Abdelkadiri v IKEA Limited

[2010] QCAT 367

CITATION: Abdelkadiri v IKEA Limited and others [2010] QCAT 367

PARTIES: Applicant	Nourddine ABDELKADIRI
v
Respondents	IKEA Limited, Louise ALLEN, Jason BARTON, Brett JONES

APPLICATION NUMBER:   ADL016-09

MATTER TYPE: Anti-Discrimination Matters

HEARING DATE:     19 July 2010

HEARD AT:  Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 4 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Leave is granted to the first respondent, second respondent and third respondent to be legally represented in the proceeding.

CATCHWORDS :  LEGAL REPRESENTATION – leave sought by parties in anti-discrimination claim – section 43 of the Queensland Civil and Administrative Tribunal Act 2009.

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. Nourddine Abdelkadiri lodged a complaint under the Anti-Discrimination Act 1991 against the respondents in May 2008.  The complaint consisted of allegations that the claimant was the subject of conduct in the workplace that amounted to discrimination on the basis of an impairment and on the basis of race.  The complaint alleges that the conduct constituted both direct and indirect discrimination.

2. The first, second and third respondents have applied for leave to be legally represented in the proceeding and written submissions were filed in support of the application. It is stated in section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) that parties in proceedings in this Tribunal are expected to represent themselves unless the interests of justice require otherwise.

3. Section 43 where relevant provides as follows:

   (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

   (2)  In a proceeding, a party—

   (a)   may appear without representation; or

   (b)   may be represented by someone else if—

   (i) the party is a child or a person with impaired capacity; or

   (ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

   (iii)an enabling Act that is an Act, or the rules, states the person may be represented; or

   (iv)the party has been given leave by the tribunal to be represented.

   (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

   (a) the party is a State agency;

   (b) the proceeding is likely to involve complex questions of fact or law;

   (c) another party to the proceeding is represented in the proceeding;

   (d) all of the parties have agreed to the party being represented in the proceeding……..

4. The respondents submitted in support of their application for leave to be represented that an analysis of the case authorities decided under section 187 of the Anti-Discrimination Act 1991 revealed a prevalent approach of leave being granted for representation by the former Anti-Discrimination Tribunal. Section 187 was repealed as from 1 December 2009 and determinations about legal representation in the Queensland Civil and Administrative Tribunal must be made in accordance with section 43.

5. Section 43 departed from the position set out in section 187 of the Anti-Discrimination Act 1991 which permitted parties to be legally represented before the former Anti-Discrimination Tribunal with the leave of the Tribunal. The repealed section of the Anti-Discrimination Act 1991 was fundamentally different from section 43 which prevents a party from being represented in any case where the Tribunal does not consider that the interests of justice require that party to have representation. The case authorities cited in the submissions do not provide assistance when the Tribunal is determining an application made under section 43.

6. The respondents have submitted that the proceeding involves complex questions of fact and law.  A reading of the documents contained in the referral from the Anti-Discrimination Commission reveals that the complaint covers a variety of conduct over an extended period of time (15 November 2006 to 25 May 2008), giving rise to multiple disparate issues about impairment, occupational health and safety, workplace performance, the effect of a deed of release and discharge and the role of employers with respect to working visa applications. 

7. Mr Abdelkadiri has contended that he has been subjected to both direct discrimination and indirect discrimination as well as to racial and religious vilification. 

8. The Tribunal agrees with the submissions of the respondents that this proceeding involves complex questions of both fact and law.  In view of the number of complex factual and legal issues involved in this case, the Tribunal considers that the presence of legal representation for the parties will assist the Tribunal to reach an outcome that is fair, just and economical as required by the objects of the Act. 

9. The Tribunal has been satisfied that it is in the interests of justice that leave is granted for the first respondent, second respondent and third respondent to be legally represented in the proceeding.