Pout v Canterbury Meats Pty Ltd, Kirkegaard and Stewart
[2010] QCAT 610
•30 November 2010
| CITATION: | Pout v Canterbury Meats Pty Ltd, Kirkegaard and Stewart [2010] QCAT 610 |
| PARTIES: | Aleasha Jayne POUT |
| v | |
| FIRST RESPONDENT | Canterbury Meats Pty Ltd |
| SECOND RESPONDENT | Rose KIRKEGAARD |
| THIRD RESPONDENT | Pauline STEWART |
| APPLICATION NUMBER: | ADL098-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 30 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 30 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for leave to be represented is refused |
| CATCHWORDS : | LEGAL REPRESENTATION – section 43 of the Queensland Civil and Administrative Tribunal Act 2009 – where complaint involves no complex questions of fact or law – where the interests of justice found not to require legal representation. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Aleasha Jayne POUT |
| RESPONDENTS: | John Merrell of Counsel |
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 23 November 2010 the respondents made an application to the tribunal seeking leave to be represented in this proceeding about a complaint made by Ms Pout against them under the Anti-Discrimination Act 1991. Two different applications had been filed by the respondents: one seeking leave for an industrial advocate to represent them and one seeking leave for counsel to represent them. Written submissions lodged on behalf of the respondents clarified that leave was being sought for them to be directly represented in the proceeding by counsel.
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……..
As the respondents are not entitled to be presented in the proceedings as of right under the provisions in section 43(2)(b)(i) to (iii) of the Act, they need to satisfy the tribunal that it is in the interests of justice that they are represented. The Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when deciding whether or not to give leave to a party to be represented in a proceeding.
The respondents in their submissions did not directly rely on the factors specified in section 43(3) but stated that they will be likely to encounter difficulties in defending themselves in respect of the complaints of direct and possibly indirect discrimination made against them and in respect of the complaint of an unlawful request for information. It was submitted that it would be in the interests of justice to grant leave for legal representation so the respondents could consider whether the facts as alleged amount to breaches of the Anti-Discrimination Act 1991, whether defences may apply under that Act, could consider the contentions of Ms Pout, could receive advice on the drawing of the contentions to be filed by the respondents and to narrow down the issues at the compulsory conference.
The respondents concede that the facts of the case may be known by all the parties and acknowledged that the tribunal is not bound by the rules of evidence and that the tribunal must act with as little formality and technicality as a proper consideration of the matters permit.
According to the documents referred to the tribunal from the Anti-Discrimination Commission, Ms Pout alleges in her complaint that the respondents unlawfully discriminated against her at her workplace based on an impairment and unlawfully requested information from her at the workplace. It appears that Ms Pout has alleged that on 3 August 2009 one of the respondents made a statement that the employer had a right to know of Ms Pout’s mental illness.
Ms Pout further alleges that in July 2009 one of the respondents referred to her appearance in rude terms and had approached another worker to ask whether that other worker was aware that Ms Pout suffered from a mental illness and that Ms Pout had conjured up in her mind, due to her mental illness, complaints which had been lodged with her employer.
Ms Pout has not yet filed her contentions. She cannot introduce a new complaint in her contentions but it is possible that she will amplify the facts on which her complaint is based. However, nothing contained in the documents referred from the Anti-Discrimination Commission suggests that this complaint is likely to involve complex questions of fact or law. Ms Pout has not sought leave to be legally represented.
10. The proceeding is likely to require the tribunal to make findings of fact based on conclusions made about the credit worthiness of the parties and their witnesses and for the tribunal to apply the law to those findings of fact. It is acknowledged by the tribunal that the respondents, or the applicant for that matter, are no more knowledgeable about the law than members of the general public. However such a position arises about litigants in the whole range of matters dealt with by the tribunal and is not unique to litigants involved in anti-discrimination complaints.
11. The legislature provided that it was an object of the Act that the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal must ensure that proceedings are conducted in an informal way that minimises costs to parties. To that end, the tribunal is not bound by the rules of evidence but must observe the rules of natural justice and must act fairly and according to the substantial merits of the case.
12. Unlike jurisdictions that conduct proceedings more formally, the tribunal is under a positive obligation to ensure that each party to a proceeding understands the practices and procedures of the tribunal and the nature of assertions made in the proceedings and the legal implications of the assertions.
13. The tribunal deals with matters involving review of administrative decisions, building disputes, body corporate disputes, consumer and trader disputes and a wide range of other matters involving complex questions of law and quite frequently large amounts of money. The starting point in all such cases is the expectation that the parties represent themselves and that the tribunal must ensure that the parties understand what is asserted against them in the proceedings. Inherent in the Act is the premise that it is in the interests of justice that parties can seek resolution of their disputes in a jurisdiction that is accessible to them, ensures a fair hearing and is informal.
14. It is in the context of these provisions and taking into account the objects of the Act that the tribunal must consider whether in each case the interests of justice require a party to be represented in a proceeding. In this context, the consideration to be undertaken by the tribunal extends beyond the issue of whether a particular party would perceive a relative disadvantage from not being represented to the wider issue of implementing the objects of the Act both for the benefit of the parties and the community in general.
15. The respondents have not in their submissions identified factors that have persuaded the tribunal that their circumstances as litigants in this case require the presence of legal representatives when litigants in general in the tribunal can expect to be afforded a far and just outcome without legal representation. The tribunal does not consider that it can only reach a fair and just outcome through assistance from a legal representative who can provide input to the tribunal on the interpretation of the law.
16. The respondents can access legal expertise at any stage in the preparation of their case and in the preparation of documents without requiring leave under section 43 of the Act. The respondents are not prevented from presenting their case formulated with legal assistance but they are prevented by the Act from being represented by their lawyer unless the interests of justice require otherwise.
17. As the tribunal is not convinced that the interests of justice require the respondents to be legally represented in this proceeding, the application for leave under section 43 is refused.
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