Hartley v Flinders Shire Council - [2025] QIRC 266

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Hartley v Flinders Shire Council [2025] QIRC 266
PARTIES:	Hartley, Stephen (Applicant) v Flinders Shire Council (Respondent)
CASE NO:	TD/2025/82
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	7 October 2025
MEMBER:	Caddie IC
ORDER:	*Leave is granted for the Respondent to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION FOR LEGAL REPRESENTATION – where Applicant within substantive proceedings filed a claim for unfair dismissal – where Respondent in substantive proceedings seeks to be legally represented – where Applicant in substantive proceedings opposes the grant of legal representation – consideration of the exercise of discretion – considerations of efficiency and fairness between parties – leave granted for the Respondent to be legally represented.
LEGISLATION AND INSTRUMENTS:	Industrial Relations Act 2016 (Qld) ss 529, 530
CASES:	Edwards v Litchfield Shire [2019] FWC 5386 Mutonhori v Mount Isa City Council [2025] ICQ 1 Sillay v State of Queensland (Queensland Corrective Services) [2024] ICQ 16 State of Queensland (Department of the 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 079 Warrell v Walton [2013] FCA 291

Reasons for Decision

Background

Mr Stephen Hartley ('Mr Hartley') lodged an unfair dismissal application with the Queensland Industrial Relations Commission ('the Commission') on 29 July 2025. The application was allocated to me for the purpose of conciliation.
Flinders Shire Council (the Respondent in substantive proceedings) sought leave to be legally represented, filing the required Form 101 and Affidavit on 14 August 2025.
Mr Hartley opposes the request of Flinders Shire Council to be legally represented in the proceedings. Mr Hartley is currently self-represented.
Relevant Principles
Section 530 of the Industrial Relations Act 2016 (Qld) ('the Act') sets out when legal representation is available to parties in proceedings before the Commission (other than a Full Bench) where all parties consent, or where the Commission exercises discretion to grant leave.
Section 530(4) of the Act establishes as follows (emphasis added):
(4) An industrial tribunal may give leave under subsection (1) only if —
(a)it would enable the proceeding 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 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 organisation or another person with experience in…

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 266
Decision Date: 7 October 2025

CaseChat Overview and Summary

In the matter of Hartley v Flinders Shire Council, the Flinders Shire Council sought leave to be legally represented in proceedings before the Queensland Industrial Relations Commission (QIRC). The Applicant, Mr Hartley, opposed this application on the basis that legal representation would unduly prejudice him and unnecessarily increase the cost of the proceedings. The central legal issues were whether the proceedings would be more efficiently dealt with if the Respondent were legally represented, and whether it would be unfair to either party to deny legal representation. The court considered the statutory framework provided by the Industrial Relations Act 2016 (Qld), which sets out the circumstances under which leave for legal representation may be granted. The court examined the complexity of the matter and the potential benefits of legal representation in terms of efficiency and fairness between the parties.

The court concluded that the complexity of the proceedings, which involved a claim of unfair dismissal and allegations of procedural unfairness, justified the need for legal representation. The court found that legal representation would enable the proceedings to be handled more efficiently, particularly in identifying and focusing on the relevant issues and streamlining the affidavit and trial material. Additionally, the court assessed the fairness between the parties and determined that granting leave for legal representation would not unfairly prejudice the Applicant. The court weighed these considerations and determined that the benefits of legal representation outweighed any potential prejudice to the Applicant. Accordingly, the court granted leave for the Respondent to be legally represented.

The court's reasoning was based on a detailed analysis of the statutory provisions and relevant case law, particularly the decision in Mutonhori v Mount Isa City Council, which highlighted the importance of considering both efficiency and fairness in determining whether to grant leave for legal representation. The court found that the complexity of the proceedings and the potential benefits of legal representation justified the exercise of its discretion in favour of granting leave. The court's decision was grounded in a balanced consideration of the statutory objectives and the practical implications for the proceedings.

LEAVE is granted for the Respondent to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

Orders

Orders of the court

Leave is granted for the Respondent 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, examined the construction of s 530 of the Act on appeal in Sillay v State of Queensland (Queensland Corrective Services) ('Sillay') as follows:[1] [1] [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."Jurisdictional facts

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not accept that granting leave for the Respondent to be legally represented impacts fairness 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 the Respondent to be legally represented. I order accordingly.OrderLeave is granted for the Respondent to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld).

Ratio Decidendi

Legal Principle Established

DP Hartigan in Mutonhori v Mount Isa City Council ('Mutonhori') explained that s 530(4)(a) requires the following questions to be considered:[7] (a) identify the complexity of the "matter", being the controversy subject of the principal proceedings; and (b) identify how the, "having regard to the complexity", having a party represented by lawyers would "enable the proceedings to be dealt with more efficiently". [7] [2025] ICQ 1, [24]; Submissions of the Respondent, filed 4 September 2025, 1.Consideration of this matter The circumstances surrounding the dismissal of Mr Hartley are identified by Flinders Shire Council as increasing the complexity of the proceeding. They say that Mr Hartley was dismissed pursuant to substantiation of two allegations of discriminatory conduct against fellow personnel. Flinders Shire Council characterise Mr Hartley's claim as one that admits the impugned conduct but contends the dismissal itself was rendered unfair by a lack of procedural fairness and was overall unreasonable in the circumstances.[8][8] Submissions of the Respondent, filed 4 September 2025, 2. Flinders Shire Council submit that the nature of the claim for unfair dismissal is rendered 'substantially' more complex because of the allegations raised by Mr Hartley regarding procedural fairness, due process and the reasonableness of the termination decision.[9][9] Submissions of the Respondent, filed 4 September 2025, 2. Mr Hartley submits that the correspondence terminating the employment 'contained a comprehensive reference' to the various Acts the impugned conduct was said to breach. Mr Hartley says that:…the respondent having crafted [the] letter of termination is more than competent to be able to internally represent the interests of Council in these proceedings without requiring the assistance of legal representation.[10][10] Submissions of the Applicant, filed 11 September 2025, 1-2. Flinders Shire Council draw on Mutonhori and characterise the meaning of 'efficiency' as follows:[11] …having the proceedings dealt with expeditiously and effectively, without undue or excessive energy and resources, and with requisite knowledge and skill. [11] Submissions of the Respondent, filed 4 September 2025, 3, [11]. Flinders Shire Council further submit that legal practitioners will assist in the efficient conduct of proceedings as they will: identify and focus on the relevant facts and matters, (thereby narrowing issues in dispute), increase the likelihood of an effective conciliation process and streamline affidavit and trial material.[12] In support of this contention, I note that in Sillay, Davis J, President, referred to the comments of VP O'Connor in Dawson:[13] ...(a) generally, the skills and expertise of legal practitioners will be a help rather than a hindrance;(b) legal representatives have a paramount duty to the Court; and(c) The presence of lawyers generally ensures that a case will be run more efficiently and focussed on the relevant issues....[12] Submissions of the Respondent, filed 4 September 2025, 3, [12].[13] [2024] ICQ 16, [20]-[21] (Davis J, President) citing State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118.