Zhang v The Spastic Centre of NSW

[2003] NSWADT 242

CITATION:	Zhang v The Spastic Centre of NSW & Ors [2003] NSWADT 242
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT John Zhang FIRST RESPONDENT The Spastic Centre of New South Wales SECOND RESPONDENT Functional Pre-Employment Specialists THIRD RESPONDENT Roseville Physiotheraphy Centre
FILE NUMBER:	031063
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/03/2003
DATE OF DECISION:	11/12/2003
BEFORE:	Grotte E - Judicial Member; Bolt M - Member; Mooney L - Member
APPLICATION:	Application for leave for party to be represented by agent, solicitor or counsel
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT J Pilkington, solicitor SECOND RESPONDENT J Patterson, solicitor THIRD RESPONDENT D Maccallum, solicitor
ORDERS:	Leave is granted to the Respondents to be legally represented

1 The Applicant has requested that the Tribunal not grant leave to the Respondents to be legally represented in these proceedings. The Respondents have sought leave to be legally represented.

2 The Applicant submitted that he is seeking legal assistance from a couple of government funded organisations and he is unable to obtain assistance from them.

3 The Applicant submitted that he is suffering financial hardship and he believes that legal representatives would affect the outcome of the legal proceedings.

4 The Applicant submitted that he is from a non-English background and he is disadvantaged because he has to deal with three other parties who are English speakers. He submitted that all the parties are able to focus on the facts of the incident and the parties have the same legal knowledge as he does.

5 The Applicant submitted that he has not lodged legal proceedings before and if the Respondents are not legally represented then they will be on an equal footing with him.

6 The three Respondents made separate submissions seeking leave for the Respondents to be legally represented. In summary the main points are as follows:

(i) The matter is complex and there are points of law to consider. The applicant has made allegations of unlawful discrimination on the grounds of race, disability and sex. The Applicant's complaint also raises complex legal issues about the relationships between the respondents. The presence of legal representation will be useful in both advising the Respondents and in assisting the Tribunal;

(ii) An interpreter service is available to the Applicant if he requires assistance in this regard;

(iii) The Applicant had previously sought legal advice in relation to his complaint and has had the benefit of legal representation and it is his choice not to continue to be legally represented;

(iv) None of the parties were legally represented at the Anti-Discrimination Board conciliation and it may be reasonable to assume that the presence of legal representation will not impede settlement because its absence did not facilitate it;

(v) Legal representation at the mediation and at the hearing may make it more effective and efficient;

(vi) The Applicant's complaint was declined by the Acting President of the Anti Discrimination Board as lacking in substance. The second respondent considers that the complaint lacks substance and is considering making an application under section 111(1) of the Anti Discrimination Act 1977 that the complaint be dismissed on the same basis and so additional questions of law may be raised;

(vii) Section 73 of the Administrative Decisions Tribunal Act1997 empowers the Tribunal to assist a non-represented party to ensure that the party understands both the nature of the assertions and the legal implications;

7 The Tribunal has considered the Applicant's request regarding legal representation as well as the submission from the three Respondents. The Tribunal has also considered section 71 of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) and Section 101 of the Anti-Discrimination Act 1977 (NSW) (AD Act).

8 By virtue of Section 101 of the AD Act the parties in this inquiry are entitled to appear personally but would have to seek the leave of the Tribunal to be legally represented.

9 Section 71(2) of the ADT Act provides however, that the Tribunal may order that the parties to proceedings may not be represented for the purposes of presenting oral submissions if the Tribunal considers it appropriate to do so. Section 71(3) of that Act provides that in making such an order the Tribunal must have regard to the complexity of the matter and whether it involves a question of law, whether each party has the capacity to present the party's case by oral submissions without representation, the stage the proceedings have reached, the type of proceedings and such other matters as the Tribunal considers relevant.

10 The Tribunal is of the view that the matter is reasonably complex and that it raises legal issues to be determined. The Tribunal is of the view that the presence of legal representatives will be beneficial and of assistance to their clients and to the Tribunal in the mediation and hearing process in identifying the factual and legal issues and in ensuring that the hearing is conducted efficiently.

11 The Tribunal notes that an interpreter service is available to the Applicant should he wish to avail himself of that service.

12 The Tribunal notes that if the Applicant wishes to appear personally before the Tribunal, section 73 of the ADT Act empowers it to assist the non-represented party to ensure that the party understands both the nature of the proceedings, any assertions and their legal implications.

13 The Tribunal is therefore of the view that leave should be granted to the Respondents to be legally represented at both the mediation and the Tribunal hearing.

ORDER

Leave is granted to the Respondents to be legally represented.