Sloane v WJR Investments Pty Ltd, Ramsey and Galloway
[2010] QCAT 647
•21 December 2010
| CITATION: | Sloane v WJR Investments Pty Ltd, Ramsey and Galloway [2010] QCAT 647 |
| PARTIES: | Sonja Jean SLOANE |
| v | |
| First respondent | WJR Investments Pty Ltd |
| Second respondent | Warren Ramsey |
| Third respondent | John Galloway |
| APPLICATION NUMBER: | ADL050-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 15 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 to the parties to be legally represented up to and including the compulsory conference. |
| CATCHWORDS : | ANTI-DISCRIMINATION – leave sought for parties 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 against the respondents alleging unlawful discrimination and sexual harassment at work. An additional complaint of victimisation was lodged on 29 January 2010. The complaints were referred to the tribunal on 15 July 2010.
Ms Sloane and the respondents have 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, the parties will require the leave of the tribunal to be legally represented as they are not entitled to representation as of right. The parties must satisfy the tribunal, when considering whether to grant leave for representation, that the interests of justice require them 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.
One such factor is whether all the parties have agreed to a party being represented in the proceedings. Ms Sloane and the respondents submit that they have effectively agreed to each party being legally represented. While that submission is no doubt true, the prime task of the tribunal is to determine whether it is satisfied that the interests of justice require the parties to be represented and mere agreement between the parties is not in itself sufficient to satisfy the tribunal to grant leave in this case. The parties made further submissions in support of their respective applications.
The parties submit that the complaint involves a series of incidents (up to 35 separate occasions) that Ms Sloane complains constitute sexual harassment, unlawful discrimination and victimisation. The allegations have been denied by the respondents. Eleven witness statements were filed on behalf of the respondents in the Anti-Discrimination Commission supporting the denials of the respondents.
Ms Sloane submitted that it would cause her stress to have to present her case to the tribunal and in particular to cross examine the respondents and to be cross examined by them. That submission has some cogency as far as the final hearing of the complaint is concerned particularly if ultimately some evidence is presented to the tribunal about the level of impact that her direct involvement in the hearing may have on Ms Sloane’s emotional functioning.
However the submission is not as pertinent to the stage of the proceedings up to the end of the compulsory conference scheduled for 1 February 2011. 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. She will not have to cross examine any person at that conference and the member conducting the conference will be assiduous in ensuring that the participants at the conference are courteous and are accorded a proper opportunity to articulate their respective cases.
The tribunal has an obligation in section 29 of the Act to take all reasonable steps to ensure each party to a proceeding understands the practices and procedures of the tribunal and understands the nature of the assertions made in the proceeding and the legal implications of the assertions. The tribunal will comply with that obligation by explaining at all stages of the proceedings, including at the compulsory conference, the tribunal’s practices and the issues involved in the proceeding together with an explanation of the legal issues arising from the complaint.
The respondents have submitted that there are complex issues of fact in this case. While the harassment allegations made by Ms Sloane are numerous and extend over almost a 12 month period of time, the allegations in themselves are not complex: the allegations merely document serial incidents of what Ms Sloane has described as sexual harassment. The incidents have been denied.
10. The tribunal will ultimately have the task of determining whether the incidents took place and if so, whether they constitute sexual harassment. The credibility of the parties and their witnesses will be a major focus for the tribunal and it is unlikely that legal representation will materially assist the tribunal in determining credibility issues.
11. The respondents have also submitted that there are complex issues of law involved in determining whether the respondents should be held vicariously liable for the actions of their employees. The tribunal does not agree. It will primarily be an issue of fact whether there was a sexual harassment policy in place at the workplace and whether that policy was implemented and applied in this case. If the tribunal finds that the allegations of Ms Sloane are substantiated and if the tribunal also finds that the employer’s policies or actions were inadequate in the circumstances of this case, a finding that the respondents are accountable at law generally should follow.
12. The respondents as well as Ms Sloane can obtain legal advice and assistance at any stage in the preparation of their case and in the preparation of documents without requiring leave under section 43 of the Act. The parties are prevented by the Act from being actually represented by their legal representatives before the tribunal unless the interests of justice require otherwise.
13. 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.
14. No doubt the parties consider they 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 the parties consider it would be to their advantage to be represented but whether the interests of justice can only be achieved by having legal representation in the proceeding. The tribunal considers that it is best able to achieve a fair, just, economical and informal process by dealing directly with the parties and not through legal representatives, at least to the end of the compulsory conference stage of the proceedings in this case.
15. Taking into account the submissions made by the parties, the tribunal is not satisfied that the interests of justice require the parties 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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