French v Bundaberg Regional Council - [2023] QIRC 214

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	French v Bundaberg Regional Council [2023] QIRC 214
PARTIES:	French, Michael (Applicant) v Bundaberg Regional Council (Respondent)
CASE NO.:	TD/2022/234
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	28 July 2023
MEMBER: HEARD AT:	Hartigan DP On the papers
ORDER:	*Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	APPLICATION FOR REINSTATEMENT- APPLICATION FOR LEGAL REPRESENTATION – where respondent has applied for leave to be legally represented – where applicant opposes application– 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
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), 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

Introduction

The Applicant, Mr Michael French, has filed an application for reinstatement, seeking, inter alia, reinstatement to his former position ('the proceeding').
The Respondent, Bundaberg Regional Council ('the Council'), has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Mr French objects to leave being granted for the Council to be legally represented.

Relevant background

Mr French commenced employment with the Council on 3 October 2005, and his employment was terminated on 7 October 2022.
By letter dated 29 August 2022, the Council put an allegation, associated with alleged disparaging and inappropriate comments made by Mr French on Facebook about the Council, to Mr French for his response.
On 7 October 2022, Mr French provided a response.

On 7 October 2022, following receipt of a response from Mr French, the Council determined to terminate Mr French's employment.
On 27 October 2022, Mr French filed an application for reinstatement in the Industrial Registry. Mr French is represented by his agent, The Australian Workers' Union of Employees, Queensland ('the AWU'), in the proceedings having filed an Appointment of Agent form on 19 April 2023.
On 21 June 2023, the Respondent filed a Form 101 Application ('Application') and supporting affidavit seeking leave to be legally represented.
On 30 June 2023, Mr French, through the AWU, filed a Form 102 Response ('Response') and supporting affidavit objecting to the Council's application for legal representation.
The Commission issued directions for the parties to file further submissions with respect to the Council's Application.

The question for my determination is whether leave should be granted for the Council to be legally represented in the proceeding.

Relevant legislation

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 -
(e)for other proceedings before the commission, other than the full bench –
(i)all parties…

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 214
Decision Date: 28 July 2023

CaseChat Overview and Summary

In the matter of French v Bundaberg Regional Council, the applicant, Mr. French, sought reinstatement to his former position following a disciplinary action by the Bundaberg Regional Council. The case was heard in the Queensland Industrial Relations Commission. The respondent, the Bundaberg Regional Council, had applied for leave to be legally represented during the proceedings, a request which Mr. French opposed on the basis of cost and the nature of the issues involved. The court was tasked with determining the appropriate factors to consider in granting such leave under section 530(4) of the Industrial Relations Act 2016 (Qld).

The primary legal issue before the court was the criteria to be applied in deciding whether the respondent, the Bundaberg Regional Council, should be granted leave to be legally represented. The court examined the nature and complexity of the dispute, the potential costs to the parties, and the public interest in ensuring that proceedings were conducted fairly and efficiently. Given the significant implications of the case for both parties, the court considered it necessary to allow the respondent to seek legal advice and representation to ensure that the proceedings were properly conducted and that all relevant legal arguments could be adequately presented.

In reaching its decision, the court noted that while the granting of legal representation could incur additional costs, the complexity of the issues at stake and the potential consequences for both the respondent and the applicant warranted the respondent's right to seek legal advice. The court balanced these considerations against the need to keep the proceedings manageable and cost-effective. The court concluded that the application for legal representation should be granted, as the potential benefits of having legal counsel outweighed the concerns about additional costs. The court determined that the circumstances of the case justified allowing the respondent to be legally represented in the proceedings.

The court granted leave for the Bundaberg Regional Council to be legally represented in accordance with section 530(4) of the Industrial Relations Act 2016 (Qld). This decision ensures that the respondent has the opportunity to present its case effectively while also considering the interests of the applicant and the efficient administration of justice.

Orders

Orders of the court

Leave is granted for the Respondent to be legally represented pursuant to s 530(4) 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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