Dogan v Gill & Wet Fix Pty Ltd

[2010] QCAT 97

CITATION: Dogan v Gill & Wet Fix Pty Ltd [2010] QCAT 97

PARTIES:   Christina Dogan

And

Pam Gill

And

Wet Fix Pty Limited

APPLICATION NUMBER:            ADC032-09

MATTER TYPE:   Anti-Discrimination Matters

HEARING DATE:   21 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   21 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

1. A complaint by Christina Dogan (the complainant) was referred to the Anti-Discrimination Tribunal on 24 August 2009 under the Anti-Discrimination Act 1993 against Pam Gill and Wet Fix Pty Limited (the respondents). 
2. An application has been made by the complainant 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 Anti-Discrimination Tribunal on 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 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.    
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—

(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.

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.

SUBMISSIONS

1. The complainant via her lawyers made submissions in support of the application for leave to be legally represented. It was submitted that the complainant comes from a non-English speaking background and has limited education.  It was submitted that the complainant does not require an interpreter but needs support to understand the proceedings. 

2. The respondents have not sought leave to be represented in the proceedings.

CONCLUSION

10.The Tribunal notes that the complainant has been able to communicate effectively the facts which constitute her complaint in writing to her employer at the time of the behaviour the subject of the complaint and later to the Anti-Discrimination Commission.   Those documents, in her own handwriting, do not demonstrate to the Tribunal that there is any relevant communication disadvantage arising from the complainant’s non–English speaking background or from her limited education.   There is no barrier evident in the complainant’s complaint to her understanding of the nature or purpose of her complaint which is the subject of these proceedings. 

11.The submissions did not otherwise address any of the relevant factors found in section 43(3) of the Act however the Tribunal in considering the application had regard to whether there were any complex questions of law or fact involved in the proceedings.

12.From a reading of the documentation in the referral to the Tribunal and the contentions and evidence lodged by the parties, the Tribunal has been unable to ascertain any such complex question that would necessitate input from a legal representative at a mediation.  

13.The complainant can choose to obtain legal advice as part of her preparation for the mediation and can seek legal assistance with the formulation of points for discussion at the mediation without requiring leave under section 43 of the Act. However the Act does not permit the complainant to be represented at the mediation by her lawyer unless the interests of justice require otherwise.

14. The Tribunal is not satisfied that the interests of justice require the complainant to be legally represented at the mediation of her complaint.  The respondents have not sought to be legally represented at the mediation.  The application for leave to be represented is dismissed.   

15.Should mediation fail to resolve the complaint and should the complaint proceed to a final hearing, the Tribunal would be prepared to revisit an application for leave for legal representation as there may be grounds for determining that the complainant is at a disadvantage if she were required to conduct her case without representation at the final hearing.