Rushton v State of Queensland and Muller
[2011] QCAT 17
•4 January 2011
| CITATION: | Rushton v State of Queensland and Muller [2011] QCAT 17 |
| APPLICANT: | Caroline RUSHTON |
| v | |
| FIRST RESPONDENT: | State of Queensland |
SECOND RESPONDENT: | David MULLER |
| APPLICATION NUMBER: | ADL108-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 4 January 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 4 January 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave is not granted to the Respondents to be legally represented in this proceeding up to and including the compulsory conference. |
| CATCHWORDS : | ANTI-DISCRIMINATION – LEGAL REPRESENTATION – State Agency – no complex issues of law or fact – one party opposed leave |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Caroline RUSHTON on her own behalf |
| RESPONDENT: | Jody CROSGRIVE, senior principal lawyer for Crown Solicitor appearing for the respondents. |
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 20 October 2010 the Anti-Discrimination Commissioner Queensland referred to the tribunal a complaint by Caroline Rushton that State of Queensland and David Muller had breached the Anti-Discrimination Act 1991 by unlawfully discriminated against her on the grounds of impairment in her work.
On 29 November 2010 the tribunal made directions that the respondents were to file an application for leave to be represented in the proceeding by 10 December 2010 to be decided on the papers not before 24 December 2010.
An application seeking leave to be represented was filed by the respondents on 7 December 2010. The application is opposed by Ms Rushton who is representing herself in the proceeding.
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides 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……..
According to section 43(2) (b) (iv) of the Act, the respondents will require the leave of the tribunal to be represented as these parties do not come within the categories of parties who have an as of right entitlement to be represented. The tribunal, when determining whether to grant leave, must consider the interests of justice and, in addition, the Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account.
One such factor is whether the party is a State Agency. The Act is silent as to how the presence of a State Agency in a proceeding would predicate the tribunal into determining that the interests of justice require that party to be represented. It has been mooted that this specific factor may have more immediate relevance in the review jurisdiction of the tribunal.[1] This proceeding does not involve a review of any decision made by the first respondent as a State Agency.
[1] State of Queensland v Greenland [2010] QCATA 91
The first respondent is brought as a party into this proceeding on the contention that the first respondent is vicariously liable as employer for the actions of the second respondent. In that regard the first respondent does not hold a position different from any other employer to whom vicarious liability is being sought to be attributed for the allegedly unlawful actions of its employee. The tribunal cannot discern any facts in this case that give rise to a finding that the interests of justice require the first respondent to be represented merely due to it being a State Agency.
It was also argued that the proceeding involves complex questions of both law and fact. The complaint is based on specified actions that took place on 28 April 2009. After perusing the referral report from the Anti-Discrimination Commission, the tribunal is unable to ascertain any particular complexity in the facts or law in this case. The second respondent has denied to a departmental investigation that the version of events as alleged by Ms Rushford is accurate. That denial merely brings credibility of the parties into play: it does not inevitably mean that the facts are complex requiring the parties to be represented in order for the interests of justice to be met.
10. The respondents have submitted that there will be some complexity involved in how the requirements of the Anti-Discrimination Act 1991 are applied to the facts of this case. In particular the respondents have submitted that determinations as to whether the actions of the first and second respondents were reasonable, whether any adjustments were required for Ms Rushton to comply with the requirements of her employer and how to quantify any loss sustained by Ms Rushton are complex issues.
11. A great deal of evidence will be needed to be adduced by Ms Rushton if her complaint of unlawful discrimination is to be upheld. She based her complaint to the Commission on both direct and indirect discrimination. It is the role of the tribunal to determine if the evidence she adduces is capable of supporting her complaint. If the tribunal makes findings that the requirements imposed on Ms Rushton were not reasonable or that she was treated unfavourably due to an impairment, the application of the law to those findings is no more complex than the position found in other anti-discrimination cases.
12. The primary rationale of the Queensland Civil and Administrative Tribunal Act 2009 is for parties to represent themselves in proceedings before this tribunal including in anti-discrimination complaints. The tribunal is well aware that some cases involving anti-discrimination complaints are complex either as to their facts or in the application of the law. However, the information currently before the tribunal does not result in a finding that this case is within the complex category of anti-discrimination cases. The tribunal is not convinced that any satisfactory ground has been established in this case for a finding that the interests of justice require the respondents to be represented at this stage of this anti-discrimination proceeding.
13. The respondents have argued that the outcome of this complaint may have a significant precedent value for the first respondent’s operations across some 13 correctional centres involving over 5,500 prisoners in its custody. It was contended that the tribunal would gain benefit from the presence of legal representatives in the case to present the issues with care and precision.
14. While this argument had some initial attraction, the tribunal found that submissions made by Ms Rushton responded very effectively to this argument. By way of background, the complaint documentation stated that Ms Rushton occupied an administrative position with no contact with offenders in the correctional centres. Ms Rushton stated that in her complaint she does not seek to undermine the effectiveness of the suicide prevention programs of the first respondent in relation to the various correctional centre inmates. Rather she complains that she was not provided with a safe environment when she undertook the suicide prevention training due to the presence of an impairment in her own personal circumstances.
15. The precedent value of a finding in favour of her complaint will result in the first respondent being required, when dealing with its employees, to comply with the Anti-Discrimination Act 1991: it will have little or no direct effect on the first respondent’s management of the inmates in its correctional centres. After considering all the submissions made on this point, the tribunal was not satisfied that the issues in this case could only effectively be presented with the assistance of legal representatives instructed by the respondents.
16. However the tribunal recognises that with the filing of statements of evidence the factual case or the issues of law may develop complexity that is presently not apparent from the case set out in the referral documents. For that reason the refusal of leave for the respondents to be legally represented applied up to and including the compulsory conference. If the parties are unable to reach a resolution of the complaint at that conference, the member conducting the conference can make a further determination as to whether to grant leave for the parties to be legally represented if an application is re-made at that stage.