O'Connor v State of Queensland and Starkey

[2011] QCAT 131

CITATION: O’Connor v State of Queensland and Starkey [2011] QCAT 131

APPLICANT:	Deborah O’Connor
v
State of Queensland (First respondent)
Georgia Starkey (Second respondent)

APPLICATION NUMBER:   ADL131-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 8 March 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Leave is not granted for the Respondents to be legally represented in this proceeding up to and including the compulsory conference.

CATCHWORDS:  ANTI-DISCRIMINATION – LEGAL REPRESENTATION – State Agency – no complex issues of law or fact

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 24 November 2010 a complaint by Deborah O’Connor was referred to the tribunal by the Anti-Discrimination Commission Queensland.  Mrs O’Connor had complained that the respondents had unlawfully discriminated against her on the basis of impairment in the area of goods and services and in the administration of state laws and programs.  The respondents are the State of Queensland and Georgia Starkey.

2. The respondents applied for leave to be legally represented in the proceedings. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. Section 43(3) sets out some factors that the tribunal may consider when exercising the discretion to grant leave to a party to be legally represented.

3. The facts of the complaint are not complex.  Mrs O’Connor complains that on two stated occasions Ms Starkey verbally abused her about her impairments.  Ms Starkey is an occupational therapist within the Acute Care Team Mental Health Services at The Prince Charles Hospital.   

4. The issue to be determined by the tribunal is whether the events complained of amount to unlawful discrimination under the Anti-Discrimination Act 1991.In order to succeed in her complaint, Mrs O’Connor must satisfy the tribunal that the words alleged to have been spoken by Ms Starkey were uttered and that the words resulted in Mrs O’Connor being treated less favourably because of her impairment than another person would have been treated by Ms Starkey in circumstances that are the same or are not materially different.  The allegation of unlawful discrimination is denied by the respondents. 

5. There are cases before this tribunal involving a wide factual matrix with many disparate events interwoven within a multitude of legal issues that form the basis of a complaint of unlawful discrimination but this case is not one of those types of cases.  This case is unlikely to give rise to complex questions of law although the anti-discrimination legislation can be difficult to apply in complex factual cases.

6. The tribunal has been charged with the responsibility of applying the law in order to resolve disputes between parties.  The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.  The applicant has sought to access justice in this tribunal to right a wrong that she alleges has been committed against her by the State.  Her case has been presented using every day language.  Mrs O’Connor is unrepresented in the proceedings. 

7. The written submissions made on behalf of the respondents in support of their application for leave to be legally represented were 9 pages in length and were signed by a senior lawyer at Crown Law. The submissions were comprehensive and on point. The tribunal took the submissions into account when determining whether to exercise discretion that is not limited by the factors set out in section 43 of the Act.

8. It was submitted that with the assistance of legal representation the respondents would be able to present their case with care and precision and would be able to assist the tribunal to resolve this dispute in accordance with the objects of the Act.  The submissions allied this assertion with the statement that legal representation will assist the respondents to ensure their compliance with the model litigant principles. 

9. The tribunal was not convinced that the presence of legal representation in this case was necessary to ensure that the respondents comply with any of the obligations on the State to be a model litigant in the proceedings.  The tribunal will manage the proceedings and will ensure that neither party causes unnecessary delays or takes advantage of the other party.  The tribunal will assist parties to contain their case to the relevant issues while permitting, within reasonable bounds, the parties to have an opportunity to tell their stories as part of the process towards resolving the dispute.

[10]  The respondents submitted that it was unfair to require the respondents to be represented by persons unskilled or inexperienced in discrimination law.  This submission is misguided.  The dispute is between the applicant and the respondents.  The tribunal is established by legislation that seeks to have parties to a dispute resolve their disputes directly with each other in the tribunal.  The Act does not require persons extraneous to the dispute to represent the parties.  Ms Starkey and the State are the parties.  Under the rules of the tribunal an appropriate officer from the relevant State Agency can appear for the State.  That person would have knowledge of the expected standard of conduct of State employees relevant to the facts of the complaint. 

[11]  The submissions of the respondents which were based on a number of grounds, some of which are not specifically discussed in these reasons, did not convince the tribunal that the interests of justice require the respondents to be legally represented in this case up to and including the compulsory conference.  The tribunal considers that the objects of the Act, such as delivering accessible, fair, informal and economical justice, can be best achieved by the parties representing themselves in a matter that is not factually complex.  The tribunal is of the view that the positive obligations on the tribunal in section 29(1) of the Act to take all reasonable steps to ensure that the parties understand the legal implications of the assertions made in the proceeding provide appropriate support to parties who may be unfamiliar with discrimination law.    

[12]  The tribunal will be willing to re-consider the request after the compulsory conference if the complaint is unresolved after that conference in light of the submissions that argue it may be inappropriate for Ms Starkey to have to cross-examine the applicant due to the aggression directed towards Ms Starkey by Mrs O’Connor.