Puri v Association for Childhood Language and Related Behaviour
[2011] QCAT 303
•1 June 2011
| CITATION: | Puri v Association for Childhood Language and Related Behaviour and Ors [2011] QCAT 303 |
| PARTIES: | Neeti Puri |
| v | |
| Association for Childhood Language and Related Behaviour Diane Drew Cae Ashton |
| APPLICATION NUMBER: | ADL021-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 1 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave is granted to the respondents to be legally represented in the proceeding. |
| CATCHWORDS: | ANTI-DISCRIMINATION – in the interests of justice that parties are legally represented Queensland Civil and Administrative Tribunal Act 2009, s 43 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Neeti Puri has made a complaint that she has been unlawfully discriminated against by the Association for Childhood Language and Related Behaviour, Diane Drew and Cae Ashton. The complaint has been referred to this tribunal for determination.
The respondents want to be legally represented in this proceeding. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise.
According to section 43(2)(b)(iv) of the Act, the respondents will require the leave of the tribunal to be represented as they do not have an as of right entitlement to be represented. The tribunal when determining whether to grant leave must consider whether it is in the interests of justice that the parties are represented.
The Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when considering a request by a party for leave to be represented. One of those factors is whether the proceeding is likely to involve complex questions of fact or law.
In their submissions the respondents contended that this proceeding is a complex matter from both a factual and legal perspective. It was contended that the complaint involves at least five different allegations of discrimination on the basis of pregnancy or impairment and victimisation against three respondents. It was contended that there are numerous factual issues in dispute, some of which will require a consideration of the performance of Ms Puri in her employment and whether she was meeting the requirements for full teacher registration with the Queensland College of Teachers.
It was contended that the respondents deny the allegation that pregnancy was a substantial reason for the criticism of Ms Puri’s work and to do so the respondents submit that they will need to present evidence based on the meaning of “substantial reason” and how those words have been dealt with in previous decisions. The respondents also contend that there are complex issues involved in responding to the allegation that they have indirectly discriminated against Ms Puri.
It was contended by the respondents that the involvement of legal representation will assist the tribunal in this case to deal with the matter in a more efficient and timely manner in accordance with section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009.
Ms Puri opposed the tribunal granting leave for the respondents to be legally represented. She submitted that permitting the respondents to be legally represented will give an unfair advantage to them and will not be in the interests of justice. She submitted that the matter was not complex from a factual or legal perspective. She further submitted that the presence of lawyers for the respondents would not be economical for both parties and will not help the tribunal in meeting its statutory objectives.
Ms Puri filed her contentions at the same time as she filed her written response to the application by the respondents seeking leave to be legally represented. Her contentions are contained in 22 pages under headings such as background, discrimination in work area after declaration of pregnancy, section 15: discrimination in work area, paid maternity leave application, pre-arrangements for sports day, arrangements for signing of QCT recommendation report, sports day 30 April 2010 – direct discrimination, section 11: meaning of indirect discrimination, email exchange with Ms Drew after the sports day – victimisation, section 130 – meaning of victimisation, section 131 – victimisation continues even if proceedings etc. do not, discrimination in the work area by Ms Drew, authorising and gaining full registration with Queensland College of Teachers, discrimination by employer for QCT recommendation report, section 22 – discrimination by qualifying body in qualification area, appeal to and decisions by QCT, vicarious liability, section 132 Act’s vicarious liability purpose and how it is to be achieved, section 122 vicarious liability.
[10] After reading the referral documents and Ms Puri’s detailed contentions it is quite apparent that this proceeding is likely to involve complex questions of law and fact. It will assist the tribunal to have input from lawyers in the case on the complex issues as they arise for consideration. It is in the interests of justice that the tribunal has this type of input so that the tribunal can deal with the matter in a way that is economical and just by having the complex issues examined with the benefit of submissions at the hearing on case law authority and on the interpretation of the legislation.
[11] The tribunal rejects the contention that granting leave for legal representation will give an unfair advantage to the respondents over Ms Puri. The tribunal does not consider that the situation where one party is represented while another party is not gives rise to unfairness. The legislation setting up the tribunal put into place a series of safeguards to ensure that parties are treated fairly. The tribunal must act fairly and according to the substantial merits of the case.[1] The tribunal has a positive obligation to ensure that each party understands the practices and procedures of the tribunal and the nature of assertions made in the proceeding and the legal implications of the assertions.[2] The tribunal must ensure as far as is practicable that all relevant material is disclosed to the tribunal to enable it to decide the proceeding.[3]
[1] Section 28(2) of the Queensland Civil and Administrative Tribunal Act 2009.
[2] Section 29(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009.
[3] Section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009.
[12] It was appropriate for leave to be granted in this case for the respondents to be legally represented in the proceeding.
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