The use of legal representation is, for the most part, contrary to the purpose of Queensland Civil and Administrative Tribunal (QCAT) pursuant to its enabling legislation. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) sets out that parties are expected to represent themselves unless the interests of justice require otherwise. QCAT retains the discretion to grant leave for legal representation under s 43(2)(iv) of the Act. In exercising this discretion, QCAT may consider:
- the complex legal or factual nature of the proceedings
- the representation status of another party
- agreement between the parties regarding representation.
Abdelkadiri v IKEA Limited and Others (The Proceedings) were initiated when a complaint was lodged with the Anti-Discrimination Commission of Queensland in May 2008. The complaint was subsequently referred to the Anti- Discrimination Tribunal of Queensland and then to QCAT in December 2009. A compulsory conference was held before QCAT in May 2010 which proved unsuccessful.
The complaint lodged by Mr Abdelkadiri comprised several allegations of direct and indirect discrimination relating to occupational health and safety obligations, shortened break periods, racial discrimination, misuse of his passport and unfair treatment in the workplace. The events described in the complaint took place over an extended period of time between November 2006 and May 2008. In another complication, a Deed of Release and Discharge was entered into between Mr Abdelkadiri, WorkCover Queensland and IKEA Limited in February 2010 that in the respondent’s view, addressed some of the allegations.
The submissions filed and served on behalf of the respondents (amongst other things) argued that the Proceedings involved complex questions of both fact and law. The submissions noted that the wide range of unconnected allegations of discrimination, along with the varying direct and indirect nature of the discrimination alleged, would present overwhelming difficulties for a person without legal expertise seeking to defend themselves. Further, it was a real possibility that the respondent’s witnesses may no longer be employed or contactable, and the representative of IKEA (who would be required to conduct the Proceedings in the event IKEA was not legally represented) was not in its employ at the time the alleged discrimination was said to have taken place.
Senior Member Endicott agreed that the combination of these factual and legal complexities were such that the interests of justice required the respondents to be allowed legal representation. This decision provides guidance to parties before QCAT that despite the overarching legislative intent to exclude legal representation at QCAT, parties should not be deterred from applying for leave to be legally represented where they face circumstances of similar legal and factual complexity.