Daley v Kalwun Development Corporation Limited

[2011] QCAT 568

CITATION: Daley v Kalwun Development Corporation Limited and Anor [2011] QCAT 568

PARTIES:	Leanne Daley
v
Kalwun Development Corporation Limited Vanessa Summers

APPLICATION NUMBER:   ADL085-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 23 September 2011

DELIVERED AT: Brisbane

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

CATCHWORDS: 

ANTI-DISCRIMINATION – leave sought for legal representation

Queensland Civil and Administrative Tribunal Act 2009, s 43

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. 

REASONS FOR DECISION

1. Ms Daley has claimed that her employment was terminated because of her pregnancy and because she had asked about part time work.  This claim has been denied by her former employer.  The claim relates to events occurring over a short period of time (less than 2 weeks) in January and February 2011. 

2. Both parties have applied for leave to be legally represented in the proceeding.  Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.[1]  Each case gives rise to its own individual factors that may be relevant to determining whether legal representation is or is not required in the interests of justice.  

   [1] Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009.

3. QCAT must act to resolve disputes between parties that have been referred to it by the Anti-Discrimination Commission.  QCAT is required to encourage the early and economical resolution of disputes.[2]  Resolution can be delivered by a form of alternate dispute resolution, called compulsory conferences in QCAT, or by a formal determination after a final hearing.  QCAT is also required to ensure proceedings are conducted in an informal way that minimises costs to parties.[3]

   [2] Section 4(b) of the Queensland Civil and Administrative Tribunal Act 2009.

   [3] Section 4(c) of the Queensland Civil and Administrative Tribunal Act 2009.

4. The facts that underlie this dispute are not complex.  Assertions have been made by one party about the interpretation of events and those assertions have been denied by the other parties.  That is the very essence of most disputes that come before QCAT.  How the law relates to those disputed assertions is a more complex issue but ultimately a resolution of that issue depends on which assertions are found to be correct.  

5. The first stage of the dispute resolution process within QCAT consists of the holding of a compulsory conference.  The parties participating in a compulsory conference are expected to engage directly with each other in a genuine attempt to reach a resolution of the dispute.  They know the facts of the claim intimately and only they hold the keys to the resolution of the dispute.  The conference process does not involve any determination being made about the disputed facts or about the law.   

6. The purposes of the conference, set out in section 69 of the Queensland Civil and Administrative Tribunal Act 2009, are stated to be the identification of the issues in dispute, the promotion of settlement of the dispute, identification of questions of fact and law to be decided by QCAT and enabling the member conducting the conference to make directions about the further conduct of the proceeding.

7. Those stated purposes can be best achieved when the parties are actively and directly involved in the conference and the purposes are consistent with the provisions in section 43 where the parties are expected to represent themselves in proceedings before QCAT.

8. I was satisfied that the interests of justice support this matter being dealt with at the conference stage in a way that is accessible to the parties, minimises costs to the parties and is informal.  I was not satisfied by the submissions of the parties that the interests of justice required the parties to be legally represented at the conference stage of this proceeding. 

9. At that stage it is in this case appropriate to provide the parties with an opportunity to resolve their dispute directly and without focussing the resolution process on legal argument and away from some practical resolution of the dispute that the parties have created.    

[10]  It is possible that the parties may after the conference stage establish that leave for legal representation for the hearing stage of this proceeding should be granted.  With recognition that the interests of justice may be served in different ways depending on the particular stage of the proceeding, leave was refused for legal representation up to and including the compulsory conference.  The ability of the parties to make an application after the end of the compulsory conference is open.