Lelliott v State of Queensland (Queensland Corrective Services)
[2022] QIRC 466
•1 December 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lelliott v State of Queensland (Queensland Corrective Services) [2022] QIRC 466 |
PARTIES: | Lelliott, Jayson v |
CASE NO: | TD/2022/236 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 1 December 2022 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: | The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - APPLICATION FOR LEGAL REPRESENTATION - where respondent has applied for leave to be legally represented - where applicant opposes application - where no requirement for respondent to seek leave - application dismissed. |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 530 |
Reasons for Decision
Introduction
The Applicant, Mr Jayson Lelliott, has filed an application for reinstatement, seeking, inter alia, reinstatement to his former position ('the proceeding').
The Respondent, the State of Queensland (Queensland Corrective Services) ('the Department'), has applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Mr Lelliott objects to leave being granted for the Respondent to be legally represented.
Mr Lelliott commenced employment with the Department on 3 February 2022.
On 10 October 2022, following a show cause process, the Department determined to terminate Mr Lelliott's employment.
On 28 October 2022, Mt Lelliott filed an application for reinstatement in the Industrial Registry.
On 15 November 2022, Mr Lelliott advised the Industrial Registry that he objected to the Department being legally represented. The Commission issued directions for the parties to file submissions in response to this.
Relevantly, the orders sought by the Department are as follows:
(a) an order pursuant to s 530(5)(a) of the IR Act, that Crown Law, as of right, may legally represent the Respondent as Crown Lawyers are employees or officers of the State in the substantive proceedings TD/2022/236; or
(b) in the alternative, leave is granted for the Respondent in the substantive proceedings to be legally represented by Crown Law.
On 21 November 2022, Mr Lelliott filed brief written submissions in response to the application as follows:
…
I am representing myself as this is the only recourse, I have available to me after having my professional work record defamed.
I don't think a lawyer is necessary as I have not denied any of the Directions from the Commissioner.
…The question for my determination is whether it is necessary to grant leave for the Department to be legally represented in the proceedings.
Relevant legislation
Section 530 of the IR Act relevantly provides for legal representation in the following terms:
530 Legal representation
…
(5)For this section, a party or person is taken not to be represented by a lawyer if the lawyer is -
(a) an employee or officer of the party or person; or
(b)an employee or officer of an entity representing the party or person if the entity is -
(i) an organisation; or
(ii) an association of employers that is not registered under chapter 12; or
(iii) a State peak council.
Application of s 530(5)(a) of the IR Act
At this stage of the proceedings, the Department only seeks to be represented by Crown Law.[1] Accordingly, the Department relies on s 530(5)(a) of the IR Act to assert that the Department may, as of right, be represented by a lawyer employed by Crown Law.
[1] Relevantly the Respondent does not seek to be represented by an external lawyer, for instance, a barrister. In addition to Crown Law at this stage of the proceedings.
Section 530(5) of the IR Act provides that where a lawyer is an employee or officer of a party, that party may be represented by the lawyer and the restrictions in the preceding sub-sections do not apply.
The lawyers engaged by Crown Law, a business unit of the Department of Justice and Attorney-General, are employees of the State of Queensland and consequently, pursuant to s 530(5) of the IR Act, the lawyers at Crown Law are entitled to appear in the proceeding for the State of Queensland.
In respect of the representation by Crown Law, there is no requirement for the Department to seek leave of the Commission to be represented by Crown Law, by the operation of s 530(5)(a) of the IR Act.
The Department properly filed a Form 34 - Lawyer's notice of address for service on 10 November 2022.
Accordingly, I will order that the application be dismissed on the basis that it is not necessary for the Department to seek leave of the Commission to be represented by Crown Law.
Order
The application is dismissed.
0
0
0