Schwedler v Secretary, Department of Health, Sydney Local Health District

[2023] NSWCATAD 300

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Schwedler v Secretary, Department of Health, Sydney Local Health District [2023] NSWCATAD 300

Hearing dates:

On the papers

Date of orders:

13 November 2023

Decision date:

13 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

1. A hearing in relation to the application for the applicant to be represented by Ms Gail Schwedler is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. Leave for the applicant to be represented by Ms Gail Schwedler is granted.

3. The matter is set down for directions on 12 December 2023.

Catchwords:

PRACTICE AND PROCEDURE – s 45 of the Civil and Administrative Tribunal Act – exercise of the Tribunal’s discretion to permit or refuse leave to a lay advocate to appear for a party

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Damjanovic v Maley [2002] NSWCA 230

Department of Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17

Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164

Haddad v Chief Commissioner of State Revenue (Unreported) 11 November 2009 (NSWADT)

Macedo v Chief Commissioner of State Revenue [2015] NSWCATAD 193

Marshall v Dental Décor Pty Ltd t/as Westmead Gentle Dental [2010] NSWADT 173

Texts Cited:

None Cited

Category:

Procedural rulings

Parties:

Thomas Schwedler (Applicant)
Secretary, Department of Health, Sydney Local Health District (Respondent)

Representation:

Self-represented (Applicant)
J Rex, Solicitor, Sydney Local Health District (Respondent)

File Number(s):

2023/00260344

Publication restriction:

None

REASONS FOR DECISION

1. The Applicant has filed an application under the Anti-Discrimination Act 1977 as against the Respondent.

2. On 23 September 2023, the Applicant lodged a “Notice of representation by legal practitioner or agent” form naming his wife, Ms Gail Schwedler as his agent for the purposes of representing him in these proceedings. The Applicant also lodged a “Request for language or disability support”.

3. On 26 September 2023, at a directions hearing, the Respondent indicated that it opposed the granting of leave for the Applicant to be represented by his wife. At that directions hearing, the Tribunal made directions for the parties to provide submissions and supporting documents in relation to the application for leave for the Applicant to be represented by an agent (Agent Application). By consent, the application was to be determined on the papers. In that regard, I am satisfied in the circumstances, that it is appropriate to deal with the Agent Application on the papers, as a hearing would amount to further unnecessary costs. I have made an order under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Legislation and authorities

4. Section 45 of the NCAT Act provides:

45 Representation of parties

(1) A party to proceedings in the Tribunal:

(a) has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b) may be represented by another person only if the Tribunal grants leave:

(i) for that person to represent the party, or

(ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.

(3) The Tribunal may at its discretion:

(a) grant or refuse leave under subsection (1)(b), and

(b) revoke any leave that it has granted.

5. Clause 9 of sch 3 of the NCAT Act provides:

Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.

Note—

The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.

…

6. Ms Schwedler is not an Australian Legal Practitioner and leave is therefore required for her to appear as a representative on the applicant’s behalf.

7. In dealing with an application under s 45 of the NCAT Act, the Tribunal is required to have regard to Rule 32 of the Civil and Administrative Tribunal Rules 2014. It is in the following terms –

32 Granting and revocation of leave for a person to represent party

(1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to:

(a) such of the following circumstances as it considers are relevant to the proceedings:

(i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal,

(ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings,

(iii) whether the proposed representative is vested with sufficient authority to bind the party, and

(b) any other circumstances that it considers relevant.

(2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that:

(a) the party no longer consents to the person representing the party, or

(b) the person applied for leave to represent that party without the consent of the party, or

(c) the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party’s representative, or

(d) the party is, or has become, incapable of instructing the representative, or

(e) any other grounds are present that the Tribunal considers sufficient to justify the revocation.

8. As observed in Macedo v Chief Commissioner of State Revenue [2015] NSWCATAD 193 at [8]

Rule 32 does not in any way affect the scope of the discretion given to the Tribunal under s 45 of the Act but provides guidance as to what considerations need to be taken into account under s 45 of the Act to grant leave or revoke leave previously granted.

9. In Gallagher v Northern NSW Local Health District [2023] NSWCATAD 164, Principal Member Simon summarised the decision in Damjanovic v Maley [2002] NSWCA 230 as follows:

Damjanovic v Maley [2002] NSWCA 230 involved an appeal from a decision made in the District Court, refusing leave for Ms Vukic, a lay representative, to appear before the Court pursuant to s 43(1) of the District Court Act 1973 (NSW). Stein JA, with whom Mason P and Sheller JA agreed, set out principles from a number of cases at [37] – [68] of the judgment and relevantly summarised the principles at [70] – [86] as follows (some citations omitted):

(a) The complexity of the case

70 Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor.

…

(b) Genuine difficulties of the unrepresented party

72 These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen at 501). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court.

…

(c) The unavailability of disciplinary measures and a duty to the court by lay advocates

74 Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears…

75 In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.

76 In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See Ipp, The Hon D. A., Lawyers’ duties to the court, (1998) 114 LQR 63).

77 Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.

78 All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court’s experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.

(d) Protection of the client and the opponent

79 Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.

80 One should also not lose sight of a lawyer’s duty to his/her opponent, Scotts Head at 3. None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.

(e) Lay advocates in inferior courts and tribunals

81 There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.

…

(f) The interests of justice

83 What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

84 The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that:

The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.

85 Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.

86 Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer’s privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice…

Submissions

10. The Applicant submits that he has a cognitive disability which effects the Applicant in high-level decision making especially when it is part of a complex and novel situation with competing non-standard extemporaneous demands. He submits that:

I am disempowered in situations which require sustained high-level cognitive processing and in such contexts for which I have not experienced adequate precedents to proceed in my learning. To date, I have little experience of NCAT.

I need to fully participate in any mediation/court proceedings so that there is minimal misinterpretation or misunderstanding of the positions put to me by SLHD managers or barristers.

[My wife] has more than forty years of practical experience in assisting me to successfully address cognitively demanding circumstances.

[My wife] is necessary in clarifying my position to myself and to others by attending to any cognitive fatigue or erroneous processing of actual and unfolding circumstances. She can refocus my thinking to the matters at hand by highlighting possible consequences of various positions put to me. If required, she can ensure that I more fully understand the tacit subtext of the position of [the Respondent].

11. The Applicant relied upon:

1. what he described as a “wellness plan” which had been drafted by him for his workplace and

2. the Applicant’s request for language or disability support dated 14 September 2023 which states:

I have a disability that compromise my participation in sustained, complex, novel, decision-making processes. At times, in formal meetings, I will require asides in conversation as pacing with my agent, to clarify the ongoing processes and to facilitate my participation.

12. The Applicant also contends that the resistance of the Respondent to his application is further discrimination against the Applicant.

13. The Respondent submitted that the application should be refused for the following reasons and cited Department of Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17 (AY):

1. Ms Schwedler has an alleged conflict of interest because:

1. Ms Schwedler acted for the Applicant as a support person in workplace meetings and facilitated conciliations;

2. At the meetings referred to in (a), in-principle agreements were reached and a Deed of Release and Settlement and Memorandum of Agreement were executed whereby the Ms Schwedler was a witness;

3. Ms Schwedler had previously expressed a grievance against the Respondent because at a meeting with a representative of the Respondent where she attended as the support person:

[She] expressed dissatisfaction with the way in which the matter was handled and alleged a serious failure in due process to the Applicant.

2. Ms Schwedler may potentially be required as a witness in these proceedings

14. The Respondent denied that its opposition to the application is an act of discrimination.

15. In reply, the Applicant denied any conflict of interest, that his wife has never lodged a grievance as against the Respondent and there is no impediment to his wife acting as his agent even if she was called as a witness.

Consideration

16. In AY, it was noted that:

the usual case this Tribunal would not be inclined to interfere with the party’s choice of representative.

17. As held in Macedo v Chief Commissioner of State Revenue [2015] NSWCATAD 193 (Macedo), a similar approach would apply in this Tribunal. As stated in that decision:

Leave should be refused or revoked only in those cases where there is ample evidence that support the conclusion that the interests of justice are not likely to be advanced by the involvement of the agent to prosecute the applicant’s case.

18. The Respondent’s first objection to Ms Schwedler representing the Applicant as agent is because of an alleged conflict of interest. This is based upon Ms Schwedler’s past involvement in meetings and conciliations which led, allegedly, to a settlement agreement which Ms Schwedler witnessed (although there is no evidence of this). Even if I was to accept these factual allegations without any evidence establishing them, they do not provide a basis to find that Ms Schwedler’s interest conflicts with her husband’s interests. A conflict of interest, arises when:

1. A situation where a person has a duty in respect of a matter in which they also have a personal interest.

2. A situation where the interest of an individual or business entity comes into conflict with the interest of another.

19. The allegations relied upon by the Respondent do not support either proposition but rather support that there is no conflict of interest between the Applicant and Ms Schwedler.

20. As for the reference to Ms Schwedler expressing a grievance against the Respondent. Again, there is no evidence as to this allegation. It is only made by way of submission and in broad and vague terms which is denied by the Applicant. Even if I was to accept that Ms Schwedler expressed dissatisfaction with the way in which the matter was handled and alleged a serious failure in due process as against the Respondent, such a contention is consistent with the claim made by the Applicant based upon his application for administrative review. Such conduct could not be found to be a “grievance” but is consistent with Ms Schwedler acting as the Applicants nominee.

21. Even if I accept the comments were made and were made not in Ms Schwedler’s capacity of nominee, they still fall short of a “grievance” for the purposes rejecting the application. For example, in Marshall v Dental Décor Pty Ltd t/as Westmead Gentle Dental [2010] NSWADT 173 (Marshall), the Tribunal refused leave for Mr Marshall who is not an Australian legal practitioner to represent the party where that person had a personal grievance with the respondent and/or his legal representative. However, in that case there was ample evidence that Mr Marshall had an ongoing personal dispute with two of the witnesses and had made threats of violence. The Tribunal, in refusing to grant leave to Mr Marshall to appear on behalf of his wife in a discrimination matter, accepted that the evidence raised serious grounds of his ability to deal fairly with at least the two witnesses. There is no such basis in this application to conclude that Ms Schwedler will not deal fairly and honestly with the Tribunal and other persons involved in the proceedings.

22. The Respondent’s second objection to Ms Schwedler representing the Applicant as agent at the hearing is on the ground that Ms Schwedler may also be giving evidence in support of the Applicant’s case. The objection is essentially that the Applicant’s interests will not be best served in those circumstances.

23. First, there is no evidence that Ms Schwedler will give evidence, will be cross-examined and that such examination, if occurs will be robust as a result of serious contentious evidence.

24. Secondly, even if there was such evidence, I reject the objection for the following reasons.

25. This objection was also made in the matter of Macedo. In Macedo the objection was made largely on the basis of what was said by the Administrative Decisions Tribunal in an Ex Tempore Decision in Haddad v Chief Commissioner of State Revenue (Unreported) 11 November 2009 (NSWADT) (Haddad) in relation to a similar provision, s 71 in the Administrative Decisions Tribunal Act 1997. In Haddad, the objection was upheld. However, Haddad presented very different circumstances as described in Macedo as follows at [24] to [25]:

In that case, Mr Haddad “a graduate of a bachelor of science degree from Macquarie University with some competence in physics” and having undertaken a review of the documents provided by the Chief Commissioner and Energy Australia, he was intending to give expert evidence as to the electricity usage at the property which the Applicant had claimed was her residence during the years in issue. The Tribunal noted that the evidence relating to energy usage was “contentious” and Mr Haddad was “likely to be cross-examined on it in the usual robust way”. In those circumstances, the Tribunal took the view that it was not appropriate for him to represent his wife as an agent.

I am of the opinion that Haddad can be distinguished. I do not think the decision has a general application. Section 45 [of the NCAT Act] is premised upon a party being self-represented at a hearing of an application before the Tribunal. In most cases where a party is self-represented a similar problem would emerge if the party intends to give evidence as well. In Haddad, the Tribunal was largely influenced by the special facts. Mr Haddad was intending to give evidence as an expert and attend the hearing also as an agent for the Applicant. In my opinion, Haddad should be confined to its own special factual background.

26. I accept that reasoning. Specifically, I do not accept that because an agent may be examined, this is a basis to reject an application for that party to be an agent. The same problem arises where an applicant is self-represented which is a common occurrence in this jurisdiction which is overcome by adopting an appropriate procedure at the hearing. I do not accept this objection as a reason to deny the application.

27. Otherwise, the only evidence relied upon by the Applicant as to his alleged disability is a wellness plan drafted by him. While the evidence before is insufficient to make findings with respect to the extent of the Applicant’s alleged cognitive disability it does not appear to be in dispute that the Applicant suffers from certain issues related to his mental health. As described in the President’s Summary of Complaint, I note that the basis of the substantive application alleging discrimination was the deployment of the Applicant by the Respondent as his employer from a clinical role to a non-clinical role with the Respondent asserting that such deployment was not discriminatory but “after serious concerns for Mr Schwedler’s wellbeing”.

28. In these circumstances, I find that the appointment of Ms Schwedler as the Applicant’s agent is in the interests of justice as it will assist the Applicant in the presentation of his case and thereby be of assistance to the Tribunal. Such a finding is consistent with the Applicant’s ability to address the Tribunal at the directions hearing of 26 September 2023 over which I presided where the Applicant experience some difficulties with answering questions posed by me.

29. As for the Applicant’s allegation that the Respondent’s objection is further evidence of discrimination, I reject this submission. The Respondent’s participation in proceedings brought by the Applicant against it, be it interlocutory or otherwise, is not a basis to make a finding of discrimination.

30. With respect to the Applicant’s application for disability support, this is most appropriately decided by the Senior Member presiding over the final hearing given that:

1. evidence supporting the Applicant’s alleged cognitive disability will be before that Senior Member; and

2. the Tribunal may adopt its own procedure to best accommodate the matter.

31. I so find.

Orders

32. I make the following orders:

1. A hearing in relation to the application for the applicant to be represented by Ms Gail Schwedler is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. Leave for the applicant to be represented by Ms Gail Schwedler is granted.

3. The matter is set down for directions on 12 December 2023.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 November 2023