Angelopoulos v State of Queensland [2021] QCAT 421

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Angelopoulos v State of Queensland [2021] QCAT 421 PARTIES: ANGELOS ANGELOPOULOS (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: ADL003-19 MATTER TYPE: Anti-discrimination matters REASONS DELIVERED ON: 9 December 2021 HEARING DATE: 4 November 2021 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: The parties each have leave to be legally represented in these proceedings CATCHWORDS: LEGAL REPRESENTATION – where State of Queensland’s application for legal representation opposed by self-represented litigant – where respondent a State Agency required to abide by model litigant principles – whether complex issues of fact and law – Tribunal’s obligations to all parties in relation to the proceedings – whether grant of leave would create inequality before the law Human Rights Act 2019 (Qld), s 15 Legal Profession Act 2007 (Qld), s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 29, s 43, Schedule 3 Model Litigant Principles Chaudhary v Medical Board of Queensland [2012] QCAT 172 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Crown Law -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 16 September 2021 the respondent applied for leave to have Crown Law represent it in this matter pursuant to s 43(2)(b)(iv) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). [2] On 4 November 2021 the Tribunal granted leave to each party to be legally represented in the proceedings. The applicant subsequently requested reasons for that decision. These are my reasons. Overview of the proceedings [3] The applicant alleges that he was subject to unlawful discrimination by the respondent in the administration of State laws and programs in contravention of the Anti Discrimination Act 1991 (Qld). [4] The applicant appears to rely on both direct and indirect discrimination in his contentions. The basis for the complaint is, in summary, that the respondent refused to provide burial assistance to the applicant on the occasion of the applicant’s father’s death, to fund a church service and private viewing. The applicant, who is Greek Orthodox, submits that his faith required him to bury his father with a church service and private viewing. The respondent submits that the applicant was offered burial assistance for services that would ordinarily be provided, irrespective of faith, to a person who applied for such assistance. Relevant statutory provisions [5] Section 43 of the QCAT Act is the source of the Tribunal’s power to give leave to a party to be represented in a proceeding. The main purpose of s 43 is to have the parties represent themselves unless the interests of justice require otherwise.1 [6] Section 43 provides: 43 REPRESENTATION (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding, a party— (a) may appear without representation; or (b) may be represented by someone else if— (i) the party is a child or a person with impaired capacity; or (ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or (iii) an enabling Act that is an Act, or the rules, states the person may be represented; or 1 QCAT Act, s 43(1). -- 2 of 5 -- 3 (iv) the party has been given leave by the tribunal to be represented. (3) 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. (4) A party can not be represented in a proceeding by a person— (a) who, under rules made under section 224 (3), is disqualified from being a representative of a party to a proceeding; or (b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party. (5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if— (a) the party is a corporation; or (b) the tribunal has asked for the certificate. (6) The tribunal may appoint a person to represent an unrepresented party. (7) In this section— "Australian legal practitioner" see the Legal Profession Act 2007 . "government legal officer" see the Legal Profession Act 2007 . [7] In this matter, the respondent seeks to be represented by Crown Law. Section 12(1)(a) of the Legal Profession Act 2007 (Qld) defines a ‘government legal officer’ as a person whose employment or appointment in, relevantly, a department of this jurisdiction, includes or may include engaging in legal practice. ‘[T]his jurisdiction’ is defined in Schedule 2 to mean this State. It follows that solicitors of Crown Law who are engaged by the Department of Justice and Attorney-General are ‘government legal officers’ and not prevented by s 43(4) from representing the respondent. [8] Section 43(3)(a) provides that, in deciding whether to grant leave, the Tribunal may consider the circumstances identified in s 43(3)(a) to (d) as supporting the granting of leave. The circumstances include, relevantly: (a) The party is a State agency; and (b) The proceeding is likely to involve complex questions of fact or law. [9] ‘State agency’ is defined in Schedule 3 of the QCAT Act to mean, relevantly, the State. -- 3 of 5 -- 4 Consideration [10] The respondent is the State of Queensland and therefore, is a ‘State agency’ within the meaning of s 43(3)(a) of the QCAT Act. [11] Section 43(3)(a) of the QCAT Act makes clear, in my view, that the fact the applicant for leave is a State agency is a factor which supports the grant of leave. There are obvious public policy reasons why this might be the case. It has been observed in the Tribunal that the State should be permitted to determine which of its employees are most suited to appear on its behalf before the Tribunal, given the position descriptions and functions of its workforce.2 In this matter, the State has determined that it is an appropriate use of resources to employ people as government legal officers to represent the State in legal proceedings. Further, the respondent is under an obligation to meet financial obligations to use taxpayers’ money efficiently, effectively and economically.3 I consider this to be best served by the respondent appearing at a hearing through Crown Law and Counsel. [12] In Chaudhary v Medical Board of Queensland4 Kingham J, in considering whether to grant leave to the Board to be represented where leave was opposed, held: [6] The fact that a party is a State agency does not, of itself, justify representation; otherwise, leave of the Tribunal would not be required. However, it is relevant that a State agency is expected to conform to Model Litigant Principles. [13] The respondent, as a State agency must comply with the Model Litigant Principles.5 The principles require the State to conduct themselves as model litigants in the conduct of all litigation by adhering to certain principles of fairness and firmness. Crown Law, as a State agency, is also bound by those principles. The respondent has submitted that, in accordance with the principles, it will not take unfair advantage of the applicant should they be granted leave to be represented. [14] Further, s 43(3)(b) provides that, if the proceeding is likely to involve complex questions of fact and law, that this also is a factor which may support the grant of leave. [15] The applicant has filed extensive material outlining the evidence he says supports his position. The respondent submits that the parties would benefit from legal representatives at the hearing to ensure only matters relevant to the facts in issue are presented to the Tribunal. Further, that the cross-examination of the applicant is relevant and appropriate. I accept that the parties and Tribunal will benefit from having legal representatives at the hearing to ensure the parties address only relevant factual issues. [16] The respondent has outlined in its submissions in support of this application, the legal issues raised by the complaint.6 I accept that the issues involve a reasonably high level 2 Rushton v State of Queensland & Muller [2011] QCAT 440. 3 Financial Accountability Act 2009 (Qld), s 61. 4 [2012] QCAT 172. 5 Model Litigant Principles (revised as at 4 October 2010). 6 Respondent’s submissions filed on 16 September 2021 at [31] to [34]. -- 4 of 5 -- 5 of complexity and that the parties and Tribunal will benefit from having legal representatives at the hearing to identify and analyse relevant legal issues. [17] The question of whether to grant leave also occurs against the broader statutory framework which requires the Tribunal to act fairly and to observe the rules of natural justice.7 The Tribunal is not bound by the rules of evidence, or by practices or procedures applying to courts of record, other than to the extent it adopts them.8 It has the responsibility to ensure that all parties understand the practices and procedures of the Tribunal, the nature of any assertions made and their legal implications, and any decision of the Tribunal.9 [18] In view of the obligations owed by the Tribunal and the respondent, I do not accept the applicant’s submission that granting leave to the respondent would create inequality before the law, in contravention of s 15 of the Human Rights Act 2019 (Qld). All litigants must be treated equally in the Tribunal and the Tribunal owes the same obligations to each, whether they are represented or not. The Tribunal has an overriding duty to ensure a fair hearing.10 What is required to achieve a fair hearing will obviously depend upon the circumstances. However, as I have outlined above, the Tribunal has the necessary powers to ensure a fair hearing, one aspect of which is the power to give assistance to a litigant in person.11 [19] On balance, I find that it is in the interests of justice for both parties and in the interests of the efficient and fair resolution of this matter,12 that the respondent have leave to be legally represented. Although the applicant has not applied for leave to be legally represented, he has previously had legal assistance in the matter, in particular, to assist with the preparation of his contentions. The applicant may choose to engage a lawyer in the future or be successful in obtaining pro bono assistance to have legal representation at a future compulsory conference or hearing. In these circumstances, the Tribunal decided to grant leave for legal representation to each party. 7 QCAT Act, s 28(3)(a). 8 QCAT Act, s 28(3)(b). 9 QCAT Act, s 29. 10 Tomasevic v Travaglini (2007) 17 VR 100 at [45]. 11 Santamaria v Secretary to Department of Human Services [1998] VSC 107 at [28]. 12 QCAT Act, s 3, s 4. -- 5 of 5 --