Ford v Mount Gravatt Bowls Club Inc
[2017] QCAT 466
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- Unreported Judgment
- Ford v Mount Gravatt Bowls Club Inc[2017] QCAT 466
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Ford v Mount Gravatt Bowls Club Inc[2017] QCAT 466
Ford v Mount Gravatt Bowls Club Inc[2017] QCAT 466
CITATION: | Ford v Mount Gravatt Bowls Club Inc & Ors [2017] QCAT 466 |
PARTIES: | Lynette Ford (Applicant) |
v | |
Mount Gravatt Bowls Club Inc Alexander Wright Graham Chattin Reg Walls (Respondents) | |
APPLICATION NUMBER: | ADL080-17 |
MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 18 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where parties suffer from serious health conditions that make it difficult and impractical to represent themselves – where a proposed representative is not an Australian legal practitioner – where applications for leave by respondents opposed by applicant – whether tribunal is satisfied the proposed person is an appropriate person to represent the respondent – whether leave should be given for parties to have legal representation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43 Lida Build Pty v Miller [2010] QCATA 17 State of Qld & Muller v Rushton [2011] QCATA 117 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]All parties in the proceeding have applied for leave for representation in the proceeding.
- [2]Ms Lynette Ford applies to be represented by Ms Ann Crocker. She says that she would be disadvantaged if she was required to represent herself because, unlike each of the respondents, she has no experience in business or in relation to, what she refers to, as ‘harassment’ issues. She proposes that Ann Crocker, who she says experienced similar harassment and victimisation by Mount Gravatt Bowls Club and its representatives, is an appropriate representative for her because she is familiar with the people involved and the incidents relating to the complaint.
- [3]Ms Ford further says that she suffers from anxiety and depression which affects her ability to concentrate in stressful situations and that this combined with her age and lack of experience would affect her ability to represent herself. Further, she submits that Mr Chattin, Mr Wright and Mr Walls have legal representation provided through Mount Gravatt Bowls Club’s lawyers at no cost to themselves, while she would be required to finance her own representation.
- [4]The respondents filed an application for leave to be legally represented through the Club’s honorary solicitor. In relation to their application, the Club states that matters relating to the dispute have been before the Anti-Discrimination Commission Queensland (ADCQ) for some three years and that their legal representative had been of assistance in the ADCQ. The Club considers their solicitor best placed to assist the Tribunal in ensuring that relevant matters were dealt with.
- [5]Further, submissions were made that Mr Chattin, Mr Wright and Mr Walls are each ‘elderly’ and each is suffering from various health complaints. Mr Chattin submits that he is in remission from cancer and has been advised by his medical advisors to keep stress levels down. Mr Wright has, at the time of the application in November 2017, undergone recent surgery for cancer and is undergoing chemotherapy. Mr Walls is said to suffer from unspecified health issues. Ms Ford opposes the application made by the respondents.
- [6]I determined the applications on the basis of the submissions made by the parties and without an oral hearing. I made orders granting leave to all parties for legal representation in the proceedings. Ms Ford has requested reasons for my decision.
- [7]Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that generally parties must represent themselves, unless the interests of justice require otherwise.[1] The Tribunal may, in its discretion,[2] grant leave for a party to be represented by a legal representative or another appropriate person.
- [8]In deciding whether to give a party leave to be represented, the Tribunal may consider some circumstances as supporting the giving of leave, including that the proceeding is likely to involve complex questions of fact or law,[3] or that another party to the proceeding is represented.[4] A party cannot be represented in a proceeding by a person who is not an Australian legal practitioner or government legal officer, unless the Tribunal is satisfied the person is an appropriate person to represent the party.[5]
- [9]There have been many Tribunal decisions considering whether legal representation should be allowed in the particular circumstances. Section 43 should be considered in the context of the QCAT Act as a whole. In particular, the requirements of sections 28 and 29, and the objects of the QCAT Act set out in s 3, are relevant.[6] However, it is the interests of justice in the particular case that determine whether leave will be granted.
- [10]Mount Gravatt Bowls Club is an entity which cannot represent itself. It must be represented by a person. Mr Chattin is the Chair. The named representatives of the Club, Mr Wright, Mr Chattin and Mr Walls, are each in poor health and, although age is not a factor of itself that precludes a person from capably representing themselves, their submissions suggest that in combination with their poor health, their advanced years affects their confidence in doing so. Mr Wright and Mr Chattin each have serious health conditions. Although the nature of Mr Walls’ condition is not specified, I further accept that he is suffering from some health conditions and lacks confidence in his ability to represent himself or the Club.
- [11]All of the respondents have previously been represented in the complaint before the ADCQ. I accept that in their current circumstances none of them, Mr Wright, Mr Chattin or Mr Walls, is in a position to represent themselves or the Mount Gravatt Bowls Club. Accordingly, I am satisfied in the exercise of my discretion that it is in the interests of justice to grant leave for them to be legally represented.
- [12]I accept that Ms Ford is also in a situation where her health conditions make it difficult and impractical for her to represent herself. Further, as the respondents are to be legally represented, that is a factor that supports a grant of leave for her to be represented.
- [13]However, Ms Ford’s proposed representative is not an Australian legal practitioner, but a person who has her own grievances with at least one of the respondents, the Bowls Club. She knows each of the persons involved in the proceeding and has been appraised of the incidents.
- [14]Further, Ms Crocker has filed a witness statement (although it contains little detail) in the proceedings which is relied upon by Ms Ford.[7] If the matter proceeds to final hearing, she may likely be a witness in the proceeding who is required for cross-examination.
- [15]In addition, the bundle of documents filed by Ms Ford includes a 2014 letter from Ms Crocker to the secretary of the Mount Gravatt Bowls Club making a complaint to the Board regarding an ‘attack’ on her by Mr Read at the clubhouse.[8] The correspondence refers to the alleged culture at the club. There is a letter in the bundle of 19 June 2014 to Ms Ann Crocker from Mr Read apologising for his inappropriate behaviour and giving her his assurance this behaviour would not be repeated, while also accepting her verbal apology.
- [16]It is reasonable to infer from the material before me that it would be difficult for Ms Crocker to act as an effective representative and advocate for Ms Ford in this proceeding, given Ms Crocker’s own somewhat similar personal issues with the Bowls Club and persons associated with it. I am not satisfied on the existing evidence that she is an appropriate person to act as representative for Ms Ford in the proceeding.
- [17]That said, I am satisfied in my discretion that it is in the interests of justice for Ms Ford to be represented. I grant her leave for legal representation.
- [18]If she is unable, or unwilling, to secure legal representation and wishes to propose another person as an appropriate person to act as a representative in the proceeding, she is able to make another application in that regard. If this course is adopted, Ms Ford is urged to provide evidence that supports the application and demonstrates the appropriateness of the person she seeks to have represent her.
Footnotes
[1] QCAT Act, s 43(1) and (2).
[2] Lida Build Pty v Miller [2010] QCATA 17, [9].
[3] QCAT Act, s 43(3)(b).
[4] Ibid, s 43(3)(c).
[5] Ibid, s 43(4)(b).
[6] See for example, Lida Build Pty v Miller [2010] QCATA 17; State of Qld & Muller v Rushton [2011] QCATA 117.
[7] Applicant’s Submissions, Document W1, filed 17 October 2017.
[8] Applicant’s Submissions, Document A8, filed 17 October 2017.