WBG - [2011] QCAT 169

CITATION:

McKinnon v State of Queensland and Anor [2012] QCAT 169

PARTIES:	Matthew McKinnon (Applicant)
v
State of Queensland (First Respondent) John Barron (Second Respondent)

APPLICATION NUMBER:

ADL121-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

14 March 2012 and 5 April 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave is not granted for the Respondents to be legally represented up to and including the compulsory conference.

2. The application by John Barron to reopen the application for leave to be represented is refused.

3. Leave is granted to State of Queensland to appear in the proceeding through a government legal officer.

4. Leave is granted for John Barron to attend the compulsory conference via telephone.

CATCHWORDS:

ANTI-DISCRIMINATION – leave for representation sought – where not satisfied that interests of justice required parties to be legally represented before compulsory conference – where no grounds established for reopening application for leave to be represented – where appropriate for State entity to appear through a legal officer

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

Matthew McKinnon was employed during 2009 with the Department of Communities. He had noticed what he has described as bullying behaviour by a work colleague, John Barron, towards other employees in his workplace. On November 2009 Mr McKinnon alleges that he became the victim of bullying behaviour from Mr Barron.
Mr McKinnon received a letter containing derogatory sexual comments and sexual allegations. He believed that Mr Barron was responsible for the letter. Mr McKinnon made a complaint at his workplace about the letter but he alleges that he was made to feel as if he were the wrongdoer and he was being vilified for making a complaint. Mr McKinnon was given a letter by the assistant director of his work unit requiring him to act civilly at the workplace. Mr McKinnon alleges that the subsequent investigation into his complaint was not impartial.
A complaint of sexual harassment and victimisation was made by Mr McKinnon against Mr Barron and against Mr McKinnon’s employer under the Anti-Discrimination Act 1991. The complaint has been referred to QCAT.
The respondents sought leave to be represented in this proceeding. Section 43 of the QCAT Act provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. Mr McKinnon opposed the applications by the respondents for leave to be represented. The QCAT Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when considering whether the interests of justice require QCAT to grant leave to a party to be represented.
The State of Queensland made submissions that as section 43(3)(a) provides that one circumstance supporting the granting of leave is whether a party is a State agency, the Legislature had acted in a way consistent with the proposition that it is in the public interest that the State be legally represented at QCAT. That proposition is not consistent with the wording plainly set out in section 43(1) which states that the main purpose of section 43 is to have parties represent themselves unless the interests of justice require otherwise.
There will be cases when the status of one party as a State agency will be instrumental in QCAT finding that the interests of justice require leave to be granted for legal representation but not as of rule in every case. To hold otherwise would in effect require section 43 to be interpreted as if State agencies were in the categories of parties for whom an as of right entitlement to representation was given.
The State submitted that the proceeding was likely to involve complex questions of fact and law. A perusal of the complaint made to the Anti-Discrimination Commission and of the contentions filed by Mr McKinnon did not reveal issues holding any particular complexity. The recept by Mr McKinnon of a letter with distasteful sexual comments in November 2009 is not denied. It was not clear to what extent the respondents contest the allegations of victimisation but the mere presence of some challenged claims does not of itself render the factual matrix complex.
Applying the law to determined facts in anti-discrimination cases can be a complex task. In many instances it would be in the interests of justice for parties to be represented in order for the tribunal to comply with its statutory obligations in section 28 and 29 of the QCAT Act. This is particularly so when a case is at the stage of a final hearing and when a final decision on the merits of a case is to be made.
However QCAT is under a responsibility of ensuring that proceedings are conducted in an informal way that minimises costs to parties and of encouraging the early and economical resolution of disputes.[1] The tribunal has the responsibility of resolving disputes between parties and if appropriate through alternative dispute resolution processes. It is in the interests of justice that the tribunal implements those processes with the aim of parties being directly involved in attempts to resolve their own disputes.
[1] Section 4(b) and (c) of the QCAT Act.
The tribunal directed that the parties participate in a compulsory conference under section 67 of the QCAT Act. 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.[2] 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.
[2] Section 69 of the QCAT Act.
The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.[3] The tribunal meets this obligation by requiring the attendees at the conference to have knowledge of the circumstances of the complaint and to have the ability to resolve the complaint. That aim is best achieved by the parties being directly involved in the process.
[3] Section 3(b) of the QCAT Act.
The tribunal was not convinced by the submissions from the State that the parties would benefit from the presence of legal representatives to ensure that evidence was presented with care and precision at the conference stage of the proceedings. A conference does not require presentation of evidence but requires focussed discussion of the issues by the persons who had been directly involved in the matters in dispute.
Leave was not granted to the State of Queensland for legal representation up to and including the compulsory conference as the tribunal was not convinced that the interests of justice required the presence of legal representatives at the conference. Another application for leave can be made for the hearing stage of the proceeding if the dispute was not able to be resolved at the conference.
Mr Barron had also sought leave to be represented by Trevor Markwell who was described as a retired police officer who did not hold any legal qualifications. Correspondence from Mr Markwell described him as specialising in workplace investigations and mediation. Mr Markwell is not an Australian legal practitioner.
In his submissions in support of leave for representation, Mr Barron stated that he would not be able to operate as his own advocate due to stress caused by the allegations of Mr McKinnon. Mr Barron did not provide any evidence from medical providers as to the ongoing nature of his stress related condition.
For the reasons already discussed in paragraphs 8 to 12 of these reasons, the tribunal made a decision on the papers on 14 March 2012 that it was not satisfied that it was in the interests of justice that Mr Barron was represented during the stage of the proceeding to the compulsory conference.
Prior to that decision being made, the tribunal registry had written to Mr Barron on 29 February 2012 asking him to make submissions under section 43(4)(b) of the QCAT Act as to why Mr Markwell should be considered an appropriate person to represent him. No further submissions were received prior to the decision being made on 14 March 2012 to refuse leave for representation.
The letter sent to Mr Barron requesting these further submissions was later returned unclaimed to the tribunal after 14 March 2012. Mr Barron applied to reopen the hearing of his application for leave to be represented.
Under section 138 of the QCAT Act, a party may apply for a proceeding to be reopened if the party considers a reopening ground exists. A reopening ground is defined as:
(a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[4]
[4] Section 137 of the QCAT Act.
In seeking a reopening, Mr Barron submitted more information in support of his application for leave. The reopening application was opposed by Mr McKinnon. While the State did not object to the reopening application, submissions were made by the State that the application for legal representation by the State should be reconsidered as well if the reopening of Mr Barron’s application were allowed.
In the additional information he supplied, Mr Barron submitted that he was a person with impaired capacity and as such he should be permitted to have Mr Markwell represent him in the proceedings as Mr Markwell had already assisted Mr Barron through several processes in relation to Mr McKinnon’s allegations.
Impaired capacity has the meaning found in the Guardianship and Administration Act 2000. In general terms capacity is defined in that Act as being able to understand the nature and effects of decisions about a matter, being able to make decisions freely and voluntarily about a matter and being able to communicate decision about a matter in some way.[5] The submissions made by Mr Barron did not address any of the parts of the definition of capacity but merely referred to Mr Barron experiencing stress if he were required to represent himself in the presence of Mr McKinnon. There was no evidence that Mr Barron’s decision making capacity would be impaired in any way.
[5] Schedule 4 of the Guardianship and Administration Act 2000.
QCAT is required to act on the presumption that all adults have capacity to make their own decisions.[6] The presumption had not been rebutted and Mr Barron was not a person with impaired capacity.
[6]Section 7(a) and General Principle 1 in schedule 1 of the Guardianship and Administration Act 2000.
After considering the written submissions of the parties, the tribunal was unable to find any ground on which to allow a reopening of Mr Barron’s application for leave to be represented. As the original hearing of that application was conducted on the papers on 14 March 2012, the decision to refuse leave was not influenced by any failure of Mr Barron to appear or to lodge submissions in support of the application. Mr Barron’s original written submissions had been fully considered at the hearing on 14 March 2012.
Mr Barron did not seek to rely on any new evidence for his reopening application that was not reasonably available on 14 March 2012. Mr Barron was merely seeking the tribunal to consider more comprehensive submissions than had been originally submitted before 14 March 2012. Even if I were to be persuaded that the additional submissions contained new evidence, for the reasons discussed in paragraphs 22 and 23 that new evidence was not capable of supporting a finding that Mr Barron would suffer substantial injustice if representation by Mr Markwell should not be allowed.
The reopening application was refused on 5 April 2012.
The State had on 27 March 2012 sought leave to appear in the proceedings through a government legal officer under rule 53 of the QCAT Rules. That application was opposed by Mr McKinnon.
The State of Queensland is not a natural person and must of necessity appear in all aspects of the proceeding by a natural person. The State could have chosen to appear by the Director-General of the Department of Communities or by a director of a division of that Department or by a senior Human Resource Manager. The choice of person appearing for the Department is a decision for the State. QCAT’s only role in approving who appears for the State is when the chosen person is an Australian legal practitioner or a government legal officer.
The role of a person appearing for the State should not be confused with a person providing legal representation for the State. Persons in the role of legal representatives of the State would not themselves have authority to proceed or settle but they must necessarily seek instructions from their principal at all times.
Appearance for the State is the means by which a non corporal entity materialises at a conference or hearing. The person appearing for the State provides authority for the matter to proceed or to settle. The legal skills of a person appearing for the State should be no more than incidental to the role of appearing as one of the parties to the dispute.
In the State’s submissions, reliance was made on the matters discussed in Rushton v State of Queensland & Muller (No 2)[7] when the tribunal found that the State should be able to choose the most appropriate person to appear for the State from its large workforce based on criteria it considers relevant. Without repeating that discussion, I accept that the State should be permitted to determine, having regard to the position descriptions and functions of its workforce, which of its employees are best suited to appear for the State at a conference at QCAT.
[7] [2011] QCAT 440.
Rule 53 does not predicate leave being granted only if it is found to be in the interests of justice. Leave is nevertheless required to be granted before the State can appear in a proceeding by a government legal officer as there may be occasions when the circumstances of a case make it inappropriate for a legal officer to appear. I was not convinced by the submissions of Mr McKinnon that this case gave rise to such an occasion when it would be appropriate to override the choice made by the State for a government legal officer to appear for that party.
Mr Barron had sought leave to attend the conference by telephone out of concern for his wellbeing. I was satisfied that in this case the aims of the conference could be achieved although one of the parties would not be attending in person. There was a reasonable probability that a full discussion of the matters in dispute would not easily take place if Mr Barron had to face Mr McKinnon in the close and sometimes intense environment of a conference. I was convinced that Mr Barron should attend by remote conferencing to minimise any adverse impact on his wellbeing and to encourage the prospects of resolution.