Considine v State of Queensland & Carpenter [2013] QCAT 566

CITATION: Considine v State of Queensland & Carpenter [2013] QCAT 566 PARTIES: Savannah Considine (Applicant) v State of Queensland Gregg Douglas Carpenter (Respondents) APPLICATION NUMBER: ADL078-13 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 28 October 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave is not granted to the respondents to be legally represented up to and including the compulsory conference in this proceeding. CATCHWORDS: ANTI-DISCRIMINATION – where single incident the subject of a complaint – where leave for legal representation sought – where not satisfied that interests of justice require some of the parties to be legally represented up to the compulsory conference Queensland Civil and Administrative Tribunal Act 2009 ss 3, 43 State of Queensland and Green v Leadbeater [2011] QCATA 60 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Ms Considine has complained that she has been subjected to conduct by the respondents which is in breach of the Anti-Discrimination Act 1991. Although her complaint to the Antidiscrimination Commissioner covered conduct that had allegedly occurred from September 2010 to mid 2012, the Commissioner refused to accept that part of her complaint about conduct that had occurred prior to 10 December 2011. [2] Accordingly, the complaint referred to QCAT appears to be about conduct by Mr Carpenter that occurred on a single occasion in a lift in mid 2012. It appears that Mr Carpenter has not admitted that the conduct complained of took place. [3] The respondents applied for leave to be legally represented in this proceeding at QCAT. Ms Considine objects to leave being granted. [4] Parties in proceedings at QCAT are expected to represent themselves but leave for parties to be legally represented can be given in the interests of justice.1 Section 43(3) of the QCAT Act sets out matters that the tribunal may take into account when considering whether the interests of justice require leave to be granted for a party to be legally represented. [5] One of those matters, supporting the granting of leave, is whether a party is a State agency. The respondents submit that this provision should be interpreted as the legislature acting in a way consistent with the proposition that it is in the public interest that the State be legally represented. However, that submission detracts from and is inconsistent with the clearly expressed principle in section 43(1) that parties are expected to represent themselves at QCAT. [6] Nothing in the QCAT Act suggests that in civil cases such as anti- discrimination complaints the status of the Crown as a party is any different from the status of any other party. If other parties are expected to self represent, then the interests of justice would require the Crown to be subject to the same requirement. This is not a case where the mere presence of a State agency satisfies the tribunal that leave to be represented should be granted.2 [7] It was submitted that it was in accordance with the objects of the QCAT Act that the respondents be legally represented in all stages of this proceeding so that costs and time delays could be kept to a minimum. The objects of the Act in question is for the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.3 That object underpins the principle in section 43 that parties represent themselves at QCAT so that persons involved in creating a dispute can be directly involved in the steps at QCAT designed to resolve that dispute. 1 QCAT Act s 43. 2 See discussion in State of Queensland and Green v Leadbeater [2011] QCATA 60 at [10] to [17]. 3 QCAT Act s 3. -- 2 of 3 -- 3 [8] It is entirely consistent with the objects of the QCAT Act that the tribunal conducts proceedings in a manner that ensures the proceedings are accessible for all the parties and not just for some of the parties. The focus is on what is in the interests of justice and not what is in the unilateral interest of some of the parties. Overall the submissions by the respondent seek, quite understandably, to promote the interests of the respondents. However, the focus of the tribunal when considering an application for leave under section 43 must be on the interests of justice in the circumstances of this case at this stage of the proceeding and not just on the convenience of the parties seeking legal representation. [9] While issues arising from anti-discrimination complaints are generally quite complex, the complaint did not disclose the presence of complex questions of fact or law. Ms Considine alleges an incident took place which she describes as sexual harassment. She must establish that the incident took place as she describes it and that Mr Carpenter and, vicariously, his employer breached the Anti-Discrimination Act. The complaint will be considered at a compulsory conference. [10] The compulsory conference will provide an opportunity for the parties to consider the risks involved in this complaint remaining unresolved. The parties can consider at the conference some practical ways of overcoming those risks before the tribunal makes its own decision on the complaint. I was satisfied that the narrow and relatively straightforward compass of the facts involved in this complaint would not render the complaint beyond the ability of the parties to understand and resolve. I am not satisfied by the submissions of the respondents that the interests of justice require leave for legal representation at the conference stage of this complaint. [11] I am satisfied that the general position that parties are to represent themselves at QCAT should not be departed from in this case pending genuine participation by the parties in the compulsory conference. Leave for legal representation is refused for the conference stage. However if the complaint is not resolved at the conference, the parties can resubmit an application for leave to be legally represented for the balance of the proceeding. -- 3 of 3 --