Rushton v State of Queensland
[2012] QCAT 54
•23 January 2012
| CITATION: | Rushton v State of Queensland and Anor [2012] QCAT 54 |
| APPLICANT: | Caroline Rushton |
| v | |
| RESPONDENT: | State of Queensland (First Respondent) David Muller (Second Respondent) |
| APPLICATION NUMBER: | ADL108-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 23 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave is granted for the respondents to be legally represented in this proceeding. |
| CATCHWORDS: | ANTI-DISCRIMINATION – leave sought for parties to be legally represented – where complex questions of law 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
Caroline Rushton has asserted that at the time of her complaint she was a person with an impairment and that David Muller, her former manager, contravened the Anti-Discrimination Act 1991 by treating her less favourably at work than a person without an impairment. She also complains that Mr Muller acted towards her in a way that constituted indirect discrimination under the Anti-Discrimination Act 1991.
Ms Rushton’s employer at the time of the complaint, the State of Queensland, is also a respondent to the complaint. It is not clear from her contentions whether Ms Rushton is contending that her employer should be held vicariously liable for the actions of Mr Muller or whether it is being contended that her employer should be held directly liable for not responding satisfactorily to a grievance made to her employer about Mr Muller’s conduct.
The respondents have sought leave to be legally represented in this proceeding which has reached the hearing stage. I had earlier refused to grant leave to the respondents to be legally represented to the stage of the proceeding up to and including the compulsory conference.[1] At that time neither the contentions of the parties or their witness statements had been filed. I foreshadowed that the parties could re-apply for leave in the event that the complaint remained unresolved after the compulsory conference.
[1] Rushton v State of Queensland & Muller [2011] QCAT 17.
I have now had the benefit of reading the contentions and any statements of evidence filed prior to or on 23 January 2012.
Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.[2] QCAT has an unfettered discretion when determining whether to grant a party leave to be represented. Section 43 in the QCAT Act sets out some factors that QCAT may consider as supporting the giving of leave when exercising that discretion. One such factor is the likely presence of complex questions of fact or law.[3]
[2] Section 43(1) of the QCAT Act.
[3] Section 43(3)(b) of the QCAT Act.
The facts asserted in the complaint by Ms Rushton are relatively narrow in scope and are not complex. The facts are in dispute. Ms Rushton will call three witnesses to support her complaint. It is likely that Ms Rushton and her witnesses will be cross-examined extensively in view of the dispute over her version of events. There appears to be only one witness to be called by the respondents apart from Mr Muller.
The complaint is based on both direct and indirect discrimination. The respondents contend that the complaint of direct discrimination is misconceived and lacking in substance. The respondents dispute the complaint of indirect discrimination and have adduced evidence that seeks to establish that any relevant term imposed on Ms Rushton’s employment was reasonable in the context of a correctional centre. There is likely to be considerable argument over the application of the law to the facts in established this case.
There is also likely to be considerable argument about the basis on which the State of Queensland is sought to be liable: Ms Rushton must establish either vicarious liability on the part of Mr Muller’s employer or direct liability for the actions of other employees involved in the handling of her grievance. It is not yet clear how Ms Rushton intends to establish that the State of Queensland is liable for contravention of the Anti-Discrimination Act 1991. Again there is likely to be considerable argument over the application of the law to the contention that the State of Queensland is liable in some way in this case.
After reading the contentions of the parties and the statements of evidence filed prior to or on 23 January 2012, I formed the conclusion that there are likely to be complex questions of law to be decided by QCAT. It would assist QCAT to reach the correct decision on the law for submissions on the law to be made by legal practitioners.
QCAT has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[4] Having the issues that need to be determined identified at the outset of the hearing will assist the tribunal to conduct the hearing in a manner that is fair, just, economical and quick. Containing the evidence presented at the hearing to those relevant issues will also achieve those statutory objects. The presence of legal practitioners should in my view assist in the identification of the issues and in the identification of evidence relevant to those issues.
[4] Section 3(b) of the QCAT Act.
I am satisfied that for the reasons discussed it would be in the interests of justice to grant the request of the respondents for leave to be legally represented in this proceeding in the hearing stage.
In doing so, Ms Rushton’s interests are not adversely affected as it is in her interests for the tribunal to have available to it submissions on complex issues of law that have to be determined and for the tribunal’s time and attention at the hearing to be focussed on relevant issues and evidence.
QCAT is subject to statutory safeguards to ensure that parties are treated fairly. The tribunal must act fairly and according to the substantial merits of the case.[5] 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.[6] These obligations ensure that parties are not disadvantaged by the lack of legal representation.
[5] Section 28(2) of the QCAT Act.
[6] Section 29(1)(a) of the QCAT Act.
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