The Commission can only give permission for a person to be represented by a lawyer or paid agent in a matter before the Commission if:
- it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (complexity)
- it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively (effectiveness), or
- it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter (fairness).
Each of these are separate reasons why the Commission might be satisfied that permission should be granted for a person to be represented. If the Commission is satisfied that permission should be granted for one of these reasons, it is not necessary to also consider the other reasons given for seeking permission. Granting permission is discretionary and even if one of the reasons applies, permission may not be granted.
Assessing whether permission should be granted under s.596 involves a 2-step process:
- Assess whether one or more of the criteria in s.596(2) is satisfied. This involves making of an evaluative judgment akin to the exercise of a discretion.
- If the first step is satisfied, consider whether in all of the circumstances, the discretion should be exercised in favour of the party seeking permission.
In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.
The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case.
The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’. In some cases it may not be fair and just for one party to be represented by a lawyer or paid agent when the other is not.
A party might be required to represent themselves if the Commission is not satisfied permission should be granted for a lawyer or paid agent to appear for them.
Where permission is required, the Commission must decide whether to grant permission before a party can be represented by a lawyer or paid agent, even if the other party has not objected to representation.
Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation or during argument about jurisdictional issues.