Allen v Newlands Coal Pty Ltd and See

[2013] QCAT 398

CITATION: Allen v Newlands Coal Pty Ltd & See [2013] QCAT 398

APPLICANT	Michael Sean Allen
v
FIRST RESPONDENT:	Newlands Coal Pty Ltd
SECOND RESPONDENT:	Justin See

APPLICATION NUMBER: ADL034-13

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 23 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave is not granted to the respondents to be legally represented up to and including the compulsory conference.

CATCHWORDS:

ANTI-DISCRIMINATION – where leave for legal representation sought – where no complex questions of fact – where one party objected to legal representation

Queensland Civil and Administrative Tribunal Act 2009 s 43

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Allen has complained that his employer has refused to give him an opportunity to be trained to operate some specific equipment on the basis that he was too old. Mr Allen complained that the production superintendent had said that he wanted younger workers to operate that type of equipment.  Mr Allen also complained that he has been victimised by the production superintendent as a result of making a complaint about the refusal to train him because he was too old.

2. The complaint has been referred to QCAT for determination based on alleged breaches of the Anti-Discrimination Act 1991.  Parties at QCAT are expected to represent themselves but leave for parties to be legally represented can be given in the interests of justice.[1]   The respondents applied for leave to be legally represented in this proceeding.  Mr Allen opposed leave being granted. 

   [1] QCAT Act s 43.

3. The respondents submitted that considerations of procedural fairness should warrant an order being made for their legal representation.  However there is nothing intrinsically unfair in expecting the parties to represent themselves in a proceeding.  The facts are not complex in this case.  The respondents dispute the facts alleged by Mr Allen but that factor does not render the facts themselves to be complex.  If Mr Allen cannot establish that the facts were as he alleges, then his case wholly fails.  The documents in the referred complaint do not reveal any witness to the conversation on which Mr Allen rests his allegations of unlawful discriminatory conduct.  The complaint of victimisation is based on a refusal to approve two days leave where it has been alleged by the respondents that insufficient documentation was provided by Mr Allen with his request for leave.  

4. While the legal questions to be determined in complaints made under the Anti-discrimination Act 1991 can be complex, the interests of justice will not inevitably require a party to be legally represented in all cases. The submissions made by the respondents focus on the complexities of a hearing. However, the parties are not at the hearing stage of this proceeding. At this stage of the proceeding, directions have been made for the parties to take part in a compulsory conference under section 67 of the QCAT Act.

5. The parties will not be required to give evidence at the conference or to articulate any legal argument.  Rather the parties will be required, with the assistance of the member conducting the conference, to identity the issues in dispute and to endeavour to resolve those issues and the dispute itself.   The parties will have first hand knowledge of the issues and will be in the best position to take part fully in the conference.  The parties will have the ability to utilise practical measures to try to resolve the dispute. 

6. For these reasons, I reject the submission that matters of procedural fairness should lead to a conclusion that the interests of justice require the respondents to be legally represented at the conference stage.  That submission may well support an application for legal representation for the final hearing but is not compelling at this initial stage of the proceeding in this case up to and including the compulsory conference.

7. The respondents also submitted that granting leave for legal representation would assist the tribunal to achieve its statutory objects to deal with matters in a manner that is accessible, fair, just, economical, informal and quick.  In cases involving complex questions of fact or law to be determined, it can be of assistance for legal argument to help refine the issues for the tribunal.   

8. However this is not such a case.  The legal issues are able to be readily identified from the complaint and contentions and will rise and fall depending on how the facts of the complaint are established.  The complaint of discrimination and victimisation can only be proven if Mr Allen can satisfy the tribunal that the conversation took place as alleged and his leave application was refused for the reasons he contends.  The conference will provide an opportunity for the parties to give consideration to the risks involved in allowing this complaint to remain unresolved and to the practical ways in which those risks can be addressed before the tribunal makes its own decision on the complaint.    

9. Mr Allen has told QCAT that he cannot afford a lawyer to represent him in this matter.  Mr Allen opposed the granting of leave to the respondents to be legally represented as he submitted that the complaint is straightforward.  Mr Allen appears to appreciate that the outcome about his complaint of age discrimination depends on what findings are made about the conversation between him and Mr See.  It is clear that he wants to have the opportunity to discuss the matters he has raised directly with Mr See and with the appropriate persons from the employer company. 

10. I find that there was no reasonable requirement revealed by the submissions made in support of the application for legal representation for other persons to be directly involved in the discussions between the parties at the conference.  I was satisfied that the interests of justice in this case come out in favour of the parties actively and directly participating in the conference. 

11. I am satisfied that the general position that parties are to represent themselves at QCAT should not be departed from in this case, at least until the parties have genuinely participated in the compulsory conference.  I refused leave for the respondents to be legally represented up to and including the compulsory conference.  The respondents can make a further application for leave for legal representation in the event that the conference fails to resolve the complaint and the complaint proceeds to the hearing stage.