GK v Dovedeen Pty Ltd (No 2)

[2011] QCAT 445

CITATION: GK v Dovedeen Pty Ltd and Anor (No 2) [2011] QCAT 445

PARTIES: Applicant	GK
v
Dovedeen Pty Ltd (First Respondent)
Joan Hartley (Second Respondent)

APPLICATION NUMBER:   ADL134-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 15 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Leave is granted for the respondents to be legally represented in this proceeding.

CATCHWORDS: 

ANTI-DISCRIMINATION – leave sought for legal representation – where complex issues of law

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. For over 2 years, GK stayed at a motel in Moranbah and operated her business as a sex worker at the motel.  In June 2010 the manageress of the hotel informed GK that she would not be allowed to stay at the motel in future.  GK lodged a complaint that she had been discriminated against because of lawful sexual activity.

2. The complaint has been referred to QCAT for determination and a hearing will take place in the next few weeks.  The respondents sought leave to be legally represented in the proceeding.  GK opposed leave being granted.

3. Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.[1]  QCAT has an unfettered discretion when determining whether to grant a party leave to be represented.  The Queensland Civil and Administrative Tribunal Act 2009 sets out, however, some factors that QCAT may consider as supporting the giving of leave. 

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

4. One such factor is the possible presence of complex questions of law or fact.  The primary focus of QCAT is required to be on the interests of justice which is a wider concept than the relative interests of either party to a proceeding.   

5. The respondents submitted that this proceeding involves unusual and complex legal issues.  In particular, the respondents are the owner and manager of the motel.  It was submitted that the second respondent, who is also one of the directors of the company which owns the motel, holds a liquor licence and under that licence she is permitted to supply liquor to guests in the rooms occupied by guests of the motel. 

6. It is submitted that it is a term of the liquor licence that no commercial activities take place in the licensed areas, including the rooms of the motel.  It was submitted that prostitution constitutes a commercial activity.  It was submitted that a determination of the complaint by GK will involve possibly conflicting provisions in the Anti-Discrimination Act1991 and in the Liquor Act 1992.  

7. It was submitted that these complex issues of law would require argument before QCAT by a legal representative. 

8. GK had submitted that there were no complex factual issues in the case and the respondents would have had time prior to hearing to get up to speed on the legal ins and outs of the case.  She submitted that she would be at a substantial disadvantage if she were to represent herself should the respondents be legally represented.  

9. The basis for permitting parties to be legally represented is not to provide advantage to one party over another or to assist a party who is unfamiliar with the law.  The only basis for legal representation is whether the interests of justice require leave to be granted.

[10]  I am satisfied that the issues of law in this proceeding are somewhat novel and complex.  The determination to be reached by QCAT on the reconciling of what may be conflicting legal obligations may have wide ranging implications for licensed premises.  It will be of significant benefit to QCAT for the legal issues to be arranged and presented by an experienced legal practitioner.  The statutory objects of a just and economical delivery of outcomes by QCAT are more likely to be achieved if there is some legal forensic input into the identity of the issues that the tribunal has to determine. 

[11]  I was satisfied that it is in the interests of justice that leave is granted to the respondents to be legally represented in this proceeding.   

[12]  On a final note, GK had objected to QCAT considering the application for leave made on behalf of the respondents on the basis that they did not comply with the directions made on 8 August 2011.  QCAT is required to act fairly and according to the substantial merits of the case.  It would not be acting fairly to refuse to consider this application on the sole basis that a party is 2 days out of time to comply with a procedural order.  No prejudice to GK has been established by the late request for leave for legal representation by the respondents.