Sweeney v Translink Transit Authority

[2011] QCAT 318

CITATION: Sweeney v Translink Transit Authority [2011] QCAT 318

PARTIES:	Noel Sweeney
v
Translink Transit Authority

APPLICATION NUMBER:   ADL027-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 23 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Leave is not granted for the respondent to be legally represented up and including the compulsory conference.

CATCHWORDS:

ANTI-DISCRIMINATION – legal representation – where respondent did not satisfy tribunal that legal representation required in the interests of justice

Queensland Civil and Administrative Tribunal Act 2009, s 43

APPEARANCES and REPRESENTATION (if any):

The hearing was conducted on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Noel Sweeney has made a complaint that he was subjected to unlawful discrimination on the grounds of age and impairment by Translink Transit Authority in the provision of goods and services.  That complaint was referred to the tribunal on 5 April 2011.

2. The respondent sought leave to be legally represented in the proceeding. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. Section 43(3) sets out some factors that the tribunal may consider when exercising the discretion to grant leave to a party to be legally represented.

3. The facts of the complaint are not complex.  Mr Sweeney alleges that from 27 August 2010 the 640 bus service from Woorim to the Bribie Island Shopping Centre has terminated at the Park and Ride base and not in the Shopping Centre as it had done for some years.  Mr Sweeney alleges that he was told by a telephone service officer from Translink that they only cater for the majority of people when he called to complain about the change of the bus stop.  Mr Sweeney alleges that he has an impairment and he is unable to walk 500 metres from the current bus stop into the Shopping Centre.

4. The tribunal has the responsibility of resolving disputes between parties. The tribunal will try to resolve this dispute by holding a compulsory conference under section 67 of the Queensland Civil and Administrative Tribunal Act 2009.  The purpose of such a conference is to clarify the issues in dispute, to identify any questions of fact and law that have to be decided by the tribunal and to promote a settlement of the dispute.[1]  The tribunal actively promotes a resolution of disputes at these conferences by focusing on practical solutions.  No legal issues are decided at a conference although the parties can come to some mutual agreement on legal issues if they want to do so.   

   [1]        Section 69 of the Queensland Civil and Administrative Tribunal At 2009.

5. The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.  The tribunal meets this obligation by having the parties attend a compulsory conference early in the proceedings and requiring the attendees at the conference to have knowledge of the circumstances of the complaint and to have the ability to resolve the complaint.

6. The tribunal has not been satisfied by the submissions made on behalf of Translink that in this case the possession of legal expertise by a person representing the respondent from a legal agency not directly associated with Translink will advance the purposes of the conference or advance the interests of justice.  Leave for legal representation has been refused only up to and including the compulsory conference.  Another application for leave can be made if the dispute continues after the conference and at that stage the submissions made on behalf of Translink may be considered to be more cogent. 

7. Mr Sweeney is not represented in the proceedings.  He opposes leave being granted to Translink to be legally represented.  He has not sought to be legally represented in the proceedings but quite sensibly he has clearly obtained assistance from a legal adviser about his complaint and his contentions reveal the benefit of his obtaining that assistance. 

8. Translink is of course able to do the same without requiring leave of this tribunal.  Translink is not a human person and must from necessity appear by an officer or employee.  It would be essential that the person appearing for Translink had knowledge of the circumstances behind the alleged change of bus stop and of the operations and policies of the call centre where Mr Sweeney had an interaction with a telephone service officer.  However the choice of person appearing for Translink is one for that party to make subject only to rule 53(2) of the Queensland Civil and Administrative Tribunal Rules 2009. 

9. The tribunal is of the view that at this early stage of the proceedings the positive obligations on the tribunal in section 29(1) of the Act to take all reasonable steps to ensure that the parties understand the legal implications of the assertions made by the parties will adequately ensure that the interests of justice are met and will provide appropriate support to parties who may be unfamiliar with discrimination law. The tribunal was satisfied that no unfairness will result from the parties being required to represent themselves as expected by section 43 of the Queensland Civil and Administrative Tribunal Act 2009.   

[10]  Leave was accordingly refused to Translink to be legally represented up to and including the compulsory conference.