Leadbeatter v State of Queensland & Green

[2011] QCAT 305

CITATION: Leadbeatter v State of Queensland & Green [2011] QCAT 305

PARTIES:	Sarah Leadbeatter
v
State of Queensland Erica Green

APPLICATION NUMBER:   ADL110-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 6 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Leave is granted for the State of Queensland to appear through a government legal officer. 

CATCHWORDS:

ANTI-DISCRIMINATION – leave sought by State Agency to appear by government legal officer

Queensland Civil and Administrative Tribunal Rules 2009, rule 53

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. A complaint was made by Sarah Leadbeatter against the State of Queensland and Erica Green alleging that her daughter had been subject to unlawful discrimination.  The complaint was referred to the tribunal for determination. 

2. The State of Queensland had been denied leave to be legally represented in the proceeding.  As a State Agency, the rules of the tribunal permit this respondent to appear on its own behalf in the proceeding through an employee who is authorised to act for the respondent in the proceeding.  However leave of the tribunal is required if the State Agency wants to appear through a government legal officer.[1]     

   [1]        Rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009

3. Submissions were made on behalf of the State of Queensland seeking leave for the State of Queensland to appear by a government legal officer employed by the Department of Education and Training.  It was submitted that the complaint by Ms Leadbeatter is a legal proceeding and it would be appropriate for the State of Queensland to appear through an officer who has an understanding of the Anti-Discrimination Act 1991 and who could provide advice and make recommendations about settlement.

4. It was further submitted that it would be financially efficient for the State of Queensland to appear through one of the Department’s employed legal officers and it was submitted that it would be unfair to require the appearance to be by a non-legal officer as that would be a task outside the position description of non-legal officers.  It was submitted that the Department should be permitted to determine which of its employees are most suited to appearing for the State of Queensland having regard to their position descriptions and the functions of its workforce.

5. It was also submitted that the legal officers of the Department are experienced in taking part in settlement negotiations and have a strong knowledge of and experience in dealing with indemnity issues that would be of interest to the second respondent and would provide support to her.  It was submitted that the presence of a government legal officer would enhance the prospect of resolving the complaint at the conference stage.  

6. A State Agency should have the opportunity to select the most appropriate and most effective person to appear through in proceedings in this tribunal.  In some applications, such as review applications, it may be considered that the actual decision maker is the most appropriate person to appear and not a legal officer.  In other cases the tribunal would find that the State Agency could have an employed legal officer as the person appropriately appearing for that party.  The tribunal approaches these matters on a case by case basis.  

7. The tribunal found that in this case the submissions in favour of granting leave for appearance through a government legal officer were persuasive.  Some person would have to appear for the State of Queensland and a government legal officer employed by the Department of Education and Training would be appropriate for the reasons raised in the submissions.