State of Queensland and Muller v Rushton
[2011] QCATA 117
•19 May 2011
| CITATION: | State of Queensland and Muller v Rushton [2011] QCATA 117 |
| PARTIES: | State of Queensland (Appellant) David Muller (Second Appellant) |
| v | |
| Caroline Rushton (Respondent) |
| APPLICATION NUMBER: | APL039 -11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 19 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – LEGAL REPRESENTATION – STATE AGENCY – where leave to be legally represented was refused up to the end of a compulsory conference only – where application for leave to be represented could be made at a later time – whether decision of Appeal tribunal would be to the public advantage – whether learned Senior Member failed to take into account relevant considerations – whether learned Senior Member’s discretion miscarried – whether learned Senior Member made decision beyond power Queensland Civil and Administrative Tribunal Act 2009, ss 43(2)-(3), 142(3)(a)(ii) Cachia v Grech [2009] NSWCA 232 applied Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 applied State of Queensland v Greenland [2010] QCATA 091 cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This application for leave to appeal by the State of Queensland arises out of proceedings under the Anti Discrimination Act 1991. In October 2010 the Anti-Discrimination Commissioner, Queensland referred a complaint by Ms Rushton to QCAT. The complaint alleged, in short, that the State of Queensland and its employee Mr David Muller had breached the Act by unlawfully discriminating against her.
Subsequently, Crown Law made an application for leave to represent the respondents in the QCAT proceeding, the State of Queensland and Mr Muller. Leave is necessary because of the terms of s 43(2)b)(i) of the QCAT Act.
Section 43 provides, firstly, that its ‘main purpose’ is to ‘… have parties represent themselves unless the interests of justice require otherwise’. Under s 43(2) certain parties are permitted to be represented without leave (including children, or persons with impaired capacity, or persons involved in proceedings which relate to taking disciplinary action or reviewing decisions about disciplinary action against a person) but, otherwise, leave is required.
Section 43(3) provides that, in deciding whether to give a party leave to be represented, the Tribunal may consider certain ‘… circumstances supporting the giving of leave–’ which are listed. One of those circumstances is that the party is a State agency.
Crown Law’s application for leave to be represented was filed late last year. These factors were relied upon:
a)One of the respondents is, of course, the State itself;
b)The case involves complex questions of fact and law, said to include questions about the events allegedly giving rise to Ms Rushton’s complaint; whether or not the respondents could adequately respond to that complaint; whether Ms Rushton had suffered any loss; and what (if any) appropriate orders could be made in the proceedings;
c)The case might have ‘precedent value’ extending beyond the decision in it;
d)The matter was already before the Anti-Discrimination Commission Queensland where Crown Law represented the respondents, and its knowledge could assist QCAT; and
e)Ms Rushton would not be disadvantaged if the respondents were legally represented (but she was not) because s 29 of the QCAT Act placed an obligation upon the Tribunal itself to assist parties in understanding its practices and procedure, and what was happening in a proceeding.
The application was considered by a QCAT Senior Member who refused it, with Reasons published on 4 January 2011. In short, the learned Senior Member was not persuaded that the fact that one of the respondents is a State agency was determinative; or that the proceedings involved complex questions of fact and law; or, that the matter (on its face) was likely to have value as a precedent.
That said, the Senior Member acknowledged that the case could, as it progressed, take on further elements of complexity warranting a reconsideration of the question and, for that reason, the refusal of leave only applied up to the end of a compulsory conference in the matter, whereafter the parties could re-apply if they wished.
An application for leave to appeal has been brought in Mr Muller’s name, but it is signed by a lawyer at Crown Law and refers to the ‘applicants’ and it may be assumed that both the State of Queensland and Mr Muller seek leave to appeal the Senior Member’s decision.
Leave to appeal is necessary because the decision is not the final one in this matter.[1]
[1] Queensland Civil and Administrative Act 2009, s 142(3)(a)(ii).
[10] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[11] Here, the question of leave has to be considered in circumstances where the learned Senior Member’s order refusing representation was limited, and conditional in the sense that the parties could re-apply after the compulsory conference in the matter.[6]
[6]A compulsory conference is a procedure under Chapter 2, Part 6, Division 2 of the QCAT Act. Its purpose is to achieve a settlement of the dispute or, if not, to identify issues and lead to orders or directions about the future conduct of the matter. It is, then, both an ADR procedure and, if necessary, a case management tool.
[12] On 29 November 2010 the Senior Member directed that there should be an exchange of submissions about the question of representation, and the proceeding generally, followed by a specific order that the matter be the subject of a compulsory conference in the week commencing 28 March 2011.
[13] It will be seen that the decision did not, then, deny the State of Queensland or Mr Muller the right to be represented at the ultimate hearing of the matter, some time after the compulsory conference (if the matter was not resolved at that conference). That question, the learned Senior Member specifically said was deferred to the Member conducting the compulsory conference who could ‘… make a further determination as to whether to grant leave for the parties to be legally represented if an application is re-made at that stage.’[7]
[7] Rushton v State of Queensland and Muller [2011] QCATA 17, [16].
[14] This Appeal tribunal directed that the application for leave to appeal should be determined on the papers, by an exchange of written submissions. The submissions from Crown Law run to 9 pages. Ms Rushton has also filed lengthy submissions but they are directed, primarily, to the issues in the case itself.
[15] Leave is sought on a number of grounds. The first, broad ground is that a decision of this Appeal tribunal would be of public advantage and, in particular, provide guidelines for the exercise of the discretion under s 43 where a party is a State agency. The submission is not without its attractions but there are some countervailing factors.
[16] In the nature of s 43, each case in which leave is sought will hinge upon its own particular facts and circumstances. Secondly, the submissions for the Crown do not positively suggest what the guidelines might be and when, as here, the applicant’s opponent is not legally represented the case is not one where informed debate in an adversarial context will aid in distilling the arguments and, if appropriate, these ‘guidelines’.
[17] Then, it is said the learned Senior Member failed to take into account a relevant consideration – namely, that one party is a State agency. It is also submitted that the decision of the Queensland Court of Appeal in Tamawood Ltd v Paans[8] means that, despite the use of the word ‘may’ in s 43(3), the Tribunal was compelled to consider the fact that a party was a State agency, and the learned Senior Member did not do that.
[8] Tamawood Ltd v Paans [2005] 2 Qd R 101.
[18] These submissions are surprising: in paragraph [7] of her Reasons the learned Senior Member makes the specific observation that the Tribunal may take the fact that a party is a State agency into account, and then addresses the matter – in terms which show that she acknowledged the relevance of that fact, in her deliberations.
[19] Then, it is said that she failed to take into account a number of other relevant considerations concerning the factual matrix surrounding Ms Rushton’s claim but, again, the Reasons point to the opposite conclusion. The learned Senior Member refers to aspects of the factual background on a number of occasions, and specifically says that she has read the referral report from the Anti-Discrimination Commission and is, nevertheless, unable to ascertain any particular complexity in the facts or law in the matter, or any facts which might give rise to a finding that the interests of justice require the first respondent to be represented merely because it is a State agency.
[20] An attack is then made upon what are described as the learned Senior Member’s ‘findings’ (at paragraph [14]) about some evidentiary matters. All the Senior Member does, in truth, is refer to a recital of assertions by Ms Rushton, in those documents; she makes no finding about the truth, or otherwise, of them.
[21] Next, it is said that the Senior Member’s discretion miscarried when she said that she was unable to ascertain any particular complexity in the facts, or the law, in the matter. While there are disputes about facts, the learned Senior Member observed no more than that the state of the material before her brought the ‘… credibility of the parties into play’, but that did not ‘… inevitably mean that the facts are complex …’.[9] Nothing in the applicant’s submissions is persuasive that this conclusion was not reasonably open.
[9] Rushton v State of Queensland and Muller [2011] QCATA 17, [9].
[22] Finally, it is said that the order made by the learned Senior Member was beyond power and that the only order she could make under s 43 was to allow, or refuse, a party leave to be represented in the entire proceedings. That construction of s 43 is unduly constrained. Other parts of the QCAT Act give the Tribunal wide powers to govern its proceedings: ss 61, and 62; and other provisions make it clear the Tribunal should act informally and expeditiously: ss 3, 4 and 28. The order made here accords with that legislative tenor and, in the present case, is both understandable and commendable.
[23] It should not go unremarked that the Crown’s submissions are also, at times, intemperate: for example, it has said at paragraph 21 that the learned Senior Member has ‘… speculated … that the reasoning behind the legislature including the category of State agency as a factor that may be of influence may be related to the fact that State agencies are generally a party in the review jurisdiction’ and that, in so remarking, the learned Senior Member ‘… applied an impermissible gloss to the words of the Statute and as a result the exercise of its discretion miscarried’.
[24] At both paragraph [7] of her decision in this matter and in an earlier decision of the QCAT Appeal Tribunal to which she refers,[10] this Senior Member remarked that the inclusion of State agencies in s 43 is not explained in the legislation, but that it had been ‘mooted’ – nothing more – that this may have more immediate relevance in the review jurisdiction. To describe these remarks, which are no more than interested speculation about the legislative background to s 43 as ‘… an impermissible gloss’ is excessive, and unfair.
[10] State of Queensland v Greenland [2010] QCATA 91.
[25] There is nothing in the Crown’s submissions pointing to error in the Reasons of the learned Senior Member, and no other sensible basis for granting leave to appeal in this case. The application is refused.
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