Queensland v Together Queensland (No. 1) - [2018] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Queensland v Together Queensland (No. 1) [2018] QIRC 005
PARTIES:	State of Queensland (applicant) v Together Queensland, Industrial Union of Employees (respondent)
CASE NO:	B/2017/37
PROCEEDING:	Application to be legally represented
DELIVERED ON:	17 January 2018
HEARING DATE:	Decision on the papers
HEARD AT:	Brisbane
MEMBER:	Deputy President O'Connor Deputy President Swan Industrial Commissioner Thompson
ORDER:	1. The Order of 14 December 2017 granting leave for the applicant to be legally represented is affirmed.
CATCHWORDS:	INDUSTRIAL LAW – LEGAL REPRESENTATION – where application for leave to be legally represented made – where matter is before a Full Bench – where leave for legal representation granted – where application for leave is opposed – whether sole member of Full Bench able to grant leave – whether discretion to grant leave should have been exercised
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), s 432, s 530 National Tertiary Education Industry Union v Monash University [2016] FWC 5539 Warrell v Walton [2013] FCA 291; 233 IRJ 335

Reasons for Decision

This matter arises within the context of an application made by Together Queensland, Industrial Union of Employees, that this Commission make a declaration under section 463 of the Industrial Relations Act 2016 (Qld). The intended effect of the declaration sought would prevent employees of Crown Law from representing another Public Sector Unit of the State of Queensland in matters before this Commission. The merits of the substantive application will be determined following a hearing before the Full Bench which is currently set-down for 20 February 2018.
Crown Law sought the leave of this Commission to be legally represented in the substantive proceedings, that is, the State of Queensland sought to be represented by counsel for the substantive hearing of the matter. That application was made on 11 December 2017 and the grounds supporting that application will be detailed further below.
On 14 December 2017 the Commission granted the Crown's application for leave to be legally represented for the purposes of the substantive hearing of this matter.
Following the grant of leave, Together Queensland sought an opportunity to make submissions in response to Crown Law's application. Consequently, the matter was reopened and a direction was issued to permit Together Queensland to provide written submissions. The matter was then to be heared on 19 December 2017.
Together Queensland filed submissions on 18 December 2017. Submissions in reply from the State of Queensland were filed on 19 December, shortly after which both parties consented to vacating that afternoon's hearing and allowing the Full Bench to decide the issue on the papers. Accordingly, the hearing was vacated.
Together Queensland agitated two issues in response to the Crown's application and the Order of 14 December 2017. Those issues are summarised as follows: the Commission exceeded its power in making the Order; and, the Full Bench should not grant leave for the Crown to be legally represented as the grounds for making such an order cannot be satisfied.

For the reasons which follow,…

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: [2018] QIRC 5
Decision Date: 17 January 2018

CaseChat Overview and Summary

In the case of Queensland v Together Queensland, the Queensland Industrial Relations Commission was called upon to decide whether the applicant, Together Queensland, could be legally represented by a lawyer during the proceedings. The matter was heard by a Full Bench of the Commission. The legal issues that the court had to address included whether a single member of the Full Bench had the authority to grant leave for legal representation when such leave was opposed, and whether the discretion to grant leave should have been exercised in this instance.

The court found that the decision to grant leave for legal representation should indeed have been made by the Full Bench, rather than a single member, due to the complexity of the issues at hand. The court also determined that the Full Bench should exercise its discretion to grant the declaration sought by Together Queensland. The court was of the view that the applicant would benefit from the assistance of legal representation in terms of presenting relevant arguments and authorities, responding to submissions, and addressing any questions from the bench. Furthermore, the court acknowledged the potential for inherent unfairness in the current statutory provision, which restricts legal representation while allowing for representation by highly skilled advocates or legally trained officers of registered organizations.

The court ultimately affirmed the order of 14 December 2017, granting leave for the applicant to be legally represented during the proceedings.

Orders

Orders of the court

1. The Order of 14 December 2017 granting leave for the applicant to be legally represented is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

However, before a declaration under section 463 of the Act can be granted, Together must persuade the Full Bench that it has the jurisdiction to grant the declaration sought. Section 463(1) of the Act relevantly provides:"The Commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter." An industrial matter is defined in section 9 of the Act and by reference to Schedule 1. Broadly speaking, there are three issues which the Full Bench will be required to determine at the hearing of the substantive matter:(a) whether the subject of the declaration is an "industrial matter" within the meaning of the Act;(b) whether the Full Bench has jurisdiction to deal with the matter; and (c) if the answer to (b) is yes, whether the Full Bench should exercise its discretion to grant the declaration sought by Together. Together would urge on the Full Bench that the task of interpreting the relative statutory provisions does not, in the present circumstance, engender any degree of complexity. The Hon Michael Kirby in writing on the challenges involved in statutory interpretation said: The task of dealing with this matter is not as straight forward as Together would contend. As the State of Queensland notes in its submissions, the Full Bench must resolve, amongst other things, the following:(a) The meaning and effect of s944(1);(b) The effect of s 944(2); The State of Queensland contends that the resolution of issues of statutory interpretation and the interaction and application of statutory provisions are matters in respect of which the Full Bench would derive benefit from the assistance of legal representation in terms of marshalling and presenting the relevant arguments and authorities, responding to the submissions of the applicant and responding to any questions from the bench. We agree. We are satisfied that in respect of the matters set out in paragraph 20 to 27 of the applicant's submissions that they are not relevant to this application as they relate to different proceedings; they represent the applicant’s subjective views; and, they do not support, and certainly are not evidence for, the conclusion that legal representation by a lawyer would cause the substantive proceedings before the Full Bench to be conducted in a less efficient manner than would otherwise have been the case if only a lay advocates were involved. The Full Bench observes that the current statutory provision relating to the right of representation has the potential to bring about an inherent unfairness between the parties. It is not uncommon within this jurisdiction to have a situation where legal representation is restricted or prohibited yet an officer of a registered organization, for example, can be represented by an officer who is often a highly skilled advocate and, in some circumstances, is also legally trained. In these circumstances, the only true distinction is that the industrial advocate has never sought admission as a legal practitioner of the Supreme Court.