Morton v Director General, Department of Justice and Attorney-General

[2017] QCAT 255

CITATION:

Morton v Director General, Department of Justice and Attorney-General [2017] QCAT 255

PARTIES:

Deborah Joy Morton
(Applicant)

v

Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML134-17

MATTER TYPE:

Childrens matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Deputy President O’Callaghan

DELIVERED ON:

3 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The application for leave to be represented filed on 9 June 2017 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – Leave to be Represented – where applicant has applied for leave to be represented by a person who is not a legal practitioner – where person has provided a statement and will be a witness in the proceeding – whether in the interests of justice to grant leave

Queensland Civil and Administrative Tribunal Act 2009, s 43

APPEARANCES:

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

REASONS FOR DECISION

1. Deborah Joy Morton has applied to the Tribunal to review a decision to issue her with a negative notice with respect to her application for a blue card.

2. The Tribunal has made directions requiring the decision maker to file relevant documents[1] and for Ms Morton to file a brief personal history.

   [1]As required by the QCAT Act, s 21(2).

3. The matter has been set down for a compulsory conference on 23 August 2017.

4. Ms Norton has filed an application on 9 June 2017 asking that Mr James Heathwood be given leave to represent her in these proceedings. This decision deals with that application.

5. The starting point in the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) on the issue of representation is that the parties represent themselves unless the interests of justice require otherwise.[2]

   [2]QCAT Act, s 43(1).

6. If a party seeks to be represented, the QCAT Act gives some guidance as to the circumstances which might support a finding that it is in the interests of justice for a party to be represented, for example where the proceedings involve complex questions of law and fact.[3]

   [3]QCAT Act, s 43(3).

7. Mr Heathwood is not a legal practitioner.

8. Section 43(4) of the QCAT Act provides that a party cannot be represented in a proceeding by a person who is not an Australian legal practitioner or Government legal officer, unless the Tribunal is satisfied the person is an appropriate person to represent the party.

9. Ms Morton says that the reasons for the decision set out in the decision maker’s information notice detailed very personal and unpleasant events which she said she is embarrassed about.  She suggests she would find it difficult to represent herself and that she may be at a disadvantage because the decision maker will be represented at the hearing by someone who is familiar with Tribunal practices and procedures.

10. Ms Morton says Mr Heathwood is an appropriate person to represent her.  She said he is employed with the Department of Public Works and Housing and has had previous experience in the Small Claims Tribunal and therefore is familiar with the Tribunal setting.

11. She also says Mr Heathwood “knows me from my current work with the netball community and also can serve as a witness to my current work ethic, emotional state, and commitment to the development and protection of the children in the netball community.”[4]

    [4]See Application for leave to be represented, filed 9 June 2017.

12. Indeed Mr Heathwood has provided to the Tribunal a personal reference for Ms Morton which details his support for her.

13. The respondent decision maker opposes the application for Mr Heathwood to represent Ms Morton. It says, and I accept, that it is not appropriate for a person who is a witness in the proceedings to also represent and advocate for the applicant in the proceedings.

14. Further, on the material put forward by Ms Morton, while there is sufficient information to suggest that Mr Heathwood is well qualified to be a witness who may give evidence in support of Ms Morton, there is insufficient evidence to conclude that Mr Heathwood has experience in the blue card legislative system to be of assistance in the proceedings, such as to make it in the interests of justice for him to represent Ms Morton.

15. I also note and accept the respondent’s submission that any concern by Ms Morton that she will be disadvantaged without being represented by Mr Heathwood is not warranted.

16. These proceedings are not adversarial.

17. The decision maker’s representative has an obligation to assist the Tribunal in reaching the correct and preferable decision on Ms Morton’s review.

18. Further, the Tribunal itself has an obligation to take all reasonable steps to ensure that Ms Morton understands the practices and procedures of the Tribunal, the nature of the assertions made and the legal implications of the assertions and any decision of the Tribunal relating to the proceeding.[5]

    [5]QCAT Act, s 29.

19. As noted by the Respondent, Mr Heathwood is able to be a support person for Ms Morton during the hearing.  It will be a matter for the Tribunal Member who is presiding at the hearing as to what times Mr Heathwood is able to attend the hearing as a support person as well as give evidence if that is what Ms Morton decides is appropriate.

20. For these reasons, I conclude that Mr Heathwood is not an appropriate person to represent Ms Morton and the application is dismissed.