Department of Education and Training v Jensen and Anor [2012] QCAT 168

CITATION: Department of Education and Training v Jensen and Anor [2012] QCAT 168 PARTIES: Department of Education and Training (Applicant) v Emma Jensen Dwayne Richardson (Respondents) APPLICATION NUMBER: CML015-12 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 13 March 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave is not granted for the applicant to be legally represented in this proceeding. CATCHWORDS: LEGAL REPRESENTATION – orders sought to prohibit specified persons from entry onto school premises – where proceeding not likely to involve complex questions of fact or law – where leave for legal representation not found to be required in the interests of justice Queensland Civil and Administrative Tribunal Act 2009, s 43 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). REASONS FOR DECISION [1] It is alleged by the Chief Executive of the Department of Education and Training that Emma Jensen physically assaulted parents at Kelso State School on 15 November 2011 and 17 November 2011 causing injury. It was also alleged that Mr Richardson was present at the time, that he did not -- 1 of 3 -- 2 attempt to stop the assaults and that he threatened bystanders with violence. The Chief Executive is seeking an order prohibiting Ms Jensen and Mr Richardson from entering the premises at Kelso State School for a period of up to 12 months. [2] The Chief Executive applied to QCAT for leave to be legally represented in the proceeding. Parties in proceedings in QCAT are expected to represent themselves unless the interests of justice require otherwise.1 While QCAT has a discretion whether to grant a party leave to be represented, the QCAT Act in section 43 sets out some factors that the tribunal may consider when considering whether the interests of justice require the giving of leave. [3] The applicant in this case is a State Agency. Section 43 provides that QCAT may consider that factor when determining whether to grant leave for representation. The applicant had submitted that it was in the interests of justice that State agencies, when seeking to invoke application of the laws of the State, are well represented. It was submitted that representation by experienced litigation lawyers was in this case necessary and appropriate and that legal representation would allow the State the best opportunity to put its case in this important matter. [4] Those submissions are not maintainable in light of the clear legislative mandate that parties are expected to represent themselves at QCAT. There was nothing in the submissions that convinced me that the State could not fairly present its case in the absence of legal representation. [5] The QCAT Act requires the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.2 The tribunal must ensure that proceedings are conducted in an informal way that minimises costs to parties.3 It is in the interests of justice that the tribunal conducts its proceedings in line with its statutory objects. The primary focus of QCAT is required to be on the interests of justice which is a wider concept than the relative interests of either party to a proceeding. [6] The applicant also submitted that the case was likely to involve complex questions of law and fact and that in the interests of efficiency, it was preferable that the hearing be conducted by an experienced litigation lawyer. It was submitted that it was possible that almost a dozen witnesses could be called to give evidence and that the tribunal would have to assess the credit of each witness. [7] These submissions did not satisfy me that the State should be legally represented. There was no reasonable expectation that the evidence to be relied on by the State was to be presented orally at the hearing as directions had been made requiring all evidence to be in writing. There was nothing to suggest that Ms Jensen and Mr Richardson would require all or indeed any witness for extensive cross-examination purposes. Neither Ms Jensen nor Mr Richardson had sought to participate in any way in the proceedings since being served with the application in early February 2012. 1 Section 43(1) of the QCAT Act. 2 Section 3(b) of the QCAT Act. 3 Section 4(c) of the QCAT Act. -- 2 of 3 -- 3 [8] The issues to be determined in the application to exclude Ms Jensen and Mr Richardson from the school premises do not in this case involve complex questions of fact. The assaults relied on as basis for the application were witnessed by several persons who had provided statements in the proceedings. The accounts of the witnesses are relatively consistent and it was unlikely that the underlying facts would be seriously in dispute. [9] The applicant had submitted that the application involved complex questions of law: a threshold issue of whether Ms Jensen and Mr Richardson were likely to engage in conduct that would cause harm or apprehension of harm and then whether discretion should be exercised to exclude them from the school premises. I was not convinced by those submissions. [10] The legal issues to be determined in the application are not inherently complex. The issues are generally similar in nature to other issues that QCAT members determine regularly in cases throughout the tribunal’s wide jurisdiction without input from legal representation. I note that a delegate of the Chief Executive had already, without any apparent difficulty, twice exercised a similar discretion to exclude Ms Jensen and Mr Richardson from the school’s premises before lodging the application with QCAT. [11] I was satisfied that even if Ms Jensen and Mr Richardson were to contest the application, the questions of law for determination would not as a consequence increase in complexity. What would be likely to occur in a contested hearing is a focus by the tribunal on ensuring that the parties understand the issues in contention. QCAT has a positive obligation to ensure that all parties understand the nature of assertions made in the proceedings and the legal implications of the assertions.4 That obligation is regularly discharged in the absence of legal representation. [12] I was not satisfied that the interests of justice required the Chief Executive of the Department of Education and Training to be legally represented in this application. Consequently, leave to be legally represented was refused. 4 Section 29(1)(a)(ii) of the QCAT Act. -- 3 of 3 --