Diggles v Heery & Australian Laboratory Services Pty Ltd
[2010] QCAT 96
•18 January 2010
CITATION: Diggles v Heery & Australian Laboratory Services Pty Ltd [2010] QCAT 96
PARTIES: Catherine Diggles
V
Michael Heery & Australian Laboratory Services Pty Ltd
APPLICATION NUMBER: ADC017-09
MATTER TYPE: Anti-discrimination matters
HEARING DATE: 18 January 2010
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 18 January 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
- A complaint by Catherine Diggles (the complainant) was referred to the Anti-Discrimination Tribunal on 29 June 2009 under the Anti-Discrimination Act 1993 against Michael Heery and Australian Laboratory Services Pty Ltd (the respondents).
- An application has been made by the respondents seeking leave to be legally represented in the proceedings.
ISSUES AND THE LEGISLATION
- 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.
- 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.
- The enabling Act in this case, the Anti-Discrimination Act 1993 does not contain provisions for a party to be legally represented in Tribunal proceedings. The Queensland Civil and Administrative Tribunal Act 2009 contains provisions for a party in the proceeding to be legally represented only with the leave of the Tribunal.
- 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.
- 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.
- Rule 54(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a corporation may appear in a proceeding through an officer of the corporation who is authorised to act for it in the proceeding. However, rule 54(2) provides that leave from the Tribunal is required if a corporation seeks to appear through an Australian legal practitioner.
SUBMISSIONS
The respondents via their lawyers made submissions in support of the application for leave to be legally represented. It was submitted that the second respondent is a company and several people have been involved with the matters in dispute. It was submitted that granting leave for legal representation will allow one person to speak on behalf of the second respondent.
10.The respondents submitted that legal representation of the respondents would assist the Tribunal in respect of the relatively complex facts regarding the interaction between the complainant’s complaint and her workers compensation proceedings.
11.The complainant did not file any submissions about the application by the respondents for leave to be represented in the proceedings. The complainant has not sought leave to be represented in the proceedings. The respondents contended that the complainant had previously consented to the respondents being represented in the proceedings.
CONCLUSION
12.The Tribunal accepts that the second respondent in these proceedings is a corporation and under the Rules of the Tribunal, the second respondent may appear in the proceedings through an officer of the corporation authorised to act for the second respondent.
13.The second respondent is seeking leave to have its lawyers represent the second respondent in the proceedings rather than one of its own officers. The reason advanced for this type of representation is to enable the second respondent to speak via one person in the proceedings.
14.While a single representative for the second respondent would be useful, the submissions have not convinced the Tribunal that the single representative should be a lawyer in a jurisdiction that expects the parties to represent themselves in proceedings.
15.The Tribunal considers that the proceedings will be enhanced by a person, who has responsibility for the management processes applied by the second respondent, appearing for the second respondent in a role that goes beyond merely being a witness. That person can effectively represent the position of the second respondent in the proceedings.
16.The respondents addressed some of the relevant factors found in section 43(3) of the Act such as the likely involvement of complex questions of fact.
17.From a reading of the documentation provided by the parties, the Tribunal has ascertained that there may be some complexity peculiar to this case. If the complaint does proceed to a final hearing, the Tribunal would be prepared to revisit whether any complex question remains in contention after mediation that may be assisted by having input from a legal representative.
18.The respondents can access legal expertise at any stage in the preparation of their case and in the preparation of documents without requiring leave under section 43 of the Act. The second respondent, appearing by an appropriate officer of the corporation, and the first respondent are not prevented from presenting their case formulated with legal assistance but they are prevented by the Act from being actually represented by their lawyer unless the interests of justice require otherwise.
19.The Tribunal does not consider that legal representation by the respondents is required in the interests of justice at mediation or that legal representation will assist the Tribunal to resolve the complaint during mediation between the parties.
- Taking into account the submissions made by the respondents, the Tribunal is not satisfied that the interests of justice require the respondents to be legally represented at mediation. The Tribunal gives the respondents liberty to reapply for leave to be represented if the complaint is not resolved at mediation.
- The current application by the respondents for leave to be represented is dismissed.
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