Beck v Rowan [2017] QCAT 51

CITATION: Beck v Rowan [2017] QCAT 51 PARTIES: Jennifer Beck (Applicant) v Blair Rowan (Respondent) APPLICATION NUMBER: ADL085-16 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 24 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is granted to Jennifer Beck to be legally represented in this proceeding. CATCHWORDS: HUMAN RIGHTS – GROUND OF DISCRIMINATION – OTHER MATTERS PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where complaint of sexual harassment, vilification and victimisation referred to Tribunal – where leave for legal representation sought – where application for leave opposed by other party – whether complex issues of fact and law – whether interest of justice required leave to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] A complaint was referred to the Tribunal by the Anti-Discrimination Commission Queensland in which Jennifer Beck complains that she was subjected to conduct by Blair Rowan that was in breach of the Anti- Discrimination Act 1991 (Qld). Ms Beck applied to the Tribunal for leave to be legally represented in the proceeding before the Tribunal. That application was opposed by Mr Rowan. [2] Under section 43 of the QCAT Act, parties in the Tribunal are expected to represent themselves. However, the Tribunal can exercise its discretion and grant leave to a party to be legally represented if the interests of justice require an order to be made for representation. The QCAT Act provides in s 43(3) some factors that the Tribunal may consider when deciding an application for leave for legal representation but generally the Tribunal has a discretion whether to grant leave or not. [3] Ms Beck submitted that this proceeding has complex issues of law and fact. She submitted that her complaint is one of sexual harassment which is alleged to have occurred by email correspondence which came to her attention. Ms Beck submitted that Mr Rowan has denied responsibility, as he did not intend Ms Beck to see the offending emails. Ms Beck anticipated that Mr Rowan will argue that such indirect sexual harassment is not conduct covered by the Anti-Discrimination Act. [4] Ms Beck submitted that it will be her case that the subjective intention of Mr Rowan is irrelevant in circumstances where a reasonable person would have anticipated the possibility that Ms Beck would be offended, humiliated or intimidated by Mr Rowan’s conduct. Ms Beck submitted that she will rely on authorities that support that proposition. [5] Ms Beck also relies on vilification as a ground of her complaint. She submitted that Mr Rowan, by the sending the emails and by writing remarks on a whiteboard, had engaged in acts which were public acts that intended to incite hatred towards, serious contempt for, or severe ridicule of Ms Beck. [6] Lastly, Ms Beck submitted that words used by Mr Rowan in other emails will be relied on to support her allegation that she has been the subject of victimisation by Mr Rowan. [7] Mr Rowan has submitted that: Ms Beck is capable of making decisions on her own; she is in no better or worse position than Mr Rowan in being self- represented in this proceeding; he would be disadvantaged if Ms Beck were allowed to be legally represented; the matter is quite simple factually; Ms Beck has relied on a matter that is irrelevant to this anti-discrimination complaint; Ms Beck’s lawyers have introduced complexity and difficulty into the matter rather than providing assistance to simplify and resolve the matter; extraneous matters, referred to by Ms Beck in her submissions, should be left out of the complaint of discrimination; and Ms Beck’s submissions reveal that her lawyers intend to extend and cloud the issues before QCAT. -- 2 of 3 -- 3 [8] Mr Rowan has asserted that the facts of the complaint are simple but he has not disputed that the issues of law are complex. The allegations of Ms Beck raise complex issues of law and possibly complex issues of fact. What she describes as indirect sexual harassment is not frequently encountered in complaints to this Tribunal and in order to be established, Ms Beck will be required to manoeuvre through novel and complex issues of law. The factual basis of her claims for vilification and victimisation is not straightforward and will require precise evidence to be adduced if her complaint is to be upheld. [9] The Tribunal is satisfied that the presence of lawyers skilled and knowledgeable in anti-discrimination law could assist the Tribunal in efficiently deciding the novel and complex issues in this complaint. The argument by Mr Rowan that the presence of lawyers would tend to introduce added and artificial complexity to the complaint is not accurate. Rather, such a comment exemplifies the lack of appreciation that self-represented litigants would be likely to bring to the factual and legal complexities in this case. [10] It is in the interests of justice that the parties are able to present their cases properly with the full appreciation of the legal implications of the issues they raise. While s 29 of the QCAT Act places an obligation on the Tribunal to take all reasonable steps to ensure that each party understands the nature of assertions made in a proceeding and the legal implications of the assertions, it can be difficult for the Tribunal to discharge that obligation fairly to the parties when both parties are self-represented and when the parties have not identified complex issues that need to be resolved by the Tribunal. In such cases, legal representation can provide assistance for complex legal issues to be fully identified and resolved by the Tribunal based on interpretation of the law in accordance with relevant authorities. [11] Ms Beck has asked for legal representation in order to present her case in a manner where all the complexities are addressed and explained by persons skilled in the law. In this case, that request accords with the requirements of s 43(1) of the QCAT Act that legal representation is permitted when the interests of justice requires leave to be granted. -- 3 of 3 --