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- Unreported Judgment
Gaerlan v Department of Natural Resources, Mines and Energy QCAT 433
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gaerlan v Department of Natural Resources, Mines and Energy  QCAT 433
JASON DAMIEN GAERLAN
DEPARTMENT OF NATURAL RESOURCES, MINES AND ENERGY
General administrative review matters
Date of order 23 November 2018.
Reasons delivered 17 December 2018
On the papers
The application by the Department of Natural Resources, Mines and Energy for leave to be represented in the proceeding by an in-house Australian legal practitioner or government legal officer is refused.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where government agency seeks leave to be represented by an in-house lawyer – whether legal representation should be allowed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 53
Boor v Queensland Building Services Authority  QCAT 41
State of Queensland v Greenland  QCATA 91
State of Queensland and Green v Leadbeatter  QCATA 60
B Szima, Senior Lawyer and legal counsel of the Department of Natural Resources, Mines and Energy
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- Mr Gaerlan has a proceeding before QCAT for a review of a decision of the Department of Natural Resources, Mines and Energy (‘the Department’). That decision was to refuse him a shotfirer’s licence. The review proceeding has not yet been allocated a hearing date.
- On 7 November 2018 the Department filed an application for leave to be represented by an in-house legal practitioner or a government legal officer. On 21 November 2018 Mr Gaerlan filed a submission, in the form of an email, opposing the grant of leave.
Why did the Department refuse to grant a shotfirer’s licence?
- According to the Department’s statement of reasons, it had regard to offences committed by Mr Gaerlan and his diagnosis of post-traumatic stress disorder. The Department noted a 2014 decision of the Court of Appeal to reduce a sentence imposed on Mr Gaerlan, on account of a diagnosis of post-traumatic stress disorder related to military service. The Department said that after it received Mr Gaerlan’s application for a licence, it requested an update from his psychiatrist but it did not receive one. Accordingly, argues the Department, it could not be satisfied that it would be in the public interest for Mr Gaerlan to hold a shotfirer’s licence.
What are the Department’s reasons for seeking leave for legal representation?
- Some of the key points made by the Department are, in summary:
- (a)legal representation will assist the Tribunal, particularly as the Department would be required to conduct itself as a model litigant;
- (b)the matter is relatively complex, as it requires consideration of the QCAT Act, the Explosives Act 1999 (Qld), and ‘case authorities with respect to general administrative review decisions particularly in the context of occupational regulation matters before the Tribunal’;
- (c)legal representation would help to confine the issues and evidence to relevant matters;
- (d)it would ensure ‘objective and dispassionate representation’;
- (e)a departmental legal representative could assist Mr Gaerlan to understand Tribunal processes;
- (f)if the Department is represented by a non-legally qualified staff member, this could result in the Tribunal failing to apply the law correctly, and this in turn would lead to an appeal by the Department;
- (g)the Department has no objection to Mr Gaerlan obtaining legal representation;
- (h)allowing the Department to be legally represented would not disadvantage Mr Gaerlan; and
- (i)the fact that the Department is a state agency is a factor in favour of granting leave for representation.
Why does Mr Gaerlan oppose a grant of leave for legal representation?
- Mr Gaerlan submits that he would prefer to have the matter resolved by the parties through finding ‘mutual ground and understanding in this matter not to battle over legal precedents’. He submits that legal representation is not required and is not the best way to resolve the matter. He considers that participation of the parties will, if he is successful in obtaining the licence, help to prevent a similar contest when the licence comes up for renewal.
Should leave for legal representation be granted?
- The Department relies on both section 43 of the QCAT Act and rule 53 of the QCAT Rules.
- Section 43 of the QCAT Act begins by saying that the main purpose of the section is to have parties represent themselves unless the interests of justice requires otherwise. In deciding whether to grant leave for representation, the Tribunal may consider a number of matters as circumstances supporting the giving of leave. These are, in summary: that the party is a state agency, that the proceeding is likely to involve complex questions of fact or law, that another party is represented, and/or that all of the parties have agreed to the party being represented.
- Rule 53 of the QCAT Rules is to the effect that a state agency may appear in a proceeding through an authorised staff member, but that can be a legal practitioner or government legal officer only with the Tribunal’s leave. Rule 53 does not list factors which may be considered. However, as the grant of leave is discretionary, similar factors to those considered under section 43 will often be relevant.
- In exercising any procedural powers, it is important to keep in mind the objects of the QCAT Act. These include having matters dealt with in a way that is ‘accessible, fair, just, economical, informal and quick’, and to promote the quality and consistency of Tribunal decisions.
- The proceeding in this case is a review proceeding, and so the Department is required to use its best endeavours to help the Tribunal to reach the correct and preferable decision. It was implicitly recognised in State of Queensland v Greenland that in a review proceeding the status of the respondent as a state agency could be a significant factor in granting leave for legal representation. Presumably this is because a legally-trained representative is likely to be better-placed than a non-lawyer in helping the Tribunal interpret the legislation, identify any relevant cases, and so on.
- In Boor v Queensland Building Services Authority, the Tribunal noted that it would be difficult for a decision-maker to fulfil dual roles of assisting the Tribunal and defending his or her own decision.
- On the other hand, the ability of a party to obtain legal assistance in preparing its case without a grant of leave for representation can be a relevant factor in deciding whether the party might be disadvantaged without representation: State of Queensland and Green v Leadbetter.
- A review of these cases indicates that there will often be good reasons in review matters for granting leave to the stage agency for legal representation. However, of course, each matter must be considered on its own merits. Considerations of fairness and informality will often tend to favour the refusal of a grant of leave, while considerations of quality and consistency – which can be particularly important in review matters where protection of the public is important – will often tend in the other direction.
- I accept that there would be some advantages in granting leave in the present case. The protection of the public in ensuring that only appropriate persons handle explosives is vital. A legally-trained departmental representative is likely to be familiar with the processes of the Tribunal, better equipped to confine attention to relevant matters, and so on. The participation of a legal officer who was not involved in making the decision under review can assist in resolution because the legal officer can bring detachment.
- On the other hand, having a level playing field is also an important goal. A self-represented applicant can easily feel overborne in trying to present his or her case when the other party is legally represented, even where the legal representative is conducting himself or herself in a model manner.
- I do not accept that the case is complex. It seems to involve a fairly straightforward evaluation of whether Mr Gaerlan is an appropriate person to hold a shotfirer’s licence, having regard to his criminal history and his mental state. If there are prior cases that should be brought to the Tribunal’s attention, no doubt the legal section of the Department can provide them to the Department’s representative.
- Regardless of who appears for the Department, the Tribunal will be well aware of the need to consider protection of the public.
- Further, any concern about a conflict in roles of decision-maker and departmental advocate can be avoided by the Department selecting a representative (of appropriate seniority) who was not the original decision-maker.
- The Tribunal has an obligation to take all reasonable steps to ensure that each party to a proceeding understands practices and procedures of the Tribunal. This would extend to ensuring that the departmental representative understands his or her obligation to assist the Tribunal in reaching the correct and preferable decision, even if that decision turns out to be different to the Department’s.
- On balance, I am not persuaded that the interests of justice require the grant of leave sought by the Department.
- Published Case Name:
Jason Damien Gaerlan v Department of Natural Resources, Mines and Energy
- Shortened Case Name:
Gaerlan v Department of Natural Resources, Mines and Energy
 QCAT 433
17 Dec 2018