State of Queensland and Green v Leadbeatter
[2011] QCATA 60
•8 April 2011
| CITATION: | State of Queensland and Green v Leadbeatter [2011] QCATA 60 |
| PARTIES: | State of Queensland (Appellant) Erica Green (Second Appellant) |
| v | |
| Sarah Leadbeatter (Respondent) |
| APPLICATION NUMBER: | APL014–11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 8 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – INTERLOCUTORY DECISION – PRACTICE AND PROCEDURE – LEGAL REPRESENTATION – STATE AGENCY – where first appellant state agency – where second appellant school principal – where leave to be legally represented was refused – whether error in exercise of discretion – whether substantial injustice if leave not granted Anti-Discrimination Act 1991, s 166 Queensland Civil and Administrative Tribunal Act 2009, ss 3(a)-(b), 21(1), 43(1)-(2)(b)(iv), (3)(a), 69, 70, 142(3)(a)(ii) Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied House v The King (1936) 55 CLR 499 applied In re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318 applied Tamawood Ltd v Paans [2005] 2 Qd R 101 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Justice Alan Wilson, President
I have had the benefit of reading the reasons of the Deputy President, her Honour Judge Fleur Kingham, in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Judge Fleur Kingham, Deputy President
These proceedings involve an unresolved complaint by Ms Leadbeatter about the treatment of her daughter at a state school. Ms Leadbeatter alleges the school unlawfully discriminated against her daughter. The Anti-Discrimination Commissioner referred the complaint to QCAT for determination.[1] Ms Leadbeatter claims compensation for the stress caused to her daughter and other family members and for costs associated with moving her daughter to a different school.
[1] Pursuant to the Anti-Discrimination Act 1991, s 166.
The State of Queensland and Ms Green, the Principal of the school, unsuccessfully applied for leave to be legally represented in the proceedings. The application was not rejected entirely. The order made by the Senior Member who heard the application, Ms Endicott, applied only until the conclusion of a compulsory conference[2] between the parties. In her reasons, Ms Endicott said, if the matter did not resolve at the compulsory conference, the member presiding at the conference could decide whether those parties should have leave to be legally represented at the hearing.
[2]A compulsory conference is conducted by a member of the Tribunal. Its purposes include: identifying and clarifying the issues; promoting settlement; identifying questions of fact and law to be decided; and making orders and directions about the conduct of the proceedings. Queensland Civil and Administrative Tribunal Act 2009, ss 69, 70.
The legal principles that apply to the application
Because the decision under challenge is not a final decision, leave of the Appeal Tribunal is required.[3] Whether leave should be granted is decided in accordance with established principles.
[3] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii).
Here, the decision involves the exercise of discretion. It is not enough that the Appeal Tribunal might have made a different decision had it heard the original application. There must appear that some error has been made in exercising the discretion.[4]
[4] House v The King (1936) 55 CLR 499, 504-505.
Where the discretion relates to a matter of practice or procedure, and not the substantive rights of the parties, appellate bodies exercise particular caution in deciding whether to review the decision.[5] This recognises the risk of unwarranted delay and increased costs if interlocutory matters are easily transferred to the appellate level.[6]
[5] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
[6] In re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318, 323.
That risk has added significance in a forum established with the object of matters being dealt with in a way that is accessible, fair, just, economical, informal and quick.[7]
[7] Queensland Civil and Administrative Tribunal Act 2009, s 3(b).
The question of injustice flowing from the decision is a relevant and necessary consideration.[8] Leave is not granted unless there is sufficient doubt to warrant reconsideration and a substantial injustice would result if the application is refused.[9] Neither of those tests is met in this case.
[8] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
[9] Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-400.
The grounds for the application
In their submissions, the State of Queensland and Ms Green argue the Tribunal:
a)Failed to take into account a relevant consideration, namely that a party is a State agency;
b)Took into account irrelevant considerations, namely that the State is expected to act as a model litigant (whether or not it is represented in the proceedings) and that the parties did not require leave to obtain legal assistance in preparing their case; and
c)Failed to exercise the jurisdiction conferred on it to grant leave.
Did the Tribunal fail to take into account that a party is a State agency?
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 governs legal representation in Tribunal proceedings. The parties argue the status of a party as a State agency is a relevant factor that must be taken into account.[10] That is not controversial.
[10] Tamawood Ltd v Paans [2005] 2 Qd R 101, 112.
The learned Member did consider it a relevant factor and addressed whether, in this case, that factor supported granting leave. She clearly stated the view she took of the significance of that party’s status, as it pertained to these particular proceedings. She drew a distinction between the role of a State agency as the maker of a decision under review and its role as a party in civil proceedings such as these. She decided that, for these proceedings, the fact that the party is a State agency did not favour granting leave.
That finding goes to the heart of the application for leave to appeal. The parties argue the fact a party is a State agency is a consideration that weighs in favour of the granting of leave. They argued the Tribunal erred in not accepting this as a circumstance supporting the giving of leave.
Section 43 states the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise[11]. Circumstances in which a party may be represented are stated in s 43(2)(b). The fact that the party is a State agency is not one of those circumstances.
[11] Queensland Civil and Administrative Tribunal Act 2009, s 43(1).
A party may be represented if given leave by the Tribunal[12]. In deciding whether to give leave, the Tribunal may consider certain circumstances, including the party is a State agency, as supporting the giving of leave[13].
[12] Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(iv).
[13] Queensland Civil and Administrative Tribunal Act 2009, s 43(3)(a).
The parties’ submission would have the Tribunal reading the word may as must, thereby elevating a discretionary consideration to a directive. If it had been intended that the status of a party as a State agency must be considered as a factor in favour of granting leave, that could have been stated easily enough. On their plain and ordinary meaning, the introductory words of s 43(3) leave that assessment to the Tribunal in exercising its discretion.
The learned Member did consider the status of the State agency as a relevant factor. She stated the view she took of that factor and explained why. She drew what appears to me to be a relevant distinction between the roles of a State agency in different proceedings. She identified the specific statutory duty on a State agency to assist the Tribunal in proceedings to review the agency’s decision[14]. She distinguished those administrative review proceedings from civil claims, such as this one, in which the State agency does not have a materially different obligation to any other party.
[14]Queensland Civil and Administrative Tribunal Act 2009, s 21(1): The agency must use their best endeavours to help the Tribunal so that it can make its decision on the review.
Respectfully, I see no error in the learned Member’s approach to determining whether, in this case, the fact that a party is a State agency favours it being legally represented.
Did the Tribunal take into account irrelevant considerations?
The parties argue the Tribunal took into account irrelevant considerations and, in doing so, asked itself the wrong question.
Firstly, they say the Tribunal should not have considered the State is expected to act as a model litigant, regardless of whether it is legally represented. A fair reading of the learned Member’s reasons discloses this was not a discrete consideration. Rather, she made a reference to the model litigant principle when explaining the view she took of the role of a State agency in a civil proceeding. In referring to that principle, I cannot see how the learned Member has asked herself the wrong question.
Secondly, the parties argue it is an irrelevant consideration that, without leave, they are able to obtain legal advice and assistance in preparing their case. This submission does not address the primary question the learned Member was required to answer: whether the interests of justice require a party to be legally represented. Whether parties can obtain and benefit from legal assistance without leave is relevant to the effect on them of an order refusing them leave to be represented. It is most certainly relevant to whether the interests of justice require representation. It goes directly to the extent to which a party might be disadvantaged if not represented at a hearing.
Did the Tribunal fail to exercise its jurisdiction?
This complaint seems to be that the Tribunal’s discretion miscarried in deciding the proceeding does not involve complex issues of either law or fact. The submissions refer to two specified occasions of alleged discrimination. While this might increase the scope of the evidence, of itself the number of allegations does not suggest increased complexity. They also refer to the possibility that Ms Leadbeatter might press allegations that she has been the subject of sex discrimination, public vilification and victimisation.
Ms Leadbeatter has complied with a direction to file a statement of contentions. This states the reasons why a party believes the allegations contained in the complaint referred by the Anti-Discrimination Commissioner amount to a contravention of the Anti-Discrimination Act 1991. The statement of contentions filed by Ms Leadbeatter does not raise those further matters.
Conclusion
The parties have not raised sufficient doubt about the decision under challenge to warrant its reconsideration. The Appeal Tribunal is not persuaded any particular error was made by the learned Member in exercising her discretion.
The parties will not suffer a substantial injustice if the decision is not reviewed. Indeed the application for leave to be legally represented would seem to be a live issue that can be revisited at the end of the compulsory conference.
The application for leave to appeal is refused.
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