Crown Law in Bananaland cannot act in industrial dispute against two of its employees … Acting as a self-represented litigant against its own staff … Everything happy at Crown Law … Lack of systems to handle conflict … Seb Tonkin reports 

IN what has become a particularly thorny workplace dispute, the Queensland Industrial Relations Commission has barred Queensland’s Crown Law from acting against two of its own lawyers, citing concerns about public confidence in the administration of justice.

Jeremy Simon Weston and his supervisor, Siobhan Maree Parer, are suing the Department of Justice and Attorney General under the Queensland Industrial Relations Act. Both are employed in Crown Law, a “business unit” of the department. 

The dispute began in February 2015, when Helen Freemantle, a Deputy Crown Solicitor, made defamatory comments about Weston at a meeting (Freemantle later gave Weston a written apology). Weston and Parer lodged formal grievances over the comments and other administrative actions taken by Freemantle but, in June, before their grievances were resolved, each was served with a show cause notice and suspended with pay.

The allegations in the show cause notices flowed from a report compiled by Queensland barrister Joanne Sorbello.

Weston and Parer challenged their suspensions in the commission under the IR Act. Following a conference, and one day before Weston was due to respond to the show cause notice, he and Parer lodged further applications seeking declarations that Sorbello’s report, the show cause letter and the suspension were procedurally unfair or otherwise unjust. 

In Weston and Parer v State of Queensland (Department of Justice and Attorney-General), Industrial Commissioner Glenys Fisher dealt with applications:

• from the department, seeking to have the applications for declarations dismissed pursuant to s.331(b) of the IR Act as contrary to the public interest; and
• from Weston and Parer’s lawyer Edwin Tse (Susan Moriarty & Associates), seeking the joinder of all four proceedings, and an order that Crown solicitor Fiona Black, and Crown Law generally, cease acting for the department.

The department was successful in having Parer’s application for declarations dismissed, based on a jurisdictional argument raised only at the hearing. Sections 216 and 217 of the Queensland Public Service Act prevent senior officers (like Parer) taking certain disputes to the commission, and Commissioner Fisher found that Parer’s application was outside the commission’s jurisdiction. The commissioner did not discuss the impact of this finding on Parer’s primary application.

In relation to Weston (who was insufficiently senior for sections 216 and 217 to apply), Commissioner Fisher assessed the department’s remaining arguments that:

• natural justice is not required for a suspension with pay, or for the issue of a show cause notice;
• Weston had implicitly waived his right to object to the involvement of Joanne Sorbello; and
• there had been an excessive delay in Weston filing his application, constituting an abuse of process.

Ultimately, the commissioner stated that, despite delays in Weston bringing his case, there were real questions to be tried about the department’s decision-making process that went beyond simple natural justice considerations. Though the application survived, Weston was ordered to define and revise its terms.

The power to prevent lawyers acting is exceptional and usually exercised with caution. Nonetheless, Fisher found there were compelling reasons to prevent Crown Law acting against Weston and Parer.

The commissioner referred to the “very real potential” for conflicts of interest should Crown Law act essentially as a self-represented litigant against its own employees, and the lack of evidence of any systems to handle those conflicts.

Fiona Black, the solicitor on the record, was junior to Freemantle, and to other Crown staff likely to be called to give evidence. The seriousness of the allegations against senior staff, and the fact that at least one other Crown Law solicitor had provided an affidavit in support of Weston, led to concerns about Crown Law’s independence and the potential for significant internal staff disharmony. 

There is a public interest in allowing a litigant its choice of lawyer, and here the department has an obligation to act as a model litigant. Public confidence in the administration of justice could only be satisfied if the department was represented by independent solicitors. 

Weston and Parer’s substantive applications are yet to be heard.