D Wren Pty Ltd and F Wren Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation

[2010] QCAT 29

CITATION: D Wren Pty Ltd and F Wren Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 29

PARTIES:   D Wren Pty Ltd and F Wren Pty Ltd

V

Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:            FHR001-08

MATTER TYPE:   General administrative review matters

HEARING DATE:   12 February 2010

HEARD AT:   Brisbane

DECISION OF:   Bridget Cullen Mandikos, Member

DELIVERED ON:   12 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application for legal representation dismissed

CATCHWORDS: Section 43 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Fisheries Tribunal on 20 July 2008 by D Wren Pty Ltd & F Wren Pty Ltd (the applicants) appealing against a decision made under the Fisheries Act1994 by a delegate of the Chief Executive of Queensland Primary Industries and Fisheries refusing an Application for a Developmental Fishery Permit to use set mesh nets to take pelagic species of finfish and sharks in Gulf of Carpentaria tidal waters, beyond 25 nautical miles from the territorial sea baseline.  Queensland Primary Industries and Fisheries is part of the Department of Employment, Economic Development and Innovation. 
2. An application has been made to the Tribunal by the respondent seeking leave to be legally represented in the proceedings.

ISSUES AND THE LEGISLATION

3. From 1 December 2009, the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Fisheries Tribunal, upon the commencement of the Queensland Civil and Administrative Tribunal Act 2009.   
4. Under section 256 of the Act, 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. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act. 
5. The enabling Act in this case, the Fisheries Act1994, and the Queensland Civil and Administrative Tribunal Act 2009, both contain provisions for a party in the proceeding to be legally represented only with the leave of the Tribunal.    
6. 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—

(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) 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.

7. 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.
8. Rule 53(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised to act for it in the proceeding.  However, rule 53(2) provides that leave from the Tribunal is required if a State agency seeks to appear through an Australian legal practitioner or a government legal officer. 

SUBMISSIONS

1. The respondent made some initial general submissions in support of the application for leave to be represented by a legal officer. It was submitted that the Chief Executive as respondent to this proceeding was not personally involved in the decision making process.  The relevant decision making power had been delegated to Shane Hansford.  It was submitted that as a result of the delegation of decision making power in this case any appearance of the respondent in the proceedings will be necessarily of a representative nature.

10.It was submitted that the question to be determined was which representative of the Chief Executive is the most appropriate person to appear in the proceedings on behalf of the respondent. 

11.The respondent submitted that its representation by a legal officer would

·     advance the interests of justice

·     promote procedural fairness

·     promote the objects of the Fisheries Act 1994 and the objects of the Queensland Civil and Administrative Tribunal Act 2009 and

·     ensure that the proceeding was conducted in a manner that is accessible, fair, just, economical, quick and informal.

12.It was submitted that if leave were not to be granted for legal representation, the decision maker, being the only officer who has knowledge of the matter, would be responsible for representing the Chief Executive.  It was submitted that in doing so, the decision maker would be placed in the unenviable position of attempting to separate themselves from the conclusions reached in their decision.

13.It was further submitted that the decision maker would be subject to cross-examination in the proceeding which would be unhelpful to the resolution of the appeal. 

14.The respondent submitted that representation by a legal officer would be more objective and dispassionate and, consistent with the Act, would promote the quality and consistency of the Tribunal’s decisions, would encourage early and economical resolution of the dispute and ensure like cases are treated alike. 

15.Next turning to the factors set out in section 43(3) of the Act as circumstances supporting the giving of leave, the respondent submitted that

·     the respondent is a State agency and

·     the proceedings involve some complex issues of fact and law.  

16.It was submitted that being a State agency, the respondent had an obligation to ensure that the Tribunal is given all necessary information, both favourable and unfavourable. It was submitted that a legal officer would ensure that proceedings are run as efficiently as possible and would be able to provide the appropriate expertise to assist the Tribunal in resolving the matter.  It was submitted that only a legal officer could summarise matters of law and facts of significance and provide chronologies. 

17.It was submitted by the respondent that as the applicants had been represented to date by a solicitor, and that as the respondent had been dealing with the applicants’ solicitors to date, that continuation of this would assist the Tribunal in progressing the matter efficiently.  

18.It was submitted that as costs are not recoverable under the Fisheries Act 1994 the applicant would not suffer any detriment in the event that the respondent is represented by its legal officer. 

19.The applicants did not file any submissions about the application by the respondent for leave to be represented in the proceedings.  There is no affidavit of service before the Tribunal indicating that the respondent’s application seeking leave to be represented has, in fact, been served upon the applicants.  Thus, although there is a solicitor listed on the record for the applicants, there has not been any formal request by the applicants seeking leave to be represented in the proceedings, and the respondent’s submissions are not correct on this point.  In these circumstances, it cannot be assumed that the applicants would be granted leave to be represented, nor can it be assumed that the applicants would consent to the respondent’s request for leave to be represented.

CONCLUSION

20.The Tribunal accepts that the respondent in these proceedings is a State agency as defined in the Act.  Under the Rules of the Tribunal, the respondent may appear in the proceedings through an employee, officer or member of the agency authorised to act for the respondent.  This means that the Chief Executive of the Department of Employment, Economic Development and Innovation is not required to appear in person in the proceedings and that an authorised employee can appear for him.     

21.The respondent is seeking leave to have one of its legal officers represent the respondent in the proceedings, submitting that the legal officer is more appropriate than a non-legally qualified employee.   As the proceedings are in the nature of a review, it strikes the Tribunal as being more helpful to have the decision maker give evidence that will be based upon first-hand knowledge, which may therefore assist the Tribunal in producing the “correct and preferable decision” in accordance with section 20 of the Act.

22.The Tribunal has given consideration to the respondent’s submissions that granting leave for legal representation in the proceedings would advance the interests of justice, promote procedural fairness, promote the objects of the relevant Acts and ensure the proceeding was conducted in a manner that is accessible, fair, just, economical, informal and quick in accordance with the objects stated in section 3 of the Act. 

23.The respondent did not, in its submissions, expand on these submissions and the Tribunal was left to its own thoughts as to the ways in which the presence of a legal representative might effect these outcomes.  Under section 28 of the Act the Tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit and must ensure that all relevant material is disclosed as far as is practicable.    

24.The Act does not assign to a legal representative of a party the task of promoting the objects of the Act: that responsibility is quite correctly placed onto the Tribunal.  Through its own processes and Rules, the Tribunal has from its commencement set in place arrangements that should result in parties to a proceeding being accorded procedural fairness and in matters being dealt with in a way that is accessible, fair, just, economical, informal and quick. 

25.The Tribunal does not accept the respondent’s submission that the presence of a legal representative in a proceeding will necessarily promote procedural fairness or will necessarily assist the Tribunal to a material degree to achieve its statutory objects.  The Tribunal has not been persuaded that granting leave to the respondent to be legally represented in the proceedings will advance the interests of justice as contended in the written submissions of the respondent.       

26.The Tribunal considers that, contrary to the submissions of the respondent, the proceedings will be enhanced by the decision maker appearing for the respondent in a role that goes beyond merely being a witness at the hearing. That person has first hand knowledge of the circumstances that were relied on in the decision making process and is no doubt knowledgeable about the policies and the law applicable to the decision. 

27.The Tribunal rejects the submission that the decision maker would be place in an unenviable position if required to appear in the proceeding for the respondent without the benefit of legal representation.  Parties appearing in person in Tribunal proceedings will very commonly be subject to cross examination about their own decisions and actions.   Section 95 of the Act provides the Tribunal with extensive powers to regulate cross examination and the Tribunal will act to ensure that its proceedings are conducted fairly for all parties.       

28.The respondent addressed relevant factors found in section 43(3) of the Act. The submissions made by the respondent that the Tribunal should take into consideration the respondent’s position as a State agency have already been discussed in these reasons. The other factor addressed by the respondent’s submissions was the likely involvement of complex questions of law and fact.

29.The respondent did not identify any particular issue of law or fact that could be considered as complex in these proceedings.  The respondent merely suggests that proceedings relating to the refusal to issue a developmental fishing permit are “unusual in the Fisheries review jurisdiction”.  With respect, that a matter does not come before the Tribunal often does not necessarily mean that it can be considered legally complex.  From a reading of the decision and of the documentation provided by the applicant, the Tribunal has been unable to ascertain any such complex question that would necessitate input from a legal representative as apart from technical expertise in the fishing industry that will no doubt be provided through the evidence of the applicant and respondent.  

30.The Tribunal does not accept the submissions of the respondent that representations by a legal officer will best ensure that the proceedings are run with the appropriate expertise to assist the Tribunal to resolve the matter. The respondent can access legal expertise in the preparation of its case and in the preparation of documents without requiring leave under section 43 of the Act. The respondent, appearing by an appropriate employee or officer such as the decision maker, is not prevented from presenting a case formulated with legal assistance but is prevented by the Act from being actually represented by its legal officer unless the interests of justice require otherwise.

31. Taking into account the submissions made by the respondent, the Tribunal is not satisfied that the interests of justice require the respondent to be legally represented on the hearing of the application.  The application for leave to be represented is dismissed.