Leadbeatter v State of Queensland and Green
[2010] QCAT 659
•20 December 2010
| CITATION: | Leadbeatter v State of Queensland and Green [2010] QCAT 659 |
| PARTIES: | Sarah LEADBEATTER |
| v | |
| First Respondent | State of Queensland |
| Second Respondent | Erica GREEN |
| APPLICATION NUMBER: | ADL110-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 13 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 20 December 2010 |
| 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 – leave sought for a party to be legally represented – section 43 of the Queensland Civil and Administrative Act 2009 - proceedings not likely to involve complex questions of fact or law – not satisfied legal representation required in the interests of justice. |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 23 April 2010 Sarah Leadbeatter lodged a complaint with the Anti-Discrimination Commission on behalf of her daughter, Ebony, alleging that her daughter had been unlawfully discriminated against at her school by reason of an impairment. The complaint was not able to be resolved by the Commission and on 19 October 2010 the complaint was referred to this tribunal.
The respondents are the State of Queensland and Erica Green. The first respondent is responsible for the management of State schools in Queensland and the second respondent was the principal of the relevant school at the time of the complaint.
The complaint alleges that on an occasion in February 2010 and on an occasion on 13 April 2010 Ebony was left unsupervised in the sick bay at her school in circumstances where Sarah Leadbeatter had given instructions that her daughter was not to be left without supervision due to her epilepsy condition.
The respondents have sought leave to be legally represented in the proceedings. Neither Sarah Leadbeatter nor her daughter is legally represented in the proceedings.
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) where relevant 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—
(a)the party is a State agency;
(b)the proceeding is likely to involve complex questions of fact or law;
(c)another party to the proceeding is represented in the proceeding;
(d)all of the parties have agreed to the party being represented in the proceeding……..
According to section 43(2) (b) (iv) of the Act, the respondents will require the leave of the tribunal to be legally represented as the respondents do not satisfy the provisions in sections 43(2) (b) (i) to (iii). The respondents must satisfy the tribunal, when considering whether to grant leave for representation, that the interests of justice require them to be legally represented. The Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when deciding whether or not to give leave.
In this case the first respondent comes within the category of a State Agency which is one of the factors that the tribunal may take into account under section 43(3). As the tribunal has discussed in State of Queensland v Greenland[1], the reasoning behind the legislature including the category of a State Agency as a factor that may be of influence when considering the granting of leave is not readily apparent from the Act but it may be related to the fact that State Agencies are generally a party in the review jurisdiction of the tribunal due to their role as makers of decisions being reviewed. The Act obliges the decision maker in the tribunal’s review jurisdiction to help the tribunal produce the correct and preferable decision. That obligation is not placed on other parties in proceedings outside the review jurisdiction of the tribunal.
[1] [2010] QCATA 91
The assistance statutorily required from a decision maker may in some cases be enhanced by permitting legal representation depending on the particular circumstances of each case. In cases based on an allegation of a breach of the anti-discrimination legislation, a State Agency is merely one of several parties to the proceeding and does not have any specific statutory duty to discharge to the tribunal that is materially different from the duties owed by other parties to the tribunal.
In this case, the fact that the first respondent is a State Agency does not have any particular cogency when the tribunal weighs up the circumstances relevant to the exercise of its discretion about permitting legal representation. The State is expected to act as a model litigant whether the State is legally represented in the proceedings or not.
10. The respondents have submitted that the matters in this proceeding involve complex questions of law and fact and they identify in their written submissions the matters they describe as being complex. The tribunal does not agree with that submission. This case will require the tribunal to decide whether the actions of the respondents on two specified occasions constitute unlawful discrimination. On each occasion it will be alleged that Ebony was left unsupervised in the sick bay at her school contrary to the instructions of her mother.
11. While undoubtedly the tribunal will be required to make findings of fact and apply the law to those facts, the tribunal does not consider that the complaint gives rise to complex issues of either law or fact. Is there any other factor that would give rise to legal representation being required in this case in order to satisfy the interests of justice? The tribunal has not found any other determinative factor in this case as discussed below.
12. The respondents can always obtain legal advice and assistance at any stage in the preparation of their case and in the preparation of documents without requiring leave under section 43 of the Act but they are prevented by the Act from being actually represented by their lawyer before the tribunal unless the interests of justice require otherwise.
13. The tribunal has an obligation to take all reasonable steps to ensure each party to a proceeding understands the practices and procedures of the tribunal and understands the nature of the assertions made in the proceeding and the legal implications of the assertions. The tribunal will comply with that obligation by explaining to the parties the tribunal’s practices and the issues involved in the proceeding together with an explanation of the legal issues arising from the complaint.
14. The tribunal considers that the provisions in section 29 of the Act are designed in part to prevent any party from being disadvantaged by not having legal representation in cases where the tribunal is satisfied that the interests of justice do not otherwise require a party to be legally represented.
15. The Act has set up a regime in this tribunal where parties are primarily expected to represent themselves. The interests of justice are achieved by the tribunal dealing with cases in a way that is fair, just, economical and informal, as required by the objects of the Act. It is in the context of those objects that the tribunal must consider in any particular case whether leave for legal representation is required.
16. No doubt the respondents consider they would be advantaged by having legal representation but the Act invokes a broader threshold, namely whether the interests of justice require leave to be granted: not whether one of the parties considers it would be to its advantage to be represented. The tribunal considers that it is best able to achieve a fair, just, economical and informal process by dealing directly with the parties and not through legal representatives, at least in this stage of the complaint.
17. Taking into account the submissions made by the respondents, the tribunal is not satisfied that the interests of justice require the respondents to be legally represented up to the end of the compulsory conference stage of the proceedings. The member conducting the conference can decide if the respondents should be granted leave to be legally represented if the complaint is not resolved at that conference.
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