Palmer v Department of Education and Training
[2017] QCAT 380
•9 November 2017
CITATION: | Palmer v Department of Education and Training [2017] QCAT 380 |
PARTIES: | Kirsti Palmer |
| v | |
| Department of Education and Training (Respondent) | |
APPLICATION NUMBER: | GAR218-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 2 November 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
DELIVERED ON: | 9 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Department of Education and Training is granted leave to be represented by Crown Law in this proceeding. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party –whether interests of justice require leave to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 43 |
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
On 3 October 2017, the Department of Education and Training (the Department) lodged an application to be legally represented in this proceeding by Crown Law.
Ms Palmer is the mother of a child seeking enrolment at the Brisbane State High School. In her application lodged with the Tribunal, she seeks to review a decision made by the school’s executive principal as to whether the requirements for enrolment as set out in the school’s Enrolment Management Plan were met.
The effect of s 43 of the QCAT Act is that parties in proceedings in this Tribunal are to represent themselves unless the interests of justice require otherwise.
Section 43 relevantly 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.
…
In accordance with s 43(2)(b)(iv), the Department of Education and Training requires the leave of the Tribunal to be legally represented as it does not satisfy s 43(2)(b)(i) to s 43(2)(b)(iii).
The Tribunal’s discretion when considering whether to grant leave for a party to be represented is exercised in the context of the requirement to comply with the interests of justice as set out in s 43(1), as well as the additional factors set out in s 43(3).
The Department is a State Agency.
In its written submissions, the Department contends that the case is likely to involve complex questions of law. It also contends that, if the Tribunal does have jurisdiction to hear this matter, there will be potential implications for the use and content of Enrolment Management Plans generally. A decision by the Tribunal in this case is likely to set a precent on how similar matters are considered in the future.
In her written submissions, Ms Palmer referred to a number of decisions by the Tribunal in which leave to be legally represented was not granted to a State Agency. She contends that the issues of law and fact are not complex, and that she would be disadvantaged if the Department were legally represented.
I accept that the use and content of Enrolment Management Plans is a matter of public importance and interest. The objects of the QCAT Act, as set out in s 3, include “to promote the quality and consistency of tribunal decisions”. I note that the role of the Department in an administrative review proceeding, as set out in Practice Direction No 3 of 2013, is:
…to use their best endeavours to assist the Tribunal so it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision-maker’s role is not adversarial.
I am persuaded that it is in the interests of justice that the Department, as a State Agency, is permitted to be represented by Crown Law. Granting leave in this case where there is an important issue of public interest will promote the objects of the QCAT Act in ensuring the quality of tribunal decisions and the delivery of an outcome that is fair and just to the parties.
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