Lawler v Fraser Coast Regional Council

[2012] QCAT 142

CITATION: Lawler v Fraser Coast Regional Council [2012] QCAT 142

PARTIES:	Peter James Lawler (Applicant)
v
Fraser Coast Regional Council (Respondent)

APPLICATION NUMBER: ADL084-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 2 April 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.   Leave is not granted for the respondent to be represented in the proceedings by an Industrial Advocate.

2.   Leave is granted for the parties to be legally represented in the proceedings.

CATCHWORDS:

ANTI-DISCRIMINATION – complaint of discrimination in the workplace based on impairment – where respondent sought leave to be represented by an industrial advocate – where proposed person is not an Australian legal practitioner – where proposed person has no experience of representing persons at the hearing stage in anti-discrimination matters

Queensland Civil and Administrative Tribunal Act 2009, s 43(4)(b)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Peter Lawler has complained that the actions of staff employed by the Fraser Coast Regional Council contravened the Anti-Discrimination Act 1991. Mr Lawler had been employed by the Council at the times relevant to his complaint but he is no longer employed by the Council.  His complaint is based on impairment.  He contends that he was treated less favourably in his employment by the Council because of his impairment.

2. The Council denies that it has discriminated against Mr Lawler or treated him less favourably because of his impairment. The issues in dispute will involve interpretation of sections 10 and 15 of the Anti-Discrimination Act 1991 and may involve consideration of defences under sections 25 and 36 of that Act. 

3. Mr Lawler and the Council have sought leave to be represented in the proceedings. Section 43 of the QCAT Act provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise.

4. The QCAT Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when considering whether the interests of justice require QCAT to grant leave to a party to be represented. I have considered the issues of fact and law that have to be determined in this complaint and I am satisfied that there is complexity associated with the issues in dispute between the parties.

5. It would be of assistance to the fair, economical, just and quick disposition of the issues in dispute for persons with knowledge of the application and interpretation of the law as it relates to contraventions of the Anti-Discrimination Act 1991 to have input into the issues in dispute at the hearing of this complaint.  I am satisfied that it is in the interests of justice for the parties to be represented in this stage of the proceeding which is leading to the final hearing of the complaint before the tribunal. 

6. While Mr Lawler has sought leave to be represented by a legal practitioner, the Council has sought leave to be represented by an industrial advocate. According to section 43(4) of the QCAT Act, a person cannot be represented in a QCAT proceeding by a person who is not a legal practitioner unless the tribunal is satisfied that the person is an appropriate person to represent the party.

7. The Council has informed the tribunal registry that it seeks leave to be represented by the industrial advocate for the Local Government Association of Queensland Ltd.  This advocate has been involved in representing local government authorities across a broad range of issues in relation to industrial disputes such as award and certified agreement interpretation, industrial action, reinstatement applications and disciplinary matters. 

8. It was stated by the Council that many of the issues handled by the industrial advocate were settled at conference in the Queensland Industrial Relations Commission although some of the issues had proceeded to arbitration before that Commission and one matter went to the Industrial Court.  The advocate had represented three councils at the Anti-Discrimination Commission at the conciliation stage of complaints.  The advocate had never appeared before QCAT in anti-discrimination matters nor had the advocate appeared before its predecessor, the Anti-Discrimination Tribunal.  

9. The council did not provide any information which revealed the advocate’s extent of knowledge of the Anti-Discrimination Act 1991, of the relevant authorities which have applied and interpreted that Act, of comparable legislation in other States and the Commonwealth or of general legal principles and concepts that will arise in a hearing interpreting legislation before QCAT.  The issues in dispute are not industrial issues: the issues happen to have arisen in the context of a workplace.  The stated experience of the industrial advocate in industrial disputes, award and certified agreement interpretation, industrial action, reinstatement applications and disciplinary matters is mostly irrelevant to the issues in dispute in this complaint.

10. I am not satisfied that the industrial advocate proposed for the purpose of representing the Council in this case is an appropriate person in terms of section 43(4) of the QCAT Act. Due to his limited background and experience, I consider that the industrial advocate would not sufficiently be able to contribute to the fair, economical, just and quick disposition of the issues in dispute about the application and interpretation of the law as it relates to contraventions of the Anti-Discrimination Act 1991.

11. This finding should not be interpreted as meaning that no industrial advocate would be granted leave to represent persons at QCAT in anti-discrimination complaints.  There have been circumstances when the background and experience of an industrial advocate has warranted a finding that such an advocate is an appropriate person to represent a party.  Applications must of necessity be considered on a case by case basis.

12. Although the Council did not seek leave to be represented in this proceeding by a legal practitioner, I consider that it would be appropriate to grant leave for this purpose as I have granted leave to Mr Lawler to be legally represented.  It is of course a matter for the Council to decide if they want to be represented by a legal practitioner or not.