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Litherland v Sunshine Coast Regional Council[2019] QCAT 75

Litherland v Sunshine Coast Regional Council[2019] QCAT 75

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Litherland v Sunshine Coast Regional Council [2019] QCAT 75

PARTIES:

NICKY LITHERLAND  

(applicant)

 

v

 

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

ADL035-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

7 February 2019

HEARING DATES:

On the papers

DECISION OF:

Member Traves

ORDERS:

Sunshine Coast Regional Council has leave to be represented in these proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where party seeking leave is a State agency – whether complex questions of fact or law – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 53

REPRESENTATION:

 

Applicant:

Self -represented

Respondent:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. [1]
    On 7 February 2019 I made an order granting leave to the respondents to be represented. Mr Litherland has requested reasons for that decision.
  2. [2]
    This matter concerns whether the Council directly or indirectly discriminated against Mr Litherland within the meaning of the Anti-Discrimination Act 1991 (Qld) by contacting him by telephone in circumstances when he has ‘telephonophobia’ (a reluctance or fear of making or taking phone calls) and had advised Council not to contact him by telephone.
  3. [3]
    On 6 November 2018 the Sunshine Coast Regional Council made an application to be represented by its in house legal officer. In summary, the Council made the application on the following grounds:
    1. (a)
      The Council as a body corporate must act through an appropriate delegated officer, which includes an in house legal officer. There are no other officers within the Council who would normally have carriage of these types of matters, particularly as the complaint relates to conduct across a number of different instances, officers and departments of the Council.
    2. (b)
      The in house legal officer has had carriage of the matter to date and is therefore across the relevant facts and circumstances.
    3. (c)
      The matter involves legal issues such as, whether the alleged conduct is capable of constituting indirect discrimination within the meaning of the AD Act.
    4. (d)
      In house legal officers manage disputes in a pragmatic manner and it is not proposed to appoint external solicitors.
  4. [4]
    Mr Litherland opposed the application. In summary, his reasons were as follows:
    1. (a)
      The Tribunal supports self-representation.
    2. (b)
      He cannot afford legal representation and so an imbalance would arise which would be unfair.
    3. (c)
      A State agency can appear through an authorised employee as of right, but requires leave to appear through an Australian legal practitioner or government legal officer (rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld)).
    4. (d)
      The obligations of the Tribunal to each party as set out in s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) negate the need for representation.
    5. (e)
      A preference to be represented is not sufficient.
    6. (f)
      The fact Council has been represented before in separate proceedings before the Tribunal should not affect the decision in relation to this application for leave.
    7. (g)
      The matter is not complex legally or factually and, in any event, the Council has not demonstrated any such complexity.
    8. (h)
      The application for leave was signed ‘Sunshine Coast Regional Council’ and was not, therefore, properly signed.

Consideration

  1. [5]
    Section 43 of the QCAT Act provides that parties are to represent themselves in proceedings unless the interests of justice require otherwise. Section 43(3) provides that in deciding whether to give a party leave to represented, the Tribunal may consider the following as circumstances supporting the giving of leave:
    1. (a)
      the party is a State agency;
    2. (b)
      the proceeding is likely to involve complex questions of fact or law;
    3. (c)
      another party to the proceeding is represented;
    4. (d)
      all of the parties have agreed to the party being represented in the proceeding.
  2. [6]
    It is important to appreciate that the circumstances in s 43(3) are not merely circumstances to consider in exercising the discretion as to whether to give leave, they are factors which, if applicable, support the giving of leave.
  3. [7]
    Rule 53(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that a State agency may appear through an employee, officer or member of the agency who is authorised to act for it in the proceeding. However, this is qualified by rule 53(2) which provides that leave is required if the State agency is to appear through an Australian legal practitioner or government legal officer.
  4. [8]
    The Council is a State agency pursuant to Schedule 3 to the QCAT Act which defines a ‘state agency’ to include a local government. This supports the granting of leave. Further, there are factual disputes and complex legal issues.[1] These include whether Mr Litherland has an ‘impairment’ within the meaning of the AD Act; whether, in the case of direct discrimination, the Council treated Mr Litherland less favourably than a person without his impairment; and/or whether, in the case of indirect discrimination, the Council imposed an unreasonable condition with which Mr Litherland could not comply and with which a higher proportion of people without his impairment could comply.
  5. [9]
    I do not accept the proposition that the Council should not be given leave because
    Mr Litherland does not have legal representation.[2] Mr Litherland has not applied for it. I also do not consider Mr Litherland will be prejudiced by the Council being represented or that giving leave will be unfair to Mr Litherland.
  6. [10]
    Self-represented litigants benefit from a number of statutory safeguards.  The Tribunal must ensure that all proceedings are conducted in a manner that is fair and according to the substantial merits of the case[3] and that each party understands the practices and procedures of the Tribunal, as well as the nature and legal implications of assertions made.[4]
  7. [11]
    The giving of leave in these circumstances is also consistent with the objects of the QCAT Act as expressed in s 3, particularly in assisting the Tribunal to deal with the matter in a way that is economical and quick.
  8. [12]
    There is no substance to the issues raised by Mr Litherland in relation to the way in which the application was signed.
  9. [13]
    Accordingly, I give leave to the Council to be legally represented.

Footnotes

[1] Rintoul v State of Queensland [2014] QCAT 102, [14].

[2] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079.

[3]  QCAT Act, s 28(2).

[4]  QCAT Act, s 29(1)(a).

Close

Editorial Notes

  • Published Case Name:

    Nicky Litherland v Sunshine Coast Regional Council

  • Shortened Case Name:

    Litherland v Sunshine Coast Regional Council

  • MNC:

    [2019] QCAT 75

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    07 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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