DTJ v State of Queensland[2024] QCAT 615

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   DTJ has made a complaint against the State of Queensland arising out of the way she says she has been treated by members of the police service in the context of reports by her of domestic family violence, including false entries about her mental health which she claims have been made in police records. The complaint, on its face, alleges impairment discrimination and sex discrimination in the area of the administration of State laws and programs under the Anti-Discrimination Act 1991 (Qld) (‘ADA’) and identifies allegations of limitations of a number of human rights under the Human Rights Act 2019 (Qld) (‘HRA’).
2. [2]
   On 12 September 2024 the State of Queensland filed an application for leave to be legally represented by Queensland Police Service Legal Services.
3. [3]
   That same day, DTJ filed submissions in response agreeing that both parties would benefit from legal representation, particularly given the complexities of the matter which made legal representation necessary to ensure fairness and justice. DTJ also submitted that she should be granted funding by the State of Queensland to enable her to secure private legal representation.
4. [4]
   On 2 December 2024 I granted leave to each of the parties to be legally represented in the proceedings and granted an extension of time for DTJ to file her Statement of Contentions and for the State of Queensland to file its Response.
5. [5]
   DTJ has requested reasons for the decision to grant the parties leave to be represented. These are my reasons.

Relevant statutory provisions

Legal representation

6. [6]
   The present application is brought pursuant to s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
7. [7]
   Section 43 provides, relevantly:

43 Representation

(1)The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

(2) In a proceeding, a party—

(a) may appear without representation; or

(b) may be represented by someone else if—

(i) the party is a child or a person with impaired capacity; or

(ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

(iii) an enabling Act that is an Act, or the rules, states the person may be represented; or

*These reasons were amended on 8 July 2025 by making amendments to anonymise the applicant.

(iv) the party has been given leave by the tribunal to be represented.

(3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

(a) the party is a State agency;

(b) the proceeding is likely to involve complex questions of fact or law;

(c) another party to the proceeding is represented in the proceeding;

(d) all of the parties have agreed to the party being represented in the proceeding.

…

8. [8]
   ‘State agency’ is defined, relevantly, to include the State.^[1]
9. [9]
   Rule 53(1) of the QCAT Rules provides that a State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding. However, rule 53(2) provides that leave is required if a State agency seeks to appear through an Australian legal practitioner or government legal officer.^[2] Accordingly, notwithstanding the QPS Legal Service are employees of the State agency, because they are government legal officers, leave is required.
10. [10]
    The approach to s 43 was considered recently by the Court of Appeal in Health Ombudsman v du Toit.^[3] There the court recognised that the considerations relevant to the issue of leave will be different depending upon the complexity of the proceedings:

…the Explanatory Notes recognised that in circumstances where “complex questions of fact and law [are involved] or where another party is represented”, principles of natural justice would require representation to be afforded to parties. …

The reasoning underlying the structure of s 43 – whereby it denies representation as a general rule but allows it in limited circumstances – was set out as follows:

“The approach in clause 43 is considered to be most appropriate as it provides the tribunal with flexibility in the conduct of a diverse range of matters while ensuring parties are afforded procedural fairness.”^[4]

Consideration

11. [11]
    By s 43(2)(b)(iv), the Tribunal is empowered to grant leave and, in doing so, may consider the circumstances in s 43(3) as supporting the granting of leave.
12. [12]
    In my view, the following circumstances in s 43(3) support the grant of leave:

    1. the applicant for leave is a State agency;
    2. the matter is likely to involve complex questions of fact or law;
    3. the parties agreed that each party should be legally represented in the proceeding.

State agency

13. [13]
    The State of Queensland is named as respondent on the basis that the conduct complained of involved police officers, for whom the State is vicariously liable.

Complexity

14. [14]
    The complaint involves allegations of discrimination against police officers in the way they treated MDTJ as the alleged victim of domestic family violence. The alleged conduct is said to result from a culture of misogyny in the police force. The complaint also includes allegations to the effect that DTJ was treated less favourably by police due to allegedly inaccurate reporting in police records to the effect that she has a mental health condition. The complaint gives rise to issues of whether there has been discrimination on the basis of sex and/or impairment in the administration of State laws and programs.
15. [15]
    The matter is one of both legal and factual complexity for the following reasons:

    1. The matter is likely to raise questions of police procedures, investigation processes and how they apply to members of the public.
    2. The matter is likely to involve consideration of legal concepts that apply to the investigation of domestic family violence matters including defences and how police determine whether there is a prima facie case.
    3. The matter will likely involve consideration of the factual matrix that prompted the allegations by DTJ of domestic family violence.
    4. There will likely be a number of witnesses and various disputed facts.
    5. The matter will likely require the application of the tests for direct and indirect discrimination and burden of proof provisions in the Anti-Discrimination Act 2019 (Qld) which can be nuanced and difficult to apply.
    6. The matter will likely involve consideration of whether limitations of various human rights under the Human Rights Act 2019 (Qld) has occurred.
16. [16]
    In those circumstances, the involvement of legal practitioners will enable the proceedings to be dealt with more efficiently.

Position of the respondent to the application for leave (the applicant in the substantive proceedings)

17. [17]
    DTJ submitted:

The Applicant acknowledges that the matter involves complex questions of fact and law and that it is in the public interest for both parties to be legally represented.

…

The Applicant agrees with the Respondent’s assertion that both parties would benefit from legal representation to ensure that the Tribunal considers key evidence and discusses relevant issues, potentially leading to a resolution.^[5]

18. [18]
    Although DTJ accepts that both parties should be legally represented it is clear from her submissions she has been unable to obtain legal representation on a “no cost” or “no-win, no-cost” basis. DTJ submitted that it would be in the interests of justice for the Tribunal to order the State of Queensland to provide a grant to her ‘to secure private legal representation for the duration of these proceedings’. The Tribunal does not have the power to make such an order.
19. [19]
    I am satisfied that even if DTJ is unable to secure her own legal representation she will not be prejudiced. The respondent is obliged to comply with the Model Litigant Principles which include a requirement to use the power of the State for the public good and in the public interest and that the principles of fairness be adhered to with all litigation. The respondent has also submitted that, were leave obtained, that it would not take an unfair advantage of the applicant. Further, the Tribunal has statutory obligations to ensure each party understands the practices and procedures of the Tribunal, the nature of assertions made and their legal implications. These statutory obligations are an important protection for any party, but particularly for those who are self-represented.

20. [20]
    On balance, and for the reasons above, I conclude that it is in the interests of justice for both parties and in the interests of the efficient and fair resolution of this matter,^[6] that the parties each have leave to be legally represented.