Van Velzen v Brisbane City Council - [2023] QIRC 102

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Van Velzen v Brisbane City Council [2023] QIRC 102
PARTIES:	Van Velzen, Peter (Applicant) v Brisbane City Council (Respondent)
CASE NO:	GP/2023/2
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	4 April 2023
MEMBER: HEARD AT:	Hartigan DP Brisbane
ORDER:	*Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	GENERAL PROTECTIONS - APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 2016 – whether Respondent can be legally represented under s 530 of the Industrial Relations Act 2016 – where application opposed – factors to be considered by the Commission in determining whether to allow legal representation – Respondent granted leave to be legally represented
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), s 530 Mario v Workers' Compensation Regulator [2021] QIRC 406 State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

Reasons for Decision

Introduction

On 14 March 2023, the Respondent, Brisbane City Council ('the Council') applied for orders that it be granted leave to be legally represented pursuant to s 530(1)(e)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
The Applicant, Mr Peter Van Velzen, applied for a Bus Driver role with the Council in or about November 2020. Following an initial assessment of his suitability for the role, the Council advised the Applicant that he was unsuccessful in his application.
On 30 January 2023, the Applicant filed a general protections application (GP/2023/2) in the Industrial Registry claiming that the Council took adverse action against him as a prospective employee. In his application, the Applicant seeks the following:
(a) to be employed by Council as a bus driver; and
(b) to be compensated by Council for discriminating against him on the basis of his impairment.
On 14 March 2023, the Applicant was requested to advise the Industrial Registry whether he consented or objected to the Council being legally represented in the matter. The Industrial Registry did not receive any correspondence in reply from the Applicant.
The parties were advised on 17 March 2023, that the Commission would hear from the parties at the commencement of the conference on 20 March 2023 with respect to the Council's application for legal representation.

On 20 March 2023, submissions from the parties were heard in relation to the application for legal representation filed by the Council.
The question for my determination is whether leave should be granted for the Council to be legally represented in the proceedings.
After considering the application and supporting affidavit filed on behalf of the Council and after hearing the oral submissions of the Council and Mr Van Velzen, I granted leave for the Council to be legally represented during the course of the conference on 20 March 2023.
These are the reasons for that decision.

Relevant legislation

Section 530 of the IR Act provides for legal representation in the following terms:
530…

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: [2023] QIRC 102
Decision Date: 4 April 2023

CaseChat Overview and Summary

The matter of Van Velzen v Brisbane City Council involved an application by the Respondent, Brisbane City Council, to be legally represented in proceedings under the Industrial Relations Act 2016. The Applicant, Mr Van Velzen, opposed the application. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), which has jurisdiction over such disputes. The primary issue before QCAT was whether the Brisbane City Council was entitled to be legally represented in the proceedings under section 530 of the Act. The central consideration was the nature and complexity of the dispute, the ability of the council to effectively present its case, and the fairness to the opposing party.

QCAT considered the relevant statutory provisions and case law to determine the appropriate factors to assess in granting legal representation. The tribunal examined the complexity and importance of the issues, the council’s capacity to adequately represent itself, and the potential impact on the proceedings' fairness if legal representation were permitted. After weighing these factors, QCAT concluded that the council could benefit from legal representation to navigate the complexities of the case effectively. The tribunal found that granting legal representation would not unfairly prejudice the Applicant and would facilitate a fair and efficient resolution of the dispute.

In light of the analysis, QCAT exercised its discretion under section 530(4) of the Industrial Relations Act 2016 to grant the Respondent leave to be legally represented. The tribunal's decision recognised the council's need for expert legal assistance to adequately present its case and ensure a fair hearing. The decision underscores the importance of considering the specific circumstances of each case when determining the appropriateness of legal representation in proceedings under the Act.

Orders

Orders of the court

Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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