The granting of legal representation is a significant step in the proceedings, facilitating a more thorough and balanced examination of the issues at hand.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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