Sloane v Hickson
[2010] QCAT 648
•21 December 2010
| CITATION: | Sloane v Hickson [2010] QCAT 648 |
| PARTIES: | Sonja SLOANE |
| v | |
| Deanne HICKSON |
| APPLICATION NUMBER: | ADL054-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 14 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 21 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave is not granted for the applicant to be legally represented up to and including the compulsory conference |
| CATCHWORDS : | ANTI-DISCRIMINATION – leave sought for applicant to be legally represented – section 43 of the Queensland Civil and Administrative Act 2009 - proceedings not likely to involve complex questions of fact or law – not satisfied legal representation required in the interests of justice |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 2 November 2009 Sonja Sloane lodged a complaint with the Anti-Discrimination Commission alleging unlawful discrimination and sexual harassment at work. On 21 January 2010 Ms Sloane lodged a further complaint with the Anti-Discrimination Commission alleging that she had been subject to victimisation by Ms Hickson in relation to the complaint made in November 2009. The victimisation complaint was referred to the tribunal on 15 July 2010.
Ms Sloane has sought leave to be legally represented in the proceeding. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) 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……..
In view of section 43(2) (b) (iv) of the Act, Ms Sloane will require the leave of the tribunal to be legally represented. She must satisfy the tribunal, when considering whether to grant leave for representation, that the interests of justice require Ms Sloane to be legally represented. The Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when deciding whether or not to give leave.
The complaint of victimisation refers to a telephone conversation between Ms Sloane and Ms Hickson during which Ms Sloane alleges that Ms Hickson threatened to distribute photographic material around Ipswich and around a school where Ms Sloane’s daughter attended in retaliation for Ms Sloane making the complaint about sexual harassment at her workplace.
It is quite apparent from the documents lodged with the Anti-Discrimination that the complaint against Ms Hickson does not involve any complex issues of fact or law. Ms Hickson has not sought leave to be legally represented in this proceeding.
Ms Sloane has submitted that she would be unable to adequately put forward her complaint because of the stress it would cause her. While it is commonplace for a person to experience some discomfort or nervousness when articulating past events that had been unpleasant to that person, the material provided to date does not satisfy the tribunal that Ms Sloane would be unable to present her case at the compulsory conference when the complaint made against Ms Hickson is restricted to a complaint about one telephone conversation.
Ms Sloane will be expected to take part personally in the conference and to make decisions as to whether her complaint can be resolved at that conference. The member conducting the conference will ensure that the participants at the conference are courteous and are accorded a proper opportunity to articulate their respective cases.
The Act has set up a regime in this tribunal where parties are primarily expected to represent themselves. The interests of justice are achieved by the tribunal dealing with cases in a way that is fair, just, economical and informal, as required by the objects of the Act. It is in the context of those objects that the tribunal must consider in any particular case whether leave for legal representation is required.
Ms Sloane may consider that she would be advantaged by having legal representation but the Act invokes a broader threshold, namely whether the interests of justice require leave to be granted. The relevant consideration for the tribunal is not whether a party considers it would be to their advantage to be represented but whether the interests of justice can only be achieved by that party having legal representation in the proceeding. The tribunal considers that it is best able in this case to achieve a fair, just, economical and informal process by dealing directly with the parties at least to the end of the compulsory conference stage of the proceedings.
10. Taking into account the submissions made by Ms Sloane, the tribunal is not satisfied that the interests of justice require her to be legally represented up to the end of the compulsory conference stage of the proceedings. The member conducting the conference can decide if the parties should be granted leave to be legally represented if the complaint is not resolved at that conference.
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