Master Grocers Australia Limited v National Retail Association Limited
[2014] QIRC 203
•5 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Master Grocers Australia Limited v National Retail Association Limited [2014] QIRC 203 |
PARTIES: | Master Grocers' Australia Limited v National Retail Association Limited |
CASE NO: | B/2014/56 |
PROCEEDING: | Application for legal representation |
DELIVERED ON: | 5 December 2014 |
HEARING DATE: | 31 October 2014 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. Special circumstances for legal representation met by Applicant. 2. Application granted. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR LEGAL REPRESENTATION - opposition by applicant in substantive matter - 'special circumstances' exist - legal representation granted to Master Grocers Australia Limited - application accepted |
| CASES: | Industrial Relations Act 1999, s 125, s 319, s 321 |
| APPEARANCES: | Mr G. Raptis for the Applicant. |
Decision
This is an application by Master Grocers Australia Limited ("MGA" - an organisation granted the right to be heard in the substantive matter) to be represented by a lawyer (an employee of MGA) before the Queensland Industrial Relations Commission in matter TH/2014/9, made pursuant to s 319 of the Industrial Relations Act 1990 ("the Act").
This application was made within a relatively short time period prior to the hearing in Mt Isa. The printed decision was unable to be delivered to the representatives at that time because the Commission (as constituted) was away from Brisbane on work related matters.
The representatives of the parties requested the outcome of the decision notwithstanding that the written reasons hadn't been given. For the MGA, it was essential that their representative was advised as soon as possible in the event that the matter had gone against them and they were required to find another Advocate.
The substantive matter, TH/2014/9, is an application made by the National Retail Association Limited, Union of Employers (NRA) to amend the Trading Hours Order - Non Exempt Shops Trading by Retail - State (the Order) relating to what is described in the Order as the "Mt Isa Area".
This application is opposed by the NRA.
The Australian Workers' Union of Employees, Queensland is an interested party in TH/2014/9 and sent correspondence, dated 23 October 2014 to the Commission stating that they did not oppose the application.
The substantive matter is listed for hearing in Mt Isa on 24, 25 and 26 November 2014.
Legislation
The legislation relevantly provides:
s 319 Representation of parties
(1)In proceedings, a party to the proceedings, or a person ordered
or permitted to appear or to be represented in the proceedings,
may be represented by -
(a) an agent appointed in writing; or
(b)if the party or person is an organisation - an officer or member of the organisation.
(2) The party or person may be represented by a lawyer if, and only if -
…
(ba) for proceedings before the commission not mentioned in paragraph (b) -
(i)all parties consent: or
(ii)on application by a party or person -
(A)The commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented; or
(B)The commission is otherwise satisfied that it is desirable for the party or person to be legally represented; or …
(4)For subsection (2)(ba)(ii), the commission may consider, for example, the following -
(a) the amount claimed in the proceedings, if any;
(b) the nature and complexity of the matter;
(c) the nature of the evidence to be adduced;
(d) the cross-examination likely to be required;
(e) the capacity of the party or person to represent himself or herself;
(f) the questions of law likely to arise;(g)whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.
(5)In this section -
Proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar."
NRA submissions
s 125 Notice of Appointment of agent and s 319 Representation of parties
The position of the NRA is that it has not consented to the application from MGA for Mr Sztrajt (a lawyer who is an employee of MGA) to represent MGA in the hearing before the Commission in late November 2014.
Pursuant to s 319 (1)(a) and (b) of the Act, a Notice of Appointment of Agent was filed with the Commission on 14 July 2014 appointing Mr Dorber of Employment Advocacy Solutions as agent for the MGA.
NRA says that the appointment of Mr Dorber has not been withdrawn, therefore MGA cannot seek to appoint a different Agent while Mr Dorber is the "officially appointed agent".
MGA submits that it may retain Mr Dorber as the "agent" to whom reference is made in the original application of agent, but then utilize the services of one of its employees, Mr Sztrajt in the proceedings before the Commission in Mt Isa.
In explaining this point, MGA submits:
"The NRA states that MGA has no jurisdiction to make this Application on the premise that Mr Dorber's appointment, as Agent for MGA, remains valid and operative. MGA submits that this is an erroneous contention and does not accord with any principal-agent principles which allow parameters to be established for the purposes of the relationship. Mr Dorber has been engaged as the Agent for MGA in the proceedings. The 'proceedings' it is submitted, is intended to encompass all elements associated with the Mount Isa matter, including attendance at mention and direction hearings. In this instance, MGA seeks to have Mr Dorber appear in those circumstances regarding the Mount Isa matter (e.g. directions and mentions only), but not the hearing itself on 24, 25 and 26 November 2014" [Applicant Submissions].
Section 319(1) provides the person wishing to be heard with a choice of representation. Section 319(1) is not drafted proscriptively and as MGA submits, "the use of the term 'may' indicates the element of choice."
Further, MGA states that there "are no provisions in the Act which expressly or impliedly preclude MGA from dictating the nature of the principal-agent relationship, or which classify an appointment of agent on an "all or nothing" basis". Further," there are no provisions in the Act which expressly or impliedly require a party or person to constantly file and terminate an appointment of agent whenever representation in the one proceeding fluctuates between the party or person, and the agent."
In my view, the actions taken by the MGA on this point do not offend the provisions of the Act. Mr Dorber, as agent, is to appear to perform the processing of the application (where directions and mentions are held, usually only in Brisbane) and Mr Sztrajt is to represent his employer, MGA, in the hearing before the Commission in Mt Isa.
Clearly there is no intention on MGA's part to make those positions "interchangeable". Given that MGA headquarters are based in Melbourne, it seems perfectly sensible to adopt this approach.
The primary point for consideration then relates to whether "special circumstances" exist such that MGA can utilize the services of Mr Sztrajt, who is a lawyer working for MGA in Melbourne and who is an admitted lawyer in the Supreme Court of Victoria. MGA pointed out that the representative for the NRA also has legal qualifications.
MGA says that s 319 (2)(ba)(i) of the Act addresses the elements of whether "all parties consent" or (2)(ba)(ii)(A) whether the "commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented or the Commission is otherwise satisfied that it is desirable for the party or person to be legally represented."
The primary point for consideration then relates to whether "special circumstances" exist such that MGA can utilize the services of Mr Sztrajt, who is a lawyer working for MGA in Melbourne and who is an admitted lawyer in the Supreme Court of Victoria. MGA pointed out that the representative for the NRA also has legal qualifications and practiced law in South Africa. Mr Franken for NRA did not dispute that point.
In considering what might constitute 'special circumstances', s 321(4) provides examples only of what might be considered.
MGA submits that the Commission is permitted to consider factors outside of what is referenced in s 321(4). I accept that is the case.
In submitting what it considers to be 'special circumstances' relative to this matter, MGA listed the following:
· Mr Sztrajt is the person who has undertaken the interviews and communication with all MGA witnesses and it is a matter of public interest that he be permitted to represent MGA in the scheduled hearing;
· Mr Sztrajt, through cross-examination and re-examination of witnesses, would "have a significant impact on the conduct and process of the hearing in ensuring that the veracity and fallacies of the conflicting evidence are ascertained by reference to the criteria in s 26 of the Trading (Allowable Hours) Act 1990."
· While the Commission is not bound by the formal rules of evidence and procedure, this sometimes has the potential for irrelevant facts and issues being raised.
"It is therefore submitted that a genuine correlation exists between skillful cross-examination and the elicitation of relevant facts and issues."· The matters in contention in the substantive application are of 'paramount importance to MGA members' who would be directly affected if non-exempt shops are permitted to trade with extended hours.
· MGA also points out that by permitting Mr Sztrajt to appear for the MGA, it would save that organization approximately $8,000.00 for MGA's members.
· Relative to s 319(4), MGA says it has the capacity to represent itself, and the only competent employees of MGA to adequately serve the interests of MGA's witnesses are its in-house legal practitioners. MGA states that MGA "is constrained by the provisions of the Act and ultimately has no capacity to represent itself without the consent of the Commission".
· While NRA has submitted that its objections to Mr Sztrajt's appearance is that the Commission is a 'layperson's court' and proceedings should be conducted 'with as little formality and technicality'. Significantly, MGA submits that the persons and parties appearing in the Mt Isa matter are not 'lay people' but rather 'trained and skilled advocates'.
NRA submits that what has been proffered by the MGA in support of its submission has failed to show that any 'special circumstances' occur in this matter to warrant MGA's application.
In considering all of the submissions made, I have determined that there are 'special circumstances' in this matter sufficient to ensure that Mr Sztrajt can represent MGA in the substantive hearing of the matter in Mt Isa.
One needs to take into consideration that MGA's offices are in Melbourne. MGA is not registered in Queensland as an industrial organization of employers, but says it is in the process of preparing an application to that effect. Putting that prospective application to one side, there are genuine logistical considerations required for MGA to represent its members in Queensland.
MGA has also stated that by using its own in-house legal representative, it has cut the cost to its own members by $8,000 in having Mr Sztrajt appear in the hearing. This is one factor for consideration.
Occasionally, in trading hours matters evidence is often received by a range of persons giving the same evidence. The ability to understand the nature of the requirements of the Act (specifically s 26) and to present relevant evidence to the Commission ensures that matters do not continue on unnecessarily, ensuring that the Commission has received relevant and clear evidence. This is a consideration which has been taken into account and within that context, I accept MGA's submissions.
Mr Sztrajt has had carriage of the matter as it relates to the evidence to be produced in the hearing and has liaised with all witnesses to be called by MGA. This is a factor to be considered. In my view, it would enhance the hearing of this application, with added efficiency, in having the person responsible for gathering all relevant information for MGA relying upon that knowledge in the course of the proceedings.
Further, as Mr Sztrajt is an employee of MGA, it is not the case that he is representing MGA as a Solicitor hired for the purpose of conducting the case. That is a reasonable view to hold.
It should also be added that the Commission would have accepted these submissions of MGA under both s 319 2(ba)(i) and 2(ba)(ii)(A).
For all practical purposes, MGA submits that both representatives for MGA and NRA hold similar legal qualifications and one will not be at a disadvantage vis vis the other in representing their employers perspective.
In all, I consider that 'special circumstances' exist sufficient to permit the application of MGA to be represented in the hearing of this matter in Mt Isa.
Order accordingly.
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