Karrasch v State of Queensland & Beckman

[2011] QCAT 341

CITATION: Karrasch v State of Queensland & Beckman [2011] QCAT 341

PARTIES:	Clare Helen KARRASCH
V
State of Queensland Graeme BECKMAN

APPLICATION NUMBER:   ADL031-11

MATTER TYPE: Anti-Discrimination Matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 12 July 2011

DELIVERED AT: Brisbane

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

CATCHWORDS :  ANTI-DISCRIMINATION – referred complaint of single incident of sexual harassment – no complex questions of fact or law found – section 43 of the Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 14 April 2011 a complaint by Clare Karrasch was referred to the tribunal by the Anti-Discrimination Commission Queensland.  Ms Karrasch had alleged that she has been subjected to sexual harassment.  The respondents are the State of Queensland and Graeme Beckman.  Although the complaint lodged with the Commission relied on several incidents of alleged sexual harassment, the accepted complaint was of a single incident that had allegedly occurred on 12 February 2010. 

2. The respondents applied for leave to be legally represented in the proceedings. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. Section 43(3) sets out some factors that the tribunal may consider when exercising the discretion to grant leave to a party to be legally represented.

3. The facts of the complaint are not complex.  Ms Karrasch has complained that on 12 February 2010 Mr Beckman made a comment to her with sexual connotations that offended and humiliated her.  It is alleged that the State of Queensland, as the employer of Mr Beckman and at that time also of Ms Karrasch, was also liable for the comment.     

4. The issue to be determined by the tribunal is whether the comment amounts to sexual harassment under the Anti-Discrimination Act 1991. In order to succeed in her complaint, Ms Karrasch must satisfy the tribunal that the words alleged to have been spoken by Mr Beckman were uttered, that the words contained a remark with sexual connotations relating to Ms Karrasch and that a reasonable person would have anticipated that Ms Karrasch would be offended by the comment. 

5. This is not a case involving a wide factual matrix with many disparate events interwoven within a multitude of legal issues that form the basis of a complaint of contravention of the Anti-Discrimination Act 1991. This case is unlikely to give rise to complex questions of law and is most likely to be resolved on the findings of fact to be made by the tribunal.   

6. The tribunal has the responsibility of applying the law in order to resolve disputes between parties.  The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.  Ms Karrasch has sought to access justice in this tribunal about an incident that she alleges constitutes sexual harassment of her. Her description of the incident is clear and particularised.    

7. The respondents submitted that if leave to be legally represented was not granted, the Queensland Police Service in responding to the complaint at the tribunal would need to involve an Assistant Commissioner who is a member of the Senior Executive of the Queensland Police Service and a Human Resource Manager.  This level of involvement by senior officers would have an operational impact on the Queensland Police Service and they would become removed from their primary duties while so involved in this proceeding. 

8. It is further submitted that the Queensland Police Service would have to double up in the use of its resources if leave for legal representation was declined as staff providing legal advice would still remain committed as well as the staff appearing for the respondents before the tribunal.    

9. These are serious and weighty issues raised by the respondents but they are misconceived in this case.  The first stage of the dispute resolution process within the tribunal is the compulsory conference. The parties participating in a compulsory conference are expected to engage in a genuine attempt to reach a resolution of the dispute.   Direct and active participation by the nominated senior officers is not expected at that stage of the proceedings and certainly no evidence would be required from them at that stage. 

[10] The purposes of the conference as set out in section 69 of the Queensland Civil and Administrative Tribunal Act 2009 focus on identifying the issues in dispute, promoting settlement of the dispute, identifying questions of fact and law to be decided by the tribunal and to enable the member conducting the conference to make directions about the further conduct of the proceeding. This is a single incident case. The purposes of the conference can be achieved most readily and properly by the parties themselves.

[11]  Rather than the interests of justice requiring the parties to be legally represented at the conference, the tribunal is 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, economical and informal resulting in a fair and just process.  The objects of the tribunal as well as the perceived interests of the parties must be taken into account when considering what in any given case are the interests of justice.  Each case is considered on its particular circumstances. 

[12]  Justice and fairness are delivered best in this case by providing the parties with an opportunity to resolve their dispute directly in a confidential setting of a conference supported by an experienced member.  The tribunal was not satisfied that the presence of legal representation for the respondents was required if the tribunal was to achieve its objects and deal with the matter in a fair and just way. 

[13]  Leave was accordingly not granted to the respondents to be legally represented up to and including the compulsory conference.  It is possible that issues may be identified at the conference that the member conducting the conference may consider could give rise to grounds to have a further look at the request for legal representation for the hearing stage of this proceeding.  The parties can make a further application at that stage as the order refusing leave results in that possibility being available.