Rushton v State of Queensland (No 2)
[2011] QCAT 440
•6 July 2011
| CITATION: | Rushton v State of Queensland and Anor (No 2) [2011] QCAT 440 |
| PARTIES: | Caroline Rushton |
| v | |
| State of Queensland David Muller |
| 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: | 6 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | State of Queensland is given leave to appear in the proceeding by a government legal officer. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where one party is the State – where leave sought for the State to appear by a government legal officer Queensland Civil and Administrative Tribunal Rules 2009, r 53 |
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
Caroline Rushton, an administrative assistant employed by the State of Queensland at Lotus Glen Correctional Centre, became distressed as a result of being required to undertake a suicide prevention training program as part of her employment duties. She alleges that the requirement by her employer for her to undertake the training program on 28 April 2009 constituted a contravention of the Anti-Discrimination Act 1991.
The State of Queensland applied for leave to appear by a government legal officer under rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009. The application was opposed by Ms Rushton. She submitted that granting leave for the State of Queensland to appear by a lawyer would result in the other respondent, Mr Muller, not being required to speak on his own behalf in the proceeding.
That concern, which is clearly set out in her submissions, is somewhat misguided. QCAT has refused leave for Mr Muller to be legally represented in this proceeding up to and including the compulsory conference. He must appear in person and take an active part in the proceeding. If he intends to look to his employer for some form of indemnity in the proceeding, that is a private matter between the respondents. It does not relieve Mr Muller, as a party, from the obligation to take part personally in all aspects of the proceeding. This is particularly pertinent to his attendance at, and genuine participation in, the compulsory conference.
Ms Rushton submitted that she would be disadvantaged by the State appearing by a lawyer when she is not knowledgeable about the law and about anti-discrimination law in particular. Ms Rushton submitted that the member who will conduct the compulsory conference should be adequately equipped to manage the process without having one party appearing by a lawyer. Those submissions require some consideration and the starting point is to analyse the basis on which leave was requested by the State.
The State of Queensland is not a natural person and must of necessity appear in all aspects of the proceeding by a natural person. The State could have chosen to appear by the Director-General of the Department of Corrective Services or by an Executive Director of a division of that Department or by a senior Human Resource Manager. The choice of person is a decision for the State. QCAT’s only role in approving who appears for a State Agency is when the chosen person is an Australian legal practitioner or a government legal officer.
The State, when making submissions for leave to appear by a government legal officer, relied on the practical difficulties that the State would experience if the State had to appear by a non legally trained person. It was submitted that training would be required as to the conduct of a conference and to familiarise the non legal officer with the particulars of the complaint and the significance of those particulars in the context of the anti-discrimination jurisdiction.
These submissions were not persuasive as they ignore the purpose of a compulsory conference in QCAT. Section 69 of the Queensland Civil and Administrative Tribunal Act 2009 sets out the purposes of conference at QCAT: to identify and clarify the issues in dispute, to promote a settlement of the dispute, to identify the questions of fact and law to be decided by QCAT and to make directions about the proceeding. The primary focus is on the identification of what is in dispute and then on resolving that dispute.
That process can only be effective when the persons directly involved in causing the dispute are present and directly involved in trying to resolve their own dispute. The conference is conducted as a practical exercise of dispute resolution powers focussed on the persons who had been directly concerned and is not a forum to decide any legal issues. The legal issues may at times provide the context in which negotiations take place or provide the basis for “reality testing” but they are rarely central to a conference process.
It is axiomatic that a person chosen to appear at a compulsory conference for the State must have knowledge of the issues in dispute. This would be the case regardless of whether a government legal officer is chosen or a Human Resource Manager or the Director General of the Department. It is to be expected that some process of familiarisation would be required except in those cases where the person chosen to appear for the State is already a person involved in the dispute.
[10] The persons who caused the dispute must be present at the conference to assist with a genuine attempt at dispute resolution but the State can appear by someone else if it chooses. The person appearing for the State does not necessarily have to be the same as one of the persons who are part of the dispute. The person appearing for the State must have access to authority to settle the dispute on behalf of the State. This need arises when the persons directly involved in the dispute are unlikely to have that authority.
[11] Appearance for the State is the means by which a non corporal entity materialises at a conference or hearing. The person appearing for the State provides authority for the matter to proceed or to settle. If the person chosen cannot provide the required authority, then the conference system at QCAT is at risk of unwarranted disruption that may in appropriate cases be dealt with by a costs order made against the State.
[12] The role of a person appearing for the State should not be confused with legal representation. Persons in the role of legal representatives of the State would not themselves have authority to proceed or settle but they must necessarily seek instructions from their principal at all times.
[13] Based on this analysis, a difference can be appreciated between the role of a person appearing for the State and the role of a lawyer representing the State in a proceeding. The legal skills of a person appearing for the State should be no more than incidental to the role.
[14] The submissions made on behalf of the State asserted that the Department should be permitted to determine which of its employees are most suited to appearing at a compulsory conference given the position descriptions and functions of its workforce. I considered that submission to be most persuasive when considering whether leave should be granted under rule 53. I agree with the proposition that the State should have the means of choosing the most appropriate person to appear for the State from its large workforce based on criteria it considers relevant.
[15] Rule 53 unlike section 43 of the Queensland Civil and Administrative Tribunal Act 2009 does not specify any factors that QCAT may take into account when exercising its discretion. It is reasonable that QCAT should take into account the objects of the Act and consider whether granting leave would assist it to achieve those objects in any given case.
[16] I was satisfied that granting leave to the State to appear by the officer of its choice would be consistent with the delivery of justice in a fair and just manner. I was not satisfied by the submissions made by Ms Rushton that denying the State of its choice of officer would be fair or just. Granting leave in this case to the State does not relieve Mr Muller from the obligation to participate in person and does not relieve the State from the obligation to authorise the person who appears for it at the conference with all the powers necessary to achieve the statutory purposes in section 69.
[17] Based on these reasons, leave was granted for the State of Queensland to appear by a government legal officer.
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