Seidenspinner v Walters & Queensland University of Technology - [2015] QCAT 543

CITATION:

Seidenspinner v Walters & Queensland University of Technology [2015] QCAT 543

PARTIES:	Tim Alexander Seidenspinner Applicant
v
Reece Walters First Respondent And Seidenspinner v Walters & Queensland University of Technology [2015] QCAT Queensland University of Technology Second Respondent

APPLICATION NUMBER:

ADL067-15

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

8 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave is granted to the respondents to be legally represented in this proceeding.

CATCHWORDS:

LEGAL REPRESENTATION – where parties sought leave to be legally represented – where another party objected to leave being granted - where complex questions of fact and law – whether the interests of justice require leave to be granted

Queensland Civil and Administrative Tribunal Act 2009 – s 43

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr Seidenspinner made a complaint that he had been subjected to unlawful discriminatory conduct by the respondents in contravention of the Anti-Discrimination Act 1991 (Qld).His complaint has been referred to QCAT for determination.
The respondents applied for leave to be legally represented in this proceeding. Under s 43 of the QCAT Act, parties in the Tribunal are expected to represent themselves. However, the Tribunal can exercise its discretion and grant leave to a party to be legally represented if the interests of justice require an order to be made for representation.
The QCAT Act provides in s 43(3) some factors that the Tribunal may consider when deciding an application for leave for legal representation. In making an application for leave, the respondents submitted that there were compelling grounds for leave to be granted: the complaint had not been able to be resolved at the Anti-Discrimination Commission, the parties were not able to agree there on the factual basis of the complaint, conciliation was not attempted at the Commission due to the dispute about the facts, there are historical issues between the parties, the subject matter of the complaint has already been considered in other places without the complaint being substantiated, the complaint is legally complex and the matter could be dealt with more efficiently if the respondents were represented.
The respondents submitted that the complaint was managed at the Commission stage by the University’s Equity Director. At the QCAT stage, if legal representation was denied, the University’s in-house lawyers would become involved but such a position would still bring with it the need for leave to be granted for this form of legal representation.
It was argued that there would be a benefit for the parties if external legal representation were to be allowed as this would result in the legal representation for the respondents being one step removed from the events that had occurred. If this was the major basis put forward by the respondents in support of leave, then that argument was not satisfactory or compelling. In-house lawyers would owe the same duties to the client and to the Tribunal as external lawyers to act in the best interests of their client and to assist the tribunal by acting in accordance with their professional obligations.
Rather, the submissions of the respondents that the proceeding involves complex issues of fact and law were accepted by the Tribunal. The complaint is based on the attributes of race and political belief or activity and also alleges discrimination due to the association of Mr Seidenspinner with a person with political and trade union links. These attributes are not frequently the subject of determination by the Tribunal. These particular attributes have been the subject of determination by higher courts and any decision made by QCAT will rely on the developed jurisprudence from the courts as well as from Tribunal decisions that have interpreted the language of the Anti-Discrimination Act 1991 (Qld).
The presence of lawyers skilled and knowledgeable in anti-discrimination law who could make submissions on the law would assist the Tribunal in efficiently deciding the complaint. Adopting measures that would assist the most efficient determination of the complaint through the Tribunal process would be in the interests of justice.
The factual issues set out in the complaint appear to be complex and are disputed to some extent by the parties. According to the submissions, the Tribunal will have to consider and decide on evidence to be adduced from more than 12 witnesses from the respondents as well as evidence from Mr Seidenspinner and his witnesses. The proper managing of evidence from many witnesses, both before and during a hearing, by experienced lawyers will provide a further level of efficiency through the Tribunal process. It is in the interests of justice in this case that legal representation will be available to ensure that all relevant and persuasive evidence is placed before the Tribunal from the respondents.
Mr Seidenspinner objected to leave being granted to the respondents for legal representation. He argued that QCAT is required to act fairly. He argued that allowing legal representation would not be fair as the respondents had immense financial resources to use in support of their defence of his complaint and he lacked the ability to afford legal representation. He argued that this disparity in financial support would cause vast disadvantage to him should the respondents be allowed to have legal representation.
The argument on this point is misguided. It is not unfair to allow one party to have legal representation if the Tribunal considers that it is in the interests of justice for a party to be represented. It may be unfair if leave is granted to one party and refused to the other party but that is not the point in this case. Mr Seidenspinner has not sought leave to be represented. If he did seek leave, then it is likely he would be granted leave. It would be unfair to order otherwise.
Mr Seidenspinner argued that the involvement of legal representatives would not engender efficiency in the Tribunal process but would be likely to slow down the process. He supported this argument by reference to actions that had occurred during the Commission stage of the complaint but which have little relevance to the Tribunal processes.
The preparation of contentions and responses to contentions is an exacting and technical process. In complex matters legal practitioners can readily formulate the initial documents setting out the respective cases of the parties, consider strategies to include or to remove issues for determination and can seek out evidence to prove or rebut all elements of a case.
To persons inexperienced in presenting and proving complaints in this jurisdiction, it may appear that the actions of the legal practitioners complicate or prolong what is considered to be a straightforward determination of what happened and whether the law was contravened. However the Tribunal will be assisted in reaching a decision correct at law when lawyers identify and address complex legal issues that are present in a case but that not always appreciated by a non legal party.
Proceeding in a manner that ensures all appropriate factual and legal issues are identified and addressed may take more time than proceeding to hearing only on the issues identified in the initial complaint. Efficiency is not solely a measure of what time it takes to determine a complaint but rather involves the proper marshalling of evidence and issues for determination. The argument by Mr Seidenspinner that there will not be an increase of efficiency through legal representation is not accepted.
Mr Seidenspinner argued that allowing legal representation introduces the sceptre of costs in a no costs jurisdiction. Granting leave for legal representation is not a signal to parties that the Tribunal would be mindful of awarding costs at the end of the proceeding. Section 100 of the QCAT Act is clear in providing that each party must bear their own costs in a proceeding. Before QCAT departs from that position in any case, there must be grounds on which a costs order can be based and in addition, the financial circumstances of the parties can be taken into account.
It was argued by Mr Seidenspinner that the respondents are well qualified parties who could adequately represent themselves in this proceeding. The respondents do not apparently agree with this proposition as they have requested to be legally represented. The issues involved in the complaint are factually and legally complex. For the reasons already discussed, the presence of legal representation is appropriate in complex cases.
Mr Seidenspinner’s remaining arguments in his submissions did not materially add to the cogency of his objections already discussed. None negated the essential findings made by the Tribunal that there were complex issues of fact and law involved in the proceeding and that it was in the interests of justice that input from legal practitioners skilled in the jurisdiction was given into those complexities to ensure they were properly identified and addressed. Granting leave in that context accorded with the objects of the QCAT Act to deal with matters in a way that is fair, economical and just.