Chen v Groom & Anor [2012] QCAT 604

CITATION: Chen v Groom & Anor [2012] QCAT 604 PARTIES: Sue Chen (Applicant) v Phillip Groom (First Respondent) Lozcas Investments Pty Ltd (Second Respondent) APPLICATION NUMBER: ADL083-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 26 October 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave is granted to Sue Chen to be legally represented in this proceeding. CATCHWORDS: ANTI-DISCRIMINATION – where complex questions of law involved in complaint of racial discrimination, racial vilification and victimisation – where accessibility considerations take into account the diverse needs of complainant Queensland Civil and Administrative Tribunal Act 2009, ss 4(e), 43 Anti-Discrimination Act 1991, preamble APPEARANCES and REPRESENTATION (if any): APPLICANT: Sue Chen represented by Tony Stolar of Gregg Lawyers Pty Ltd RESPONDENT: Phillip Groom and Lozcas Investments Pty Ltd on their own behalf 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 Chen has complained that she had been subjected by the respondents to unlawful discrimination on the basis of her race and that she had been vilified and victimised because of her complaint of unlawful discrimination. Her complaint has been referred to QCAT for determination. [2] Ms Chen has sought leave to be legally represented in this proceeding in QCAT. As parties are expected to represent themselves in QCAT proceedings, the tribunal must be satisfied that the interests of justice require her to be represented before leave can be granted for this purpose.1 [3] Submissions were made to QCAT on behalf of Ms Chen that the interests of justice required leave for legal representation to be granted. Specifically it was submitted that the proceeding was likely to involve complex questions of fact and law. The complaint is based allegations that Ms Chen’s residential tenancy was terminated on grounds that were in breach of the Anti-Discrimination Act 1991. The facts alleged by Ms Chen underlying the complaint are disputed by the respondents who have to date provided a different factual matrix for the action taken against Ms Chen. [4] The complaint is based on an assertion of racial discrimination but is also said to include claims of vilification and victimisation. While the issues inherent in establishing claims of racial discrimination can be difficult to determine in themselves, the involvement of additional issues of vilification and victimisation will be likely to give raise to quite sophisticated and difficult legal questions to determine by the tribunal. [5] It will be useful to have input from persons trained in law on the complex issues in this complaint. That input can assist the tribunal to identify and clarify the legal issues in dispute and to assist the tribunal to deal with the matter in a way that meets the objects of the QCAT Act to be fair and just. [6] In addition it was submitted on behalf of Ms Chen that English is not her first language and that she becomes very anxious and stressed when in a court situation and when confronted by Mr Groom. While the use of an interpreter will assist Ms Chen to communicate with the tribunal, an interpreter will not be able to explain legal concepts that are unfamiliar or foreign to her. Language and cultural barriers can exacerbate difficulties that persons unfamiliar with the Australian justice system can experience. [7] It was further submitted on behalf of Ms Chen that she may have to withdraw her complaint if she cannot have the support of legal representation in this proceeding. By making her complaint, Ms Chen is seeking to have her human rights upheld if her assertions made against the respondents of unlawful conduct are proven to the satisfaction of an independent tribunal. The QCAT Act set up QCAT to be an accessible 1 Section 43 of the QCAT Act. -- 2 of 3 -- 3 means of attaining justice for the people of Queensland. QCAT must be responsive to the diverse needs of persons who use the tribunal.2 [8] While one aspect of being accessible is supporting the capacity of persons to appear for themselves at QCAT, another part of being accessible is responding sensitively and appropriately to the needs of the parties coming to QCAT. The Parliament of Queensland has expressly passed anti-discrimination legislation in order that everyone should have the right to equal protection and benefit of the law without discrimination and in order to protect fragile freedoms in accordance with the aspirations and needs of contemporary society.3 The tribunal was satisfied that in this case Ms Chen may not fully achieve the benefit of being able to complain about what she sees as a breach of her rights if she feels compelled to withdraw her complaint if legal representation is withheld from her. [9] The combination of a case involving complex legal questions, disputed facts, language and cultural barriers, a high level of anxiety and an unwillingness to take on the carriage of this matter by herself leads me to conclude that the interests of justice require Ms Chen to have the opportunity to be legally represented in this proceeding. [10] The respondents do not support leave being granted to Ms Chen. They have submitted that granting leave to Ms Chen will compel them to engage legal representation and they assert such a position is contrary to the objects of the QCAT Act. I do not accept that submission. It is quite open to the respondents to appear without representation throughout this proceeding. The tribunal will not decide the complaint against the respondents merely because they may be representing themselves. The tribunal will decide the complaint on the proven evidence and by applying the law regardless of whether one party is legally represented or not. 2 Section 4(e) of the QCAT Act. 3 See preamble of the Anti-Discrimination Act 1991. -- 3 of 3 --