Baldwin v Robinson & Cooroy Golf Club Inc

[2010] QCAT 118

CITATION: Baldwin v Robinson & Cooroy Golf Club Inc [2010] QCAT 118

PARTIES:	Arthur BALDWIN
v
Brian ROBINSON and Cooroy Golf Club Inc.

APPLICATION NUMBER:            ADC035-09              

MATTER TYPE:

HEARING DATE:   14 April 2010

HEARD AT:   Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON:   14 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application to amend complaint dismissed and leave granted for parties to be legally represented

CATCHWORDS :  Amendment sought to complaint – adding new grounds of complaint – section 178 of the Anti-Discrimination Act 1991 – section 43 of the Queensland Civil and Administrative Tribunal Act 2009 – representation sought by a person who is not an Australian legal practitioner

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Applications for leave to be represented

1. This complaint arises out of Mr Baldwin’s employment with Cooroy Golf Club.  In December 2008 Mr Baldwin commenced a complaint in the Anti-Discrimination Commission Queensland alleging he had been the subject of direct discrimination on the basis of impairment in his work.  That complaint was referred to the Anti-Discrimination Tribunal on 25 September 2009.
2. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Anti-Discrimination Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.
3. Under section 256 of the Queensland Civil and Administrative Tribunal Act 2009, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal.  Under section 271 of the Act, the Tribunal has the functions of the former Tribunal and can make a decision that the former Tribunal could have made in relation to the proceeding.
4. The enabling Act in this case, the Anti-Discrimination Act 1991 provided prior 1 December 2009 that a party could be represented in Tribunal proceedings by a solicitor, counsel or an agent with the leave of the Tribunal.  The Queensland Civil and Administrative Tribunal Act 2009 also contains provisions for a party in the proceeding to be represented with the leave of the Tribunal.    
5. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009  (the Act) 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—

(c)the party is a State agency;

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

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

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

(4) A party can not be represented in a proceeding by a person—

(a) who, under rules made under section 224(3), is

disqualified from being a representative of a party to a

proceeding; or

(b) who is not an Australian legal practitioner or

government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the

party.

(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—

(a) the party is a corporation; or

(b) the tribunal has asked for the certificate.

(6) The tribunal may appoint a person to represent an unrepresented party.

(7) In this section—

Australian legal practitioner see the Legal Profession Act 2007.

government legal officer see the Legal Profession Act 2007.

6. It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right.  In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
7. Both the applicant and the respondents have sought leave to be represented in this proceeding.  Both parties have submitted that there are numerous factual issues in dispute mainly around the performance by Mr Baldwin of his duties of employment and around the termination of his employment.  Both parties submit that there are complex legal issues in dispute around the allegation of discrimination.
8. Both parties submit that they would not have the skills to represent themselves in this proceeding.      

Conclusion on application to be represented

9. From a reading of the contentions lodged by the applicant and the respondents, it would appear that the facts in this complaint are not complex. The parties have first hand knowledge of the facts underlying this complaint. It is accepted that the parties are not experienced in presenting cases before the Tribunal and do not have legal qualifications or experience in arguing issues arising from the Anti-Discrimination Act 1991.   
10. Generally, a detailed knowledge of the law or experience in legal proceedings is not essential for persons presenting cases in the Tribunal.  Parties regularly present their own cases in the Tribunal over a range of jurisdictions from minor civil disputes, guardianship, reviews of administrative decisions to domestic building disputes.  Parties need to know the evidence required to support their claim and must be wiling to contribute their time and energy to reach a resolution of that claim. 
11. Parties do not need to have a background in legal procedure as the Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record and must act with as little formality and technicality that a proper consideration of the matters before the tribunal permit.  The Tribunal has the responsibility to act fairly and according to the substantive merits of the case.     
12. The Tribunal might not have been persuaded that the interests of justice required the parties to have legal representation at this stage of this case but for the wording in the contentions filed on behalf of Mr Baldwin.  The contentions purport to establish a case of direct and indirect discrimination and victimisation. Mr Baldwin is likely to encounter difficulties with the law if he were to proceed with an indirect discrimination claim in the terms contended. 
13. The Tribunal considers that the interests of justice require the Tribunal to grant leave for Mr Baldwin to be legally represented so that he has the opportunity to refine the grounds of his complaint at a stage before a compulsory conference is held.  At such a conference the parties will be expected to identify what issues can go forward for determination by the Tribunal at hearing.   
14. The Tribunal has been asked to grant leave to Mr Baldwin to be represented by an employment and industrial relations advocate as well as by a legal representative. Under section 43(4) of the Act a person cannot be represented in a proceeding by a person who is not an Australian Legal Practitioner or government legal officer unless the Tribunal is satisfied that the person is an appropriate person to represent the party.
15. A complaint made under the Anti-Discrimination Act 1991 is not a claim that is determined in the industrial relations system.  The submissions do not disclose what knowledge or expertise the industrial relations advocate has in advocating for a person in this type of complaint before the Tribunal or the former Tribunal.   The documents filed in the Tribunal to date do not suggest a ready familiarity with the anti-discrimination legislation. If Mr Baldwin is to be represented in his anti-discrimination complaint, legal representation is appropriate in this case.  The Tribunal is not satisfied that an industrial advocate is an appropriate person to represent Mr Baldwin in this complaint. 
16. In view of the decision to grant leave to Mr Baldwin to be legally represented, it is reasonable to grant leave to the respondents to be legally represented in this proceeding by a lawyer instructed by Clubs Queensland or by another Australian Legal Practitioner chosen by the respondents. 

Amendment of complaint

17. Mr Baldwin has applied to amend his complaint to include the allegation that Brian Robinson engaged in victimisation of Mr Baldwin during speeches made to the membership of the Cooroy Golf Club at the annual general meeting of the Club on 11 November 2009. It is sought to be alleged that Mr Robinson’s actions constituted a breach of sections 130(1)(a)(ii), 130(1)(a)(iii) and 130(1)(b) of the Anti-Discrimination Act 1991.
18. The original complaint did not include any claim based on victimisation.  The complaint was about alleged discriminatory conduct based on impairment in the work context.  As the original complaint was lodged in December 2008, a claim of victimisation in 2009 would not logically form part of the complaint. 
19. Section 178 of the Anti-Discrimination Act 1991 provides the power for the Tribunal to allow a complainant to amend a complaint and in doing so, to permit an amendment that concerns matters not included in the complaint. The respondents have submitted that the Act does not provide power to allow a fresh complaint to be brought in the first instance before the Tribunal.
20. It was submitted that adding in a claim for victimisation based on conduct that allegedly occurred in November 2009 would be beyond the power set out in section 178 as such an amendment would go beyond adding in matters related to the original complaint and would amount to adding a fresh complaint.
21. The Tribunal accepts the cogency of those submissions.  The claim that is sought to be added was clearly never able to be the subject of the original claim that was lodged and processed through the Anti-Discrimination Commission.  It is not incidental to the original complaint so as to be reasonably considered a part of that complaint.  It is a fresh complaint that should first be made to the Commission.  The application to amend the complaint must be dismissed.