Nguyen v Chief Executive, Department of Employment, Economic Development and Innovation

[2010] QCAT 145

CITATION: Nguyen v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 145

PARTIES:   Kim Hung Nguyen

V

Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:            FHR 073-09

MATTER TYPE:    General administrative review matters

HEARING DATE:   29 January 2010

HEARD AT:   Brisbane

DECISION OF:   P J Hanly Member

DELIVERED ON:   29 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application by both parties seeking leave to have legal representation at the hearing is granted

CATCHWORDS: Section 43 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Fisheries Tribunal on 25 August 2009 by Kim Hung Nguyen (the applicant) appealing against a decision made under the Fisheries Act1994 by a delegate of the Chief Executive of Queensland Primary Industries and Fisheries to amend the applicant’s commercial fishing boat licence by removing the L1 fishery symbol. Queensland Primary Industries and Fisheries is part of the Department of Employment, Economic Development and Innovation. 
2. An application has been made to the Tribunal by both the applicant and the respondent seeking leave to be legally represented in the proceedings.  Both applications have been dealt with together.

ISSUES AND THE LEGISLATION

3. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Fisheries Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.   
4. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act. 
5. The enabling Act in this case, the Fisheries Act1994, and the Queensland Civil and Administrative Tribunal Act 2009 both contain provisions for a party in the proceeding to be legally represented only with the leave of the Tribunal.    
6. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009  (the Act) 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—

(c)  the party is a State agency;

(d)  the proceeding is likely to involve complex questions of fact or law;

(e)  another party to the proceeding is represented in the proceeding;

(f)   all of the parties have agreed to the party being represented in the proceeding.

(4) A party can not be represented in a proceeding by a person—

(a) who, under rules made under section 224(3), is

disqualified from being a representative of a party to a

proceeding; or

(b) 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.

(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—

(a) the party is a corporation; or

(b) the tribunal has asked for the certificate.

(6) The tribunal may appoint a person to represent an unrepresented party.

(7) In this section—

Australian legal practitioner see the Legal Profession Act 2007.

government legal officer see the Legal Profession Act 2007.

7. It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right.  In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
8. Rule 53(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised to act for it in the proceeding.  However, rule 53(2) provides that leave from the Tribunal is required if a State agency seeks to appear through an Australian legal practitioner or a government legal officer. 

SUBMISSIONS

1. The respondent made some initial general submissions in support of the application for leave to be represented by a legal officer. It was submitted that the Chief Executive as respondent to this proceeding was not personally involved in the decision making process.  The relevant decision making power had been delegated to Tara Smith, who will be on maternity leave from early in 2010.  It was submitted that as a result of the delegation of decision making power in this case any appearance of the respondent in the proceedings will be necessarily of a representative nature.

10.It was submitted that the question to be determined was which representative of the Chief Executive is the most appropriate person to appear in the proceedings on behalf of the respondent. 

11.The respondent submitted that its representation by a legal officer would

·     advance the interests of justice

·     promote procedural fairness

·     promote the objects of the Fisheries Act 1994 and the objects of the Queensland Civil and Administrative Tribunal Act 2009 and

·     ensure that the proceeding was conducted in a manner that is accessible, fair, just, economical, informal and quick.

12.It was submitted that if leave were not to be granted for legal representation, the decision maker, being the only officer who has knowledge of the matter, would be responsible for representing the Chief Executive.  It was submitted that in doing so, the decision maker would be placed in the unenviable position of attempting to separate themselves from the conclusions reached in their decision. 

13.It was further submitted that the decision maker would be subject to cross-examination in the proceeding which would be unhelpful to the resolution of the appeal. 

14.The respondent submitted that representation by a legal officer would be more objective and dispassionate and, consistent with the Act, would promote the quality and consistency of the Tribunal’s decisions, would encourage early and economical resolution of the dispute and ensure like cases are treated alike. 

15.Next turning to the factors set out in section 43(3) of the Act as circumstances supporting the giving of leave, the respondent submitted that

·     the respondent is a State agency and

·     the proceedings involve some complex issues of fact and law.  

16.It was submitted that being a State agency, the respondent had an obligation to ensure that the Tribunal is given all necessary information, both favourable and unfavourable. It was submitted that a legal officer would ensure that proceedings are run as efficiently as possible and would be able to provide the appropriate expertise to assist the Tribunal in resolving the matter.  It was submitted that only a legal officer could summarise matters of law and facts of significance and provide chronologies. 

17.It was submitted that as costs are not recoverable under the Fisheries Act 1994 the applicant would not suffer any detriment in the event that the respondent is represented by its legal officer. 

18.The applicant did not file any submissions about the application by the respondent for leave to be represented in the proceedings.  However the applicant has also sought leave to be represented in the proceedings.  The applicant has been represented by Nguyen Lawyers since the commencement of the appeal.   

CONCLUSION

19.The Tribunal notes that although the former Tribunal did not formally grant leave to the applicant to be legally represented, it can reasonably be inferred that such leave was granted.  The former Tribunal did not take issue with the applicant’s nomination of his legal representative when he lodged his appeal, and all correspondence from the Tribunal to the applicant after lodgement of the appeal was sent through his legal representative.

20. In these circumstances, the Tribunal is satisfied that it would be unfair to infer that leave had been granted to the applicant but refuse leave to the respondent.  The Tribunal is therefore satisfied that it is appropriate for both parties to be legally represented on the hearing of the application.
21.  The application by both parties for leave to be legally represented is granted.