Hawkins v State of Queensland

[2011] QCAT 511

CITATION: Hawkins v State of Queensland & Ors [2011] QCAT 511

PARTIES:	Andrea Hawkins
v
State of Queensland James Keating Larelle Frauenfelder Brendan Smith Glen Hoppner

APPLICATION NUMBER:   ADL075-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 28 September 2011

DELIVERED AT: Brisbane

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

CATCHWORDS: 

ANTI-DISCRIMINATION – where leave granted for parties to be legally represented – where complex issues of fact or 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. Andrea Hawkins has complained that four specified officers of the Department of Education and Training have wrongfully discriminated against her at work because of an impairment.  Ms Hawkins also complains that her employer is vicariously liable for the wrongful actions of its specified employees.

2. The conduct complained about took place over a 13 month period from June 2009 to July 2010.  The complaints are denied by the respondents.  The particulars of the complaints are contained in the referral report sent to QCAT by the Anti-Discrimination Commission Queensland.  The complaints as expressed by Ms Hawkins encompass a sequence of events and involve many persons, some of whom have been specified as respondents in the proceeding.  

3. The respondents have sought leave to be legally represented in the proceeding.  Ms Hawkins has opposed leave being granted.  She did not seek leave to be legally represented and she submitted that it would be unfair for the respondents to be legally represented in that case.  She submitted that legal representation of the parties would only cause a delay in the resolution of the case. 

4. Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.[1]  When applications are made by parties for leave to be legally represented, QCAT must determine on a case by case basis whether the particular circumstances of the case give rise to the need for legal representation to meet the interests of justice.

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

5. QCAT has an unfettered discretion when determining whether to grant a party leave to be represented. However, there are some provisions set out in section 43 of the Queensland Civil and Administrative Tribunal Act 2009 which QCAT may take into account when determining applications for leave for legal representation. 

6. One such factor that QCAT may take into account is whether there are complex questions of law or fact involved in the proceeding.  I am satisfied that the proceeding does involve complex questions of fact and of law.  The factual basis of the complaint covers many discrete incidents over a 13 month period involving a number of different persons and various aspects of employment policies and practices. 

7. Ms Hawkins relies on an impairment as the basis of her complaint.  It is evident from the referral documents that the respondents do not concede the presence of a relevant impairment or at least the impact that any relevant impairment may have had on the working arrangements of Ms Hawkins. 

8. The presence of complex questions of fact or law would not in all cases compel QCAT to grant leave for legal representation.  The only basis for legal representation is whether the interests of justice require leave to be granted.  Complex questions of law may arise because there are several pathways arguably available in an adjudicative process that the tribunal could follow towards reconciling conflicting legal obligations imposed by the law on a party.  It would be in such cases of significant benefit to QCAT for the relevant legal issues to be arranged and presented by an experienced legal practitioner.

9. QCAT’s statutory objects to deliver just and economical outcomes are more likely to be achieved if in cases with complex questions of law or fact there is some legal forensic input into the orderly identification of the issues that the tribunal has to determine.  I consider that input of that nature will assist QCAT in this case to promote the quality and consistency of decisions made by the tribunal in anti-discrimination matters. 

[10]  QCAT is already under a separate statutory requirement to ensure that parties understand the legal implications of assertions made in the proceedings.[2]  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.  I am satisfied that granting leave to the respondents in this case to have legal representation will not, for the reasons discussed above, cause disadvantage to Ms Hawkins or delay the resolution of the matters in dispute.

[2] Section 29(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009.