Underwood v Department of Housing and Public Works
[2013] QCATA 130
•2 May 2013
| CITATION: | Underwood v Department of Housing and Public Works & Ors [2013] QCATA 130 |
| PARTIES: | Ms Helen Underwood (Appellant) |
| V | |
| Department of Housing and Public Works (First Respondent) Minister for Housing and Public Works Right to Information Commissioner |
| APPLICATION NUMBER: | APL075-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 2 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Application for leave to be represented filed 29 November 2012 by the Department of Housing and Public Works and the Minister for Housing and Public Works is granted.1. The Application for miscellaneous matters filed 22 March 2013 by Helen Underwood is refused.2. The Application for the provision of legal representation/counsel at the public expense filed 3 April 2013 by Helen Underwood is refused.3. The Application for miscellaneous matters filed 3 April 2013 by Helen Underwood is refused.4. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – LEAVE TO BE REPRESENTED – where s 43(2)(b)(iii) of the Queensland Civil and Administrative Tribunal Act 2009 provides that a party may be represented if an enabling act states the person may be represented – where s 122(2) of the Right to Information Act 2009 provides a person may be represented before QCAT by a lawyer on an appeal on a question of law – whether s 122(2) overrides the discretion under s 43(2) – whether the first and second respondents should be granted leave to be represented PRACTICE AND PROCEDURE – LEAVE TO BE REPRESENTED – where the appellant seeks leave to be represented “at the public expense” – where s 43(6) of the Queensland Civil and Administrative Tribunal Act 2009 provides the Tribunal may appoint a person to represent an unrepresented party – whether the Tribunal should appoint a person to represent the appellant Queensland Civil and Administrative Tribunal Act 2009, s 3(b), s 43(2), s 43(3)(b), s 43(6) Dietrich v The Queen (1992) 177 CLR 292, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Ms Underwood has appealed a decision of the Information Commissioner that her applications to the Office of the Information Commissioner for external review of four decisions made by the Department of Communities (as it then was) and the Minister for Community Services and Housing under the Right to Information Act 2009 (‘RTI Act’) relating to information about her public housing tenancy should not be dealt with because they were vexatious, and would cause unfairness to the respondents.
In the course of the appeal both she and the respondents have brought applications for miscellaneous matters which, it has previously been directed, will be determined on the papers.
Identifying the applications and the relief sought in them is not an easy task. Ms Underwood has now filed over 40 centimetres of material in this appeal and many documents are produced many times in her different applications. The documents themselves are discursive and not, with respect, easy to comprehend.
Application by respondents for leave to be legally represented
Last year a QCAT Senior Member ordered that, if any of the respondents sought leave to be legally represented, they must file applications and submissions to which Ms Underwood would have a right of reply and, thereafter, the matter would be decided on the papers.[1]
[1] Order of Mr Richard Oliver, QCAT Senior Member, 18 October 2012.
The third respondent, the Office of the Information Commissioner, indicated that it did not wish to seek the right to be legally represented. The first and second respondents, the Department and the Minister, filed an application and submissions in November 2012. It is, again with respect, difficult to detect which of Ms Underwood’s submissions respond to them but, doing the best I can, it appears that a large document she filed on 31 January 2013 is intended to constitute her submissions in reply.
The Crown Solicitor’s application is supported by submissions which contend that leave is not, in fact, necessary.
Under s 43(2)(b)(iii) of the QCAT Act a party may be represented if an enabling Act “… states the person may be represented.”
Ms Underwood’s appeal is brought under s 119 of the RTI Act. Under s 122 of that Act (which is an “enabling Act” for the purposes of the QCAT Act) a person may be represented before QCAT by a lawyer on an appeal on a question of law under s 119.
The Crown Solicitor submits that this provision overrides the discretion under s 43(2). Under s 122(1), however, anything done under the RTI Act involving QCAT must be done in accordance with the Tribunal’s rules and procedures. Section 122(2) uses the word “may” in a way which indicates it merely affirms, but does not override, the Tribunal’s discretion under s 43.
The right of the first and second respondents to be legally represented remains, then, a matter within the Tribunal’s discretion under s 43 of the QCAT Act. That discretion is a wide one but, under s 43(3)(b) one of the matters the Tribunal may consider as a circumstance supporting the giving of leave is that the proceedings are likely to involve complex questions of fact or law. Another matter is that a party is a State agency.[2]
[2] QCAT Act, s 43(3)(a).
Ms Underwood’s original appeal nominates eight grounds, including submissions that the original decision was “tainted”; that it involved an erroneous exercise of the Commissioner’s discretion; that it was the product of bias, discrimination, denial of natural justice and lack of procedural fairness; that it involved the misinterpretation of the relevant legislation; and, that it was the product of a “… seriously major conflict of interest.”
I have already remarked that the matter has become astonishingly large and complex by dint, not least, of the vast amount of material Ms Underwood has already filed. Her submissions on these and what appear to be other aspects of the complaints she wishes to ventilate in the appeal may fairly be described as involving complex questions of law, if only in the sense that her submissions refer to many other documents, articles, statutes and case law and simply working out which of them might in fact be germane to the appeal is a matter of considerable complexity.
For these reasons I am persuaded that it is appropriate to grant the first and second respondents leave to be legally represented in the appeal.
Application for miscellaneous matters filed 22 March 2013 by Ms Underwood – application for leave to deliver interrogatories, to seek admissions of fact and to have the respondents respond to notices to produce
This application is accompanied by three centimetres of submissions. On 25 March 2013, a QCAT Senior Member directed that the respondents file any submissions in reply and that, thereafter, the matter would be determined on the papers.
At a directions hearing before me on 22 April 2013 Ms Underwood complained that she had been denied natural justice in that order because no direction had been given allowing her to reply to the respondents submissions. In light of the enormous amount of material she had already filed to accompany them, and in light of the very terse (two pages) submissions from the respondents about them, I was not persuaded that granting a right to reply was necessary.
As previously observed, this is an appeal on a question of law only under s 119 of the RTI Act. Ms Underwood’s submissions, despite their size, disclose no jurisdictional basis for the orders she seeks. The decision of the Commissioner from which she appeals was in very narrow compass. No basis is established, in her submissions, for concluding that admissions of fact are necessary, documents are required to be produced, or the respondent should be compelled to answer interrogatories as a necessary element of the preparation and presentation of her case in her appeal.
The respondents categorise her submissions as vexatious and oppressive. That description is, with respect, exaggerated – but, it must also be conceded, not unsurprising in the face of the vast and confusing welter of material Ms Underwood has filed and served upon them.
For these reasons the application for miscellaneous matters must be refused.
Application by Ms Underwood for the provision of legal representation/counsel to her at the public expense
On 3 April 2013 Ms Underwood filed an application seeking an order in these terms accompanied, again, by lengthy submissions. In those submissions she says, among other things, that the appeal features a “complexity” of issues; an apprehension of bias; serious character assassination; serious violation of her human rights; statements of wilful and malicious criminal intent; denial of natural justice; lack of fairness and procedural fairness; and misconduct.
It is said that the matter is one of public interest, and the interest of the Tribunal. The decision of the High Court in Dietrich v The Queen[3] is cited. Ms Underwood is, as she submits, impecunious and in receipt of an aged pension.
[3] (1992) 177 CLR 292.
Under s 43(6) of the QCAT Act the Tribunal may appoint a person to represent an unrepresented party.
The Information Commissioner signified that it did not wish to make submissions. Submissions from the Crown Solicitor for the Department and the Minister are persuasive, firstly, that the decision in Dietrich relates only to criminal proceedings for serious offences,[4] and that the Tribunal is not empowered, under s 43(6) of its Act, to order that the state pay the applicants cost of a legal representative of her choosing.
[4] McGibbon v Linkenagh (1996) 41 ALD 219 per Kiefel J.
Under s 43(6) the Tribunal may appoint a representative for an unrepresented party but the power is discretionary, and rarely exercised.[5] The Tribunal is, at the highest, empowered under the subsection to determine whether someone will be appointed and, if so, who that person is and the terms of their appointment. The latter connotes authority to include a term that the Tribunal pay the appointee for performing their function.
[5] Nursing & Midwifery Board of Australia v Feeney [2011] QCAT 261 at [14].
It is not clear whether Ms Underwood is seeking an order that the Tribunal provide funding for a lawyer of her choice, at its expense, or that of the State. The difference is, in practical terms, academic but in either event Ms Underwood’s submissions are not persuasive that the appointment of the solicitor she wishes to choose is the most economical way of achieving the objects of the QCAT Act which include, relevantly, that the Tribunal deal with matters in a way that is economic.[6]
[6] QCAT Act, s 3(b).
In the only case in which, so far as I am aware, an appointment was made under s 43(6) that the Tribunal appointed QPILCH which is a not-for-profit organisation offering advice and referral services for parties representing themselves in the Tribunal.[7] In her submissions Ms Underwood also refers to other proceedings in which she was represented by a solicitor chosen by her, but they concerned a tenancy dispute.[8] The current proceedings involve an appeal on her part on questions of law in respect of her right to access to documents of the first and second respondents.
[7] Nursing & Midwifery Board of Australia v Feeney [2011] QCAT 261.
[8]Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158.
This is not a case in which it is compelling that the applicant ought to be funded out of the public purse. For these reasons, the application is refused.
Further application by Ms Underwood for miscellaneous matters filed 3 April 2013
Ms Underwood filed another application for miscellaneous relief in which she referred to her earlier application filed 22 March 2013 but also sought an order that the directions order of the Senior Member of 25 March 2013 be “struck out” on a “with prejudice” basis in, it is submitted, “the interests of justice”.
As noted earlier, when the matter came before me for directions on 22 April 2013 Ms Underwood’s grounds for this application were said to be that the learned Member had wrongfully denied her a right of reply in her directions about submissions to be exchanged in respect of Ms Underwood’s earlier application.
For the reasons already traversed, there is no merit in this application: it is beyond human understanding that Ms Underwood could possibly have anything more to say in support of her earlier application for leave to deliver interrogatories, etc.
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