DJ v Lutheran Church of Australia, Queensland District and Ors [2012] QCAT 39

CITATION: DJ v Lutheran Church of Australia, Queensland District and Ors [2012] QCAT 39 PARTIES: DT DA DJ v Lutheran Church of Australia, Queensland District RG SF APPLICATION NUMBERS: ADL004-11 / ADL005-11 / ADL006-11 / ADL122-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 6 January 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave is granted to the respondents in each of the proceedings to be legally represented CATCHWORDS : ANTI-DISCRIMINATION - leave sought for legal representation – whether in interests of justice to grant leave Queensland Civil and Administrative Tribunal Act 2009 – section 43 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION -- 1 of 4 -- [1] These four complaints by DJ and her children, DT and DA arise out of events that are said to have taken place when DT and DA were students at Grace Lutheran College. It is contended that DT and DA have medical conditions that result in impairment. It is contended that DT and DA have been the subject of conduct by the respondents that contravened the Anti-Discrimination Act 1991. DJ contends that she has experienced victimisation as a result of making a complaint about that discriminatory behaviour. The respondents deny that their actions contravened the law. [2] The respondents want to be legally represented in these proceedings. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 provides that parties in proceedings in this tribunal are expected to represent themselves unless the interests of justice require otherwise. [3] The respondents will require the leave of the tribunal to be represented as they do not have an as of right entitlement to be represented.1 The tribunal when determining whether to grant leave must consider whether it is in the interests of justice that the respondents are legally represented. [4] The Act sets out in section 43(3) some factors that the tribunal may, but not must, take into account when considering whether the interests of justice require QCAT to grant leave to a party to be represented. Three out of the four specified factors have no direct relevance in these complaints. I have however considered the issues of fact and law to be determined in the complaints to see whether there is a level of complexity associated with those issues to require the respondents to be legally represented. [5] The facts as stated by DJ and her children in these complaints are not complex but there are multiple events that form the basis of the complaints and there will be multiple issues to be determined from the evidence of the parties. The respondents dispute that the version of facts presented by DJ and her children is correct. There will have to be considerable cross examination of the complainants and of the persons whose conduct is alleged to have contravened the Act in order to test the versions of the respective parties. It is quite likely that the resolution of the factual dispute will largely determine the outcome of the complaints. [6] The individual respondents are teachers or former teachers who at the relevant times held positions of responsibility at the school. One of the individual respondents has retired and has no apparent current connection with the school. The reputations and careers of the individual respondents as educators and school administrators are likely to be adversely impacted should findings be made by QCAT that they had engaged in unlawful conduct towards the complainants. [7] The individual respondents will be expected to cross examine witnesses at the hearing and to present evidence of the right type and extent to 1 Section 43(2)(b)(iv) of the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 4 -- rebut the legal issues inherent in these complaints. It is likely that they have no experience in the use of strategies involved in actively responding at a hearing to complaints based on relatively complex concepts of law. [8] Those factors would not inevitably compel leave being granted for legal representation at a hearing in all cases, especially in cases where the facts are not in dispute or there are single issue complaints. However in the circumstances of the multiple complaints made by DJ, I consider that it would be unjust, when reputations or careers are at stake, to require the individual respondents to appear for themselves and to respond to the serious allegations made against them at a three day hearing without the benefit of legal representation. [9] The corporate respondent is alleged to be vicariously liable for the conduct of its personnel at the school as well as being directly liable for acts of victimisation. The reputation of the Lutheran Church of Australia is likely to be adversely impacted if findings were to be made that it was responsible for unlawful conduct that amounted to a breach of the human rights of students when they were within the pastoral care of the Church. [10] Of course no person or entity is above the law and must be held accountable for proven wrongdoing. My focus at this stage of the proceeding is on the process by which it is sought to establish whether or not the respondents have acted wrongfully towards DJ and her children. That process must be a just process. No party should be unjustly dealt with by the process through which they respond to allegations of serious wrongdoing made against them. [11] Similar to the reason why I found it would be unjust to deny legal representation to the individual respondents, I consider that it would be in the interests of justice to grant leave to the Lutheran Church to be legally represented at the hearing of these complaints. The hearing process in these complaints will not be straightforward but will be demanding and rigorous on the participants. [12] The Church faces the tasks of addressing multiple issues of fact in dispute, of presenting relevant evidence from its multiple witnesses, of cross examining the complainants to test their version of events and of making relevant input into complex issues as they arise at a hearing. The hearing process will require the Church to appear through a human agent who must be able to carry out all those tasks as well as understanding the legal concepts behind the complaints so that its response is targeted and relevant. I am satisfied that such a role in this case can best be carried out by a person legally trained and with experience in this area of the law. [13] I have also given consideration as to whether granting leave for the respondents to be legally represented would result in unfairness to the complainants who are not legally represented. I do not believe so. The complainants have not asked for leave. If they seek leave, it is likely to -- 3 of 4 -- be granted due to the fact that the respondents have been granted leave. DA is still a minor and is entitled to legal representation as of right if she chooses to instruct lawyers in her complaint. [14] Having one party represented while another party is not represented does not necessarily amount to unfairness. It can be a legitimate and understandable option for a person to represent themselves. [15] Financial reasons in some cases may also preclude the engaging of legal representation by one party while another party in the proceeding has the financial means to meet its legal costs. Inequality of access to financial resources does not at QCAT result in inequality of access to justice. It is an express object of QCAT to ensure that fairness and justice is delivered in the manner by which it deals with matters before the tribunal.2 The legislation under which QCAT operates has statutory safeguards to ensure that parties are treated fairly. [16] The tribunal must act fairly and according to the substantial merits of the case.3 The tribunal has a positive obligation to ensure that each party understands the practices and procedures of the tribunal and the nature of assertions made in the proceeding and the legal implications of the assertions.4 Those obligations are taken seriously and ensure that a party who is not legally represented has the same opportunity to a fair outcome as does a party who is legally represented. 2 Section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009. 3 Section 28(2) of the Queensland Civil and Administrative Tribunal Act 2009. 4 Section 29(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 4 --