State of Queensland v Greenland
[2010] QCATA 91
•1 November 2010
| CITATION: | State of Queensland v Greenland [2010] QCATA 91 |
| PARTIES: | State of Queensland (appellant) |
| v | |
| Jane GREENLAND (respondent) |
| APPEAL NUMBER: | APL038-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Clare Endicott, Senior Member Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 1 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Grant leave to appeal. Appeal allowed. Decision of 15 March 2010 set aside and leave granted to each party to be legally represented in the proceedings. |
| CATCHWORDS : | PRACTICE AND PROCEDURE – LEGAL REPRESENTATION – STATE AGENCY – where leave to be legally represented was refused – whether reasons adequately exposed the consideration taken into account – where factors relevant to grant of leave for a state agency in review and non-review matters was considered Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | State of Queensland represented by GR Cooper, Solicitor for the State of Queensland |
| RESPONDENT: | Jane GREENLAND |
REASONS FOR DECISION
Ms Clare Endicott, Senior Member
A complaint made under the Anti-Discrimination Act 1991 by Jane Greenland against the State of Queensland has been referred to the tribunal for determination.
An application was made to the tribunal by the State of Queensland (the appellant) seeking leave to be legally represented in the proceedings. On 15 March 2010 leave was refused as the learned tribunal member had not been satisfied that the interests of justice required the appellant to be legally represented in the proceedings. Under section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) parties in proceedings in the tribunal are expected to represent themselves unless the interests of justice require otherwise when, in such a case, the tribunal may grant leave for a party to be represented.
The appellant has under section 142(3) (ii) of the Act sought leave to appeal against that decision. Justice Wilson directed that the application for leave to appeal and the appeal (if leave to appeal were to be granted) would be determined on written submissions from the parties. Submissions have been received from the parties.
The question whether or not leave to appeal should be granted is usually addressed according to certain established principles, one of which is whether there is a question of general importance on which further argument, and a decision of the appeal tribunal, would be to the public advantage.[1]
[1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
An examination of the reasoning applied by the tribunal when considering applications by a State agency for leave to be represented would involve a question of general importance and interest that would provide assistance to parties and to the public. It is one of the objects of the Act, as stated in section 3(c), to enhance the quality and consistency of tribunal decisions and in order to achieve that object the tribunal must ensure like cases are treated alike. It would be appropriate in such a case to grant leave to appeal and to publish reasons that may help parties to understand the process used by the tribunal when considering applications by State Agencies for leave under section 43 of the Act.
The discretion of the tribunal in granting leave for a party to be represented is unfettered, but the Act sets out some factors that the tribunal may, but not must, take into account when deciding whether or not to give leave. Section 43(3) of the Act provides: 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.
The Act identifies the presence in proceedings of one particular category of litigant, a State agency, as a circumstance that the tribunal may consider in favour of granting leave for representation. The reasoning behind including the presence of a State Agency in a proceeding as such a circumstance is not readily apparent from the Act but may be related to the fact that in the review jurisdiction of the tribunal, State Agencies are a party due to their role as makers of the decisions under review.
Section 21 of the Act obliges the decision maker in the tribunal’s review jurisdiction to help the tribunal produce the correct and preferable decision. That obligation is not placed on other parties in proceedings before the tribunal. A corollary to the imposition of the obligation in section 21 can be found in section 43 which provides the tribunal with the means of enhancing the assistance expected from State Agencies by permitting legal representation when appropriate depending on the particular circumstances of each case.
In proceedings outside the review jurisdiction, such as the present case, the obligation in section 21 is not imposed on a State Agency. The tribunal is more likely in non review proceedings to be persuaded to exercise its discretion to grant leave for representation by the factors in subsections 43(3)(b) to (d) than by the fact that the applicant is a State Agency.
10. The published decisions of the tribunal in which section 43 has been applied to date have generally contained a focus on the failure of the applicant for leave to satisfy the tribunal that the proceeding raises complex questions of law or fact or the tribunal has not been persuaded, having in mind the objects of the Act, that granting leave would necessarily advance the interests of justice. Each case has been decided on its particular facts and drawing out generalities from the cases would not be of assistance.
11. The appellant raised several grounds for its appeal. The appellant submitted that the learned tribunal member fell into error by failing to exercise the jurisdiction conferred by section 43(3)(b): instead of satisfying herself whether a complex question of law or fact was likely to exist in the proceedings she had relied on the failure of the appellant to identify any such complex question in its submissions in support of the leave application.
12. The purport of this submission is to convert one of the discretionary factors in section 43(3) which the tribunal may take into account into a mandatory factor that the tribunal must take into account once that factor is raised in an application for leave. Such an intention is not supported by the Act. The learned tribunal member was not under an obligation to take such a factor into account and if she did not do so, no error necessarily resulted.
13. The appellant submitted that the learned tribunal member had failed to afford the appellant natural justice in dismissing the leave application without providing the appellant with an opportunity to articulate what it perceived to be the complex issues of fact or law likely to arise during the proceeding. This submission lacks substance and is not accepted.
14. The appellant had an adequate opportunity to present its case in favour of leave being granted and chose to put in submissions which failed to outline its arguments with any specificity. The outcomes expected from a leave application are the granting of leave or the refusal of leave. There is no other outcome that would be likely to take a party by surprise and which would give rise to an obligation on the tribunal to seek further input from the parties.
15. The appellant submitted that the learned tribunal member had taken an irrelevant consideration into account, namely that the Rules of the tribunal permit a State Agency to appear in proceedings by an employee, officer or member and that the Chief Executive of Education Queensland would not be required to appear in person. It was submitted that the appellant had sought leave to be legally represented and as such Rule 53, which relates to how a State Agency can appear as a party, was not relevant to the application being considered by the tribunal.
16. The tribunal accepts the cogency of that submission as the existence of a right provided by Rule 53 for a party to appear in proceedings by another person but who is not a Australian legal practitioner or government legal officer is not relevant to a consideration of whether the interests of justice require that party to have legal representation in the proceedings. It is possible that the learned tribunal member had not intended to convey the impression that she had taken Rule 53 into contention when refusing leave, but rather she was merely intimating an alternate course that the appellant might want to follow.
17. The written reasons do not however provide an insight into other factors taken into account when deciding the leave application. As a result, the conclusion reached by the learned tribunal member that she was not satisfied that the interests of justice require the appellant to be legally represented has not been adequately explained. In the circumstances an inference can be drawn that the conclusion was erroneously influenced by an irrelevant consideration and on that basis, the decision should be set aside.
18. The leave application could be remitted for a fresh consideration but given the time that has elapsed since the application was lodged, it is more appropriate that an immediate decision is made so that this proceeding can be progressed towards resolution.
19. In its submissions lodged for this appeal, the appellant has identified specific issues which it describes as comprising complex issues of fact or law likely to arise in the proceedings. The issues are stated to involve the identifying of, and quantifying of, the losses sustained by Ms Greenland as a result of the alleged discriminatory actions, the presence of a claim for compensation for defamation and the difficulty in imposing orders governing the future relationship between the parties.
20. In addition the appellant submits that the outcome in this case would have precedent value which would extend well beyond the parties in this case and give the fact that the appellant is a large employer, there are potential implications extending well beyond Ms Greenland. It was submitted it would be unfair to require the appellant to be represented by persons unskilled or inexperienced in discrimination law. It was submitted that that in the circumstances it was in the interests of justice that the appellant be legally represented.
21. The submissions in this case are validly made. It is accepted that there are likely to be complex issues of fact and law arising in the proceedings. It is also accepted that the tribunal hearing a case that is likely to have precedent value on the appellant’s workforce with an impact extending well beyond the parties would benefit from the presence of legal representatives to present the issues with precision and care. It would be in the interests of justice for the parties to be legally represented in such a case so the public as well as other employees of the appellant could have confidence that the issues were properly presented, analysed and resolved according to law.
22. Ms Greenland opposes the granting of leave to the appellant on the grounds that she would be placed in an unfair position if the appellant is represented in the proceedings by lawyers. She has not sought leave to be legally represented and she submits that she lacks the financial resources to be legally represented in the proceedings.
23. The tribunal does not accept that Ms Greenland would be placed in an unfair position if she represents herself when the appellant is legally represented in the proceedings. The tribunal is under a positive obligation in section 29 of the Act to take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the tribunal and understands the nature of assertions made in the proceedings and the legal implications of the assertions.
24. By discharging that obligation the tribunal ensures that parties who represent themselves are not disadvantaged and ensures that their cases are given all due consideration in the context of the whole of the evidence presented to the tribunal.
25. In the event that Ms Greenland later chooses to obtain legal representation in the proceedings, the order of the tribunal will facilitate such a course of action by granting leave to both parties to be legally represented.
REASONS FOR DECISION
Judge Fleur Kingham, Deputy President
I agree with the order proposed by Ms Endicott and her reasons for that order.
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