Paatsch v Qantas Airways Limited , Neal and Preston
[2010] QCAT 401
•18 August 2010
| CITATION: | Paatsch v Qantas Airways Limited , Neal and Preston [2010] QCAT 401 |
| PARTIES: Applicant | Lawrence Basil PAATSCH |
| v | |
| First respondent | QANTAS AIRWAYS LIMITED |
| Second respondent | Liz NEAL |
| Third respondent | Lyn PRESTON |
| APPLICATION NUMBER: | ADL043-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 18 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 18 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave not granted to respondents to be legally represented up to and including compulsory conference |
| CATCHWORDS : | LEAVE SOUGHT FOR LEGAL REPRESENTATION – section 43 of the Queensland Civil and Administrative Tribunal Act 2009 - anti-discrimination claim based on impairment discrimination at work – whether complex questions of fact or law |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
Lawrence Paatsch lodged a complaint under the Anti-Discrimination Act 1991 against the respondents in February 2009. Mr Paatsch complained that he had been subjected to discrimination at work on the basis of an impairment.
The first, second and third respondents have applied for leave to be legally represented in the proceeding and written submissions were filed in support of the application. Mr Paatsch, who is not represented in the proceedings, opposes the application by the respondents.
It is stated in section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) that parties in proceedings in this Tribunal are expected to represent themselves unless the interests of justice require otherwise.
Section 43 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……..
The respondents submitted in support of their application for leave to be legally represented that there are complex questions of law which were identified in their submissions as what are the genuine occupational requirements of Mr Paatsch’s position, whether the first respondent was required to provide special services to enable Mr Paatsch to perform his position, whether unjustifiable hardship would be imposed on the first respondent, whether the actions of the respondents were necessary to protect the health and safety of persons at work and whether the second and third respondents had intimidated Mr Paatsch.
It was submitted by the respondents that there were complex questions of fact identified as arising from certain factual developments since the complaint had been lodged. It was submitted that representation of the second and third respondents would minimise the risk of personal hostilities which could overshadow the usefulness of a compulsory conference and that all respondents had a common defence that could be more expediently put by a single representative than by the three respondents simultaneously.
The parties have not at this stage filed their respective contentions. From a perusal of the documents sent with the referral of this complaint from the Anti-Discrimination Commission, it is anticipated that the complaint will be based on allegations by Mr Paatsch that due to an impairment he had been treated less favourably in the allocation of work than a person without an impairment. In the documents forwarded by the Commission, the respondents had denied that their actions have breached the Anti-Discrimination Act 1991.
The Tribunal is not satisfied by the submissions of the respondents that there are complex questions of fact in this complaint. The facts appear to be somewhat narrow in scope: Mr Paatsch has an back injury, medical advice was provided limiting the activities he could safely perform, the position for which he was employed contains duties that cannot be safely performed due to the medical advice. Indeed, these facts appear not to be in dispute by any of the parties. Other issues such as what conduct is required by law from the respondents in response to Mr Paatsch’s injury are not questions of fact but are questions of how the law is to be applied.
The subsequent actions of Mr Paatsch or the respondents which have resulted in his resignation from his employment are not part of the factual basis of his complaint and are only relevant to the outcomes Mr Paatsch can seek should his complaint of discriminatory conduct be upheld by the Tribunal.
10. The Tribunal accepts that there may be complex questions of law to be raised by the parties in their contentions, particularly in relation to the issues foreshadowed by the respondents in their submissions. At a hearing the Tribunal is likely to be assisted in reaching its decision by having submissions on the law presented by legally qualified advocates. However, such a position does not inevitably lead to the granting of leave for legal representation at all stages of a proceeding.
11. The discretion given to the Tribunal when considering whether to grant leave to a party to be legally represented in a proceeding is regulated by the provision in section 43(1) that leave is granted when the interests of justice so require. Section 43(3) contains guidelines as to some factors the Tribunal may, but not must, take into account when deciding whether or not to grant leave. The likely presence of complex questions of law is one of those factors. The Tribunal has not been persuaded that the interests of justice require the respondents to be legally represented at the current stage of the proceedings.
12. It is in the interests of justice that complaints made under the Anti-Discrimination Act 1991 are deal with by the Tribunal in a way that is accessible, fair, just, economical, informal and quick.[1] To that end, the Tribunal, when established, was supported by legislation that places a requirement on the Tribunal to act in a manner that encourages the early and economical resolution of disputes including the use of alternative dispute resolution processes if appropriate and to ensure proceedings are conducted in an informal way that minimises costs to parties.[2]
[1] Section 3(b) of Queensland Civil and Administrative Tribunal Act 2009
[2] Section 4(b) and (c) of Queensland Civil and Administrative Tribunal Act 2009
13. The parties have been directed to attend a compulsory conference in this proceeding on 21 September 2010. It is an expectation of section 68(2) of the Act that the parties attend the compulsory conference in person. The conference will identify and clarify the issues in dispute, will promote settlement of the dispute and will identify questions of fact and law to be decided at the final hearing by the Tribunal.
14. The conference will be conducted by a lawyer who is a member of the Tribunal. The member will not make any decisions at the conference that determine any questions of law identified by the parties and accordingly the opportunity for the member to be assisted by input from a legal representative does not arise at a compulsory conference.
15. The Tribunal will not achieve the delivery of accessible, fair, just and economical justice consistent with the objects of the Act unless proceedings, including compulsory conference, are conducted in an informal way that minimises costs to parties. The Tribunal recognises that, while the granting of leave for legal representation will result in one or more of the parties incurring costs, in some cases it will nevertheless be in the interests of justice and essential for the delivery of a just and fair outcome that leave is granted for legal representation for all or for some stages of a proceeding. The question that the Tribunal has considered and has rejected is whether this case falls within this later category of cases.
16. There has been nothing raised in either the submissions of the respondents or in the documents forwarded by the Commission that has satisfied the Tribunal that the parties cannot themselves, with the assistance of the Tribunal member, identify and clarify the issues in dispute, promote a settlement of the dispute and identify what questions of law and fact are required to be determined at a final hearing of the complaint. The Tribunal has not been satisfied that granting leave for legal representation up to and including the stage of the compulsory conference will be required for the delivery of a just and fair outcome to the parties.
17. The Tribunal has been given the obligation by section 29 of the Act to take all reasonable steps to ensure each party to a proceeding understands the nature of the assertions made in the proceeding and the legal implications of the assertions. The member conducting the compulsory conference is under that obligation. The effect of the requirement in section 29 is to prevent any party from being disadvantaged by not having legal representation present at a compulsory conference when the interests of justice do not otherwise require that party to be legally represented.
18. The parties can instruct their lawyers to prepare the contentions or response to the contentions and can seek advice from their lawyers at any stage of the proceeding, including while the parties are attending a compulsory conference, without needing to seek the leave of the Tribunal to do so. The Act restricts parties from being represented in the proceedings by their lawyers unless representation is required in the interests of justice but does not otherwise interfere with the choice of a party to engage lawyers for support and advice in a Tribunal matter.
19. The respondents’ application for leave to be legally represented in the proceeding is refused. However the respondents can re-apply for leave to be legally represented for the final stage of the complaint to hearing in the event that the complaint is not settled at the end of the compulsory conference stage of the proceeding.
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