Parkes v S&S Webster Investments Pty Ltd
[2012] QCAT 190
•11 April 2012
| CITATION: | Parkes v S&S Webster Investments Pty Ltd and Anor [2012] QCAT 190 |
| PARTIES: | Peter Parkes (Applicant) |
| v | |
| S&S Webster Investments Pty Ltd trading as Kangaroo Bus Lines Martin Creek (Respondents) |
| APPLICATION NUMBER: | ADL132-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 11 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave is not granted to the parties to be represented up to and including the compulsory conference. |
| CATCHWORDS: | ANTI-DISCRIMINATION – parties sought leave to be represented – where no complex questions of fact or law – where representation not found to be required in the interests of justice Queensland Civil and Administrative Tribunal Act 2009, s 43 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
After a visit to Australia Zoo with his family, Mr Parkes wanted to catch a bus home. He had missed the 615 bus leaving from the Zoo that could have taken him directly to Maroochydore and so he decided to take a 649 bus to the Landsborough railway station from where he could catch the next 615 bus to Maroochydore. When the 649 bus arrived, he asked the driver where the bus was going and, according to Mr Parkes, after the driver’s brief and rather unhelpful response, the bus drove off leaving Mr Parkes and his family behind.
A stranger managed to stop the bus at the entrance to the Zoo as it was obvious that the Parkes family wanted to catch that bus. Mr Parkes, who uses an electric powered wheelchair for mobility, alleges that the driver spoke to him in a rude manner and reluctantly put down the ramp to allow Mr Parkes to access the bus. Mr Parkes alleges that when he left the bus at the railway station, the driver said further words that humiliated Mr Parkes. Mr Parkes complains that he was subjected to unlawful discrimination by the driver and the bus company on the basis of impairment.
The parties sought leave to be represented in this proceeding at QCAT. Section 43 of the QCAT 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 represented.
It was submitted that there was likely to be complex questions of fact or law involved in this proceeding. The facts of the case are of limited scope and relate to a single incident occurring between Mr Parkes and the driver employed by the bus company. The facts as asserted hold no complexity.
It may be that the respondents will deny that the facts have been correctly stated by Mr Parkes. A dispute over the facts will require a determination to be made between the differing versions but that exercise in itself will not be a complex one when the scope of the facts appears to be contained to a single incident.
Applying the law to facts identified in anti-discrimination cases can be complex. For that reason it would in some cases be in the interests of justice for parties to be represented. It is one way in such cases that QCAT could seek to achieve compliance with its statutory obligations in sections 28 and 29 of the QCAT Act. This position is particularly pertinent when a case is at the stage of a final hearing and when a final decision on the merits of a case is to be made. It is not as pertinent when the proceeding is at the stage prior to the holding of a compulsory conference.
It is a core statutory function of QCAT to ensure that proceedings are conducted in an informal way that minimises costs to parties and that encourages the early and economical resolution of disputes.[1] It is the role of QCAT to resolve disputes between parties and if appropriate to achieve that outcome through alternative dispute resolution processes. It is in the interests of justice that QCAT implements those processes with the aim of parties being directly involved in attempts to resolve their own disputes.
[1] Section 4(b) and (c) of the QCAT Act.
The tribunal has directed the parties to participate in a compulsory conference under section 67 of the QCAT Act. The purpose of such a conference is to clarify the issues in dispute, to identify any questions of fact and law that have to be decided by QCAT and to promote a settlement of the dispute.[2] The tribunal actively promotes resolution of disputes at these conferences by focusing on practical solutions that have meaning for the parties. No legal issues are decided at a conference although the parties can come to some mutual agreement on legal issues if they want to do so.
[2] Section 69 of the QCAT Act.
QCAT must deal with matters in a way that is accessible, fair, just, economical, informal and quick.[3] The tribunal meets this obligation by requiring the persons who attend the conference to have knowledge of the circumstances of the complaint and to have the ability to resolve the complaint. That aim is best achieved by the parties being directly involved in the process and by directly contributing to an outcome.
[3] Section 3(b) of the QCAT Act.
The tribunal was not convinced by the submissions that the presence of representatives at the conference stage would assist with the early resolution of the dispute. A conference requires focussed discussion of the issues by the persons who had been directly involved in the matters in dispute.
Leave was not granted to the respondents for legal representation up to and including the compulsory conference as the tribunal was not convinced that the interests of justice required the respondents to be legally represented at the conference. The submissions did not satisfy me that a departure from the requirement that parties should represent themselves at QCAT should be made at this stage of the proceeding. Another application for leave can be made for the hearing stage of the proceeding if the dispute was not able to be resolved at the conference.
Mr Parkes had sought leave to be represented by a person who is not an Australian legal practitioner. Under section 43(4) of the QCAT Act a party cannot be represented in a proceeding by a person who is not an Australian legal practitioner unless the tribunal is satisfied that person is an appropriate person to represent the party.
Mr Parkes did not provide written submissions, as directed by the order made on 12 March 2012, in support of his application for leave to be represented by Peter Yeo. When followed up by the tribunal registry, Mr Parkes submitted that Peter Yeo was a good friend of his, is an expert in the anti-discrimination field, he knows well the workings of QCAT and he uses a powered wheelchair for mobility.
[14]I was satisfied that Mr Parkes as well as the respondents can fairly participate in the conference process guided by a QCAT member without having a representative present and involved in the process. Any of the parties can obtain advice, legal or informal, about the options for resolution of the dispute before the conference takes place. Leave from QCAT is not required in order for the parties to obtain legal advice or legal assistance with documentation at any stage of the proceeding.
The information provided by Mr Parkes did not satisfy me that any departure from the requirement that parties should represent themselves at QCAT should be made at this stage of the proceeding. It had not been established that the interests of justice required Mr Parkes to be represented by Mr Yeo or by any other person at this stage. For the same reasons set out in paragraphs 6 to 10 leave was refused for Mr Parkes to be represented up to and including the compulsory conference.
Mr Parkes is able to re-apply for leave for Mr Yeo to represent him if his complaint is not resolved at the conference in the same manner as the respondents can re-apply for leave to be legally represented in the latter stage of this proceeding.
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