Botha v State of Queensland and Brown [2010] QCAT 382

CITATION: Botha v State of Queensland and Brown [2010] QCAT 382 PARTIES: Nico Emanuel BOTHA v First respondent State of Queensland Second respondent Gareth Brown APPLICATION NUMBER: ADL015-10 MATTER TYPE: Anti-Discrimination Matters HEARING DATE: 25 June 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 4 August 2010 DELIVERED AT: Brisbane ORDERS MADE: Leave is not granted to any party for legal representation CATCHWORDS : LEGAL REPRESENTATION – leave sought by parties in anti-discrimination claim – section 43 of the Queensland Civil and Administrative Tribunal Act 2009. APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 5 -- REASONS FOR DECISION 1. Nico Botha has complained that on 20 August 2008 Gareth Brown, in the course of his employment with the first respondent, used language in a conversation with Mr Botha and engaged in conduct that is alleged to constitute unlawful discrimination on the grounds of race. He alleges that the employer of Mr Brown was vicariously liable for the unlawful discrimination. 2. Mr Botha has claimed that as a result of the incident he sustained certain physical and psychological ill health consequences. 3. Mr Botha, Mr Brown and the employer, the State of Queensland, have sought leave to be legally represented in the proceeding. The parties have filed written submissions in support of their respective applications for leave. The submissions are to the effect that the proceeding involves complex questions of law or fact, that one of the parties is a State Agency and all of the parties have agreed to the parties being legally represented in the proceeding. 4. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) where relevant provides as follows: (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 (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…….. -- 2 of 5 -- 5. Rule 53(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised to act for it in the proceeding. However, rule 53(2) provides that leave from the Tribunal is required if a State agency seeks to appear through an Australian legal practitioner. 6. In view of the requirement in section 43(1) of the Act that the parties are expected to represent themselves unless the interests of justice require otherwise, the Tribunal analysed the information currently available about the proceeding to consider if there was an apparent basis for the granting of leave. No contentions had been filed by the parties that set out the basis of the claim but there were documents filed in the Tribunal as a consequence of the referral of the matter from the Anti-Discrimination Commission Queensland. 7. According to the documents which had been sent to the Tribunal with the referral of the matter from the Anti-Discrimination Commission Queensland, the State Agency in the proceeding, Queensland Health, had conducted an investigation into the complaint of discriminatory conduct made by Mr Botha. It appears that the human resource manager and the chief executive officer of the Mount Isa Health Service District were directly involved in conducting the investigation into the complaint. Mr Brown had prepared a written statement about the incident which confirmed part of the factual claims made by Mr Botha. 8. Mr Brown tendered a written apology for his conduct in September 2008 and in doing so he admitted he had used words that could have caused offence. Mr Brown resigned from Queensland Health a short time following the incident on 20 August 2008. 9. The senior staff of the first respondent involved in the investigation, namely the human resource manager and the chief executive officer of the Health District, would be expected to have a good understanding of the facts of the claim made by Mr Botha. They should, by virtue of the positions that they held at the time, have a good understanding of the employer’s policies that implement and promote safe work practices in their workplace. They should also have knowledge of how employees are trained about those policies and how the policies are enforced. 10. The Tribunal considers that it will be best assisted in dealing with this case in a way that is fair, just, economical and informal, as required by the objects of the Act, by having parties, including staff of the first respondent, with actual knowledge of the factual matrix of the claim present the case for each party. Nothing in the submissions contends that they would be unable to assist the Tribunal directly in this manner. 11. The Tribunal has an obligation to take all reasonable steps to ensure each party to a proceeding understands the practices and procedures of the Tribunal and understands the nature of the assertions made in the proceeding and the legal implications of the assertions. The Tribunal complies with that obligation by explaining to the parties the Tribunal’s practices and the issues involved in the proceeding together with an explanation of the legal issues arising from the claim and from the defence of the claim. -- 3 of 5 -- 12. The Tribunal considers that the effect of the requirement in section 29 of the Act is to prevent any party from being disadvantaged by not having legal representation present at a hearing or compulsory conference in circumstances when the Tribunal is satisfied that the interests of justice do not otherwise require a party to be legally represented. 13. The first respondent in its submissions has raised the likelihood that it will defend the claim of vicarious liability by relying on the provisions in section 133 of the Anti-Discrimination Act 1991. It was submitted that the issues inherent in this defence involve complex questions of fact and law as some form of due diligence is required to be undertaken together with a legal assessment as to whether the information gathered during the due diligence process meets the requisite test to establish the proposed defence. 14. The first respondent does not need leave of this Tribunal in order to have its lawyers conduct a due diligence process nor to have its lawyers provide advice about the prospects of success of the proposed defence. The information gathered can be analysed and given context by the lawyers for the first respondent. The Tribunal considers that an experienced and senior staff member of the first respondent should have the ability to present that information to support the defence of the claim, either orally or by way of tendered written submissions at the hearing. 15. It was submitted that the calculation of damages is a complicated issue requiring detailed knowledge of legal matters. The first respondent does not require leave to obtain legal advice on such issues and can, if it chooses to do so, present information on the appropriateness of compensation prepared with the assistance of its lawyers to the Tribunal at the hearing. 16. It is not the responsibility of the parties to determine the nature or quantum of compensation in this case as that responsibility remains with the Tribunal. The parties have an opportunity to provide input into that determination during the course of the proceeding and not just at the hearing. Mr Botha will be expected to provide in his contentions some particulars of the outcomes he is seeking in his claim and the respondents will have ample opportunity to consider his claim and organise their responses to that claim prior to the hearing. Neither Mr Botha nor the respondents will be expected to be familiar with case law authorities on quantum but they will be expected to understand the nature of the claims made by Mr Botha and the rationale behind the responses to the claims. 17. The Tribunal has taken account of the submissions that it will be cost efficient for the parties to be legally represented and as such would meet the stated legislative intention behind section 43 for the Tribunal to conduct its proceedings in a manner that avoids unnecessary costs. The Tribunal has not been persuaded that granting leave for legal representation will achieve the outcome of minimising costs for the parties. To the contrary, it is more likely that granting leave for legal representation will inevitably result in parties incurring costs that would not need to be incurred if parties were to represent themselves. 18. In addition to the parties incurring their own costs, the presence of legal representation would most likely lead to one or more of the parties seeking -- 4 of 5 -- an order for costs against the unsuccessful party at the conclusion of the proceeding. The Tribunal is unlikely to be in a position where it could order the payment of costs against a party at the end of a hearing when none of the parties are legally represented in the proceedings. The removal of the prospect of costs being ordered in favour of or against a party allows the parties to focus on the issues central to resolving the claim and not to be unduly influenced by the spectre of costs. 19. The Tribunal was not persuaded that in this case the interests of justice require the parties to be legally represented. Leave is not granted to the parties to be legally represented in the proceedings. -- 5 of 5 --