Gardiner v Star Track Express Pty Ltd - [2025] QIRC 121

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Gardiner v Star Track Express Pty Ltd & Ors [2025] QIRC 121
PARTIES:	Gardiner, Phillip (Complainant) v Star Track Express Pty Ltd (First Respondent) AND Robert Browning (Second Respondent) AND Fred Najm (Third Respondent)
CASE NO:	AD/2024/41
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	16 May 2025
MEMBER:	Caddie IC
HEARD AT:	On the papers
ORDER:	*Leave is granted for the First and Second Respondents to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act* 2016 (Qld).**
CATCHWORDS:	INDUSTRIAL LAW – ANTI-DISCRIMINATION LAW – Application within existing proceedings – where Respondents have applied for leave to be legally represented – where Complainant opposes the requested grant of leave – factors to be considered by the Commission in determining whether to allow representation – consideration of efficiency, complexity and fairness – consideration of the capacity of a corporate Respondent to represent itself – leave granted.
LEGISLATION AND INSTRUMENTS:	Anti - Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld) s 530
CASES:	Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132 Rintoul v State of Queensland and Ors [2014] QCAT 102 Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16 State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 State of Queensland (Queensland Health) v Hume [2022] ICQ 1 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC O79 Warrell v Walton [2013] FCA 291

Reasons for Decision

Mr Phillip Gardiner made a complaint to the Queensland Human Rights Commission against Star Track Express, Mr Robert Browning (employed by Star Track Express) and Mr Fred Najm (a former employee of Star Track Express). The complaint, which alleges various breaches of the Anti-Discrimination Act1991 (Qld) ('the AD Act'), was referred to the Queensland Industrial Relations Commission ('the Commission') on 7 June 2024 and allocated to me for case management and conciliation conferencing.
Star Track Express and Mr Robert Browning ('Star Track Express') have sought leave to be legally represented, filing the required Form 101 and Affidavit on 27 March 2025.
Mr Gardiner opposes the request in his Form 102 response filed on 23 April 2025. Mr Gardiner is currently self-represented, having had representation by Supportah Australia Pty Ltd withdrawn, and his subsequent attempts to find replacement representation being unsuccessful.[1]
[1] The Commission was left to inform Mr Gardiner that his representatives had withdrawn from the proceeding.
Mr Najm is not represented by Star Track Express or otherwise represented.
For the reasons that follow I have decided my discretion is enlivened and should be exercised in favour of granting leave for Star Track Express to be legally represented.
Relevant Principles
Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') establishes when representation may be available to parties in proceedings before the Commission (other than a Full Bench) where all parties consent,[2] or where the Commission gives leave.[3]
[2] Industrial Relations Act 2016 (Qld) s…

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: [2025] QIRC 121
Decision Date: 16 May 2025

CaseChat Overview and Summary

In the matter of Gardiner v Star Track Express Pty Ltd, the Queensland Industrial Relations Commission was tasked with deciding whether Star Track Express, the corporate respondent, should be granted leave to be legally represented in the ongoing proceedings. The applicant, Gardiner, opposed the grant of leave on the grounds that it would undermine the fairness of the proceedings. The primary issue before the Commission was whether the complexity and efficiency of the proceedings warranted the presence of legal representation, and if so, whether this would result in an unfair advantage to the respondent.

The Commission considered the nature of the jurisdictional facts under s 530(4)(a) of the Industrial Relations Act 2016 (Qld). Star Track Express argued that the complexity of the matter, compounded by multiple allegations of discrimination, sexual harassment, and victimisation, necessitated legal representation. They contended that their ability to navigate the complexities of the anti-discrimination law and present their defences effectively would be significantly enhanced by legal representation. The Commission also acknowledged the potential for voluminous material and extensive cross-examination, further justifying the need for legal assistance. While recognising the benefit of legal representation to Star Track Express, the Commission concluded that granting leave would not unjustifiably impact the fairness of the proceedings. The Commission exercised its discretion in favour of granting leave, recognising that legal representation would enable the proceedings to be managed more efficiently and fairly, without disproportionately disadvantaging the complainant.

The Commission's decision was grounded in the statutory framework, particularly s 530(4) of the Act, which outlines the criteria for granting leave to be legally represented. The Commission assessed the complexity of the matter and the potential for legal representation to assist in focusing on relevant issues. It also considered the fairness between the parties, ensuring that the grant of leave did not undermine the integrity of the proceedings. The Commission's rationale was that the inherent complexity of the case and the potential for legal representation to streamline the process justified the grant of leave.

Accordingly, the Commission granted leave for the First and Second Respondents to be legally represented in accordance with s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld). This decision allowed Star Track Express to engage legal counsel to assist in managing the complexities of the case and presenting their defences effectively.

Orders

Orders of the court

Leave is granted for the First and Second Respondents to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

Background

Background to the litigation

Davis J, President, recently explained the proper construction of s 530 of the Act on appeal in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay') as follows:[4] [4] [2024] ICQ 16.[30] Section 529(1)(a) prohibits representation of a party by a lawyer except in accordance with s 530. By s 530(1)(e), proceedings before the QIRC may involve legal representation only by leave. The bases upon which leave may be given are prescribed by s 530(4). [31] The circumstances upon which a lawyer may appear before the QIRC are governed by ss 529 and 530 of the Act. If the discretion arises under s 530(4) to give leave to a party to be represented by a lawyer, then the discretion falls to be exercised. There are no presumptions as to how the discretion is exercised. However, no executive or judicial discretion vested by an Australian statute is unfettered. The discretion is limited and circumscribed by the purposes for which it was bestowed. [32] Section 530 has a typical structure. The factual circumstances prescribed by each of ss 530(4)(a), (b) and (c) are jurisdictional facts, the establishment of which empowers the QIRC to exercise a discretion to grant leave to a party to be legally represented. [33] Subsection (4)(a) requires the QIRC be satisfied that legal representation "would enable the proceedings to be dealt with more efficiently" if lawyers represent a party. However, that assessment is limited. It is conducted "having regard to the complexity of the matter."[34] The "matter" is the controversy of the principal proceedings. The "proceedings" are the principal proceedings …[35] The task then is to: (a) identify the complexity; and (b) identify how, "having regard to the complexity," having a party represented by lawyers would "enable the proceedings to be dealt with more efficiently."[36] Each of ss 530(4)(b) and 530(4)(c) concern an assessment of fairness. However, the assessment to be conducted under each of the two subsections is quite different.[37] Section 530(4)(b) requires an assessment only of the position of the applicant for legal representation. Legal representation "may" be allowed where it would be unfair to deny it "because the party or person is unable to represent the party's or person's interests in the proceeding." Therefore, the first question is whether the party or person is "unable to represent [their] interests in the proceedings." If the answer to that question is in the affirmative, then the use of the word "because" requires a causal connection to be established between the inability of the person to represent themselves and any unfairness in not allowing representation. [38] Section 530(4)(c) requires consideration of the respective positions of the parties to the proceedings. Legal representation "may" be allowed where it would be unfair not to allow legal representation to the party. However, as with s 530(4)(a), the assessment is limited. The assessment of whether it would be "unfair" is made "having regard to fairness between party or person, and other parties or persons in the proceedings."The jurisdictional facts

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While there is no doubt being legally represented will be of benefit to Star Track Express I do not accept granting them leave impacts fairness in these proceedings to the extent that would weigh in favour of not granting leave. Conclusion Having established the jurisdictional fact set out in s 530(4)(a) of the Act, my discretion to determine whether to grant leave is enlivened. Having weighed efficiency and fairness considerations I will exercise my discretion in favour of granting leave to be legally represented. I order accordingly.

Ratio Decidendi

Legal Principle Established

Davis J, President, discussed the nature of jurisdictional facts in Sillay as follows:[5] [40] To determine the nature of the review on appeal, it is necessary to determine the nature of the jurisdictional fact. That depends on the construction of the statute. A jurisdictional fact need not be an objectively defined and identifiable fact. It may be some other matter which is identified by the statute as the catalyst to the exercise of power.[41] Typically, a jurisdictional fact may be: (a) an objectively ascertainable fact; (b) a legal stipulation; (c) a matter of opinion; or(d) a matter of judgement.[5] [2024] ICQ 16.Considerations of complexity and efficiency Star Track Express submits the matter is sufficiently complex to warrant the grant of leave.[6] They point to the alleged multiple breaches of the AD Act identified by Mr Gardiner in his SOFC as increasing the complexity of the matter, which they say is compounded by the fact there exists 'significant factual dispute and an extended time period.'[7] [6] Submissions of Star Track Express, filed 27 March 2025, [9].[7] Ibid [11]. Three key issues identified by Star Track Express as increasing the complexity of the matter are as follows:[8]By way of example, the complexity of this matter relates to: (a)the SOFC raising several serious allegations of matters which are inherently complex (including discrimination, sexual harassment and victimisation) and may attract civil penalties; (b)there being three respondents, one of which is a corporate entity, and it not being clear (in the SOFC) which respondent is alleged to have contravened the identified legislative provisions (sections 10, 119 and/or 130 of the AD Act) or any other section of the AD Act; (c)whether the First Respondent is vicariously liable for the conduct of the other Respondents (notwithstanding this is not specifically pleaded in the SOFC).[8] Ibid [12]. Star Track Express refer to the decision of the Queensland Civil and Administrative Tribunal in Rintoul v State of Queensland and Ors in which the AD Act was characterised as a 'difficult beast to master',[9] explaining that this inherent complexity results in that Tribunal 'usually' allowing parties to obtain legal representation.[10][9] [2014] QCAT 102, [14] (Stilgoe SM).[10] Submissions of Star Track Express, filed 27 March 2025, [13]. However, it is important to note that decisions granting or refusing leave for legal representation "cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted."[11][11] Warrell v Walton [2013] FCA 291, [24] (Flick J). Star Track Express overall submit that the Commission will benefit from legal representation to 'assist with the application of these complex legal principles and consideration of relevant defences'.[12][12] Submissions of Star Track Express, filed 27 March 2025, [14]. Star Track Express also state that the material in the matter is likely to be voluminous, given the number of allegations made against them, the number of witnesses listed by the Complainant and the complex nature of allegations of discrimination, harassment and victimisation. Anticipating cross-examination at some point in proceedings, Star Track Express submit that legal representation will assist in ensuring the Commission is able to focus its attention only on relevant issues of fact and law in dispute.[13] In light of the finding in Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council that experienced legal representatives are effective in identifying the 'real issues' in dispute,[14] Star Track Express argue that legal representation will assist in examination and cross-examination, and ensure the pertinent questions are posed.[15][13] Submissions of Star Track Express, filed 27 March 2025, [15]-[18].[14] [2018] QIRC 132, [12] (Bloomfield DP).[15] Submissions of Star Track Express, filed 27 March 2025, [18].