Marshall v Dental Decor Pty Ltd t/as Westmead Gentle Dental

Federal Court of Australia|2010-06-29

CITATION: Marshall v Dental Decor Pty Ltd t/as Westmead Gentle Dental [2010] NSWADT 173 This decision has been amended. Please see the end of the decision for a list of the amendments.

APPLICANT Penny Marshall PARTIES: RESPONDENT Dental Decor Pty Ltd t/as Westmead Gentle Dental

CATCHWORDS: Discrimination on the grounds of sex and age, application by Applicant's husband to appear as agent

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules

Curtin v Vice-Chancellor, University of NSW [2005] NSWADT 186 CASES CITED: LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16 Dept Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17

APPLICANT In person REPRESENTATION: RESPONDENT K Nomchong, barrister

ORDERS: The application by George Marshall for leave to represent the Applicant is declined.

1 On 18 June 2009, the applicant, Mrs Marshall, complained to the Anti-Discrimination Board that her employer, the Respondent, had discriminated against her on the grounds of sex and age. The complaint has been referred to the Tribunal pursuant to section 93C of the Anti-Discrimination Act 1977. The proceedings have been listed for hearing before the Tribunal on 22 and 23 July 2010.

2 The Applicant's husband, Mr Marshall, has applied to represent Mrs Marshall at the hearing, pursuant to section 71(3) of the Administrative Decisions Tribunal Act 1997 ('the Act'). The Application was completed and signed by Mrs Marshall. Mr Marshall failed to sign the application. To that extent, it is incomplete. Mrs Marshall has assured the Tribunal that Mr Marshall's failure to sign was an oversight on his part. The Tribunal exercised its discretion under Rule 11(1) of its Rules to accept the application in its incomplete state, on the undertaking of Mrs Marshall to ensure that Mr Marshall completed the application by signing it, and that the completed application was lodged with the Tribunal within the time limited by the undertaking.

3 Mr Marshall is not legally trained or qualified. According to Mrs Marshall, he has an intimate knowledge of the subject matter of the proceedings, and it would be a comfort to her if she was represented by him. She consents to his application. She feels it is appropriate that she be represented, as the Respondent has legal advisors, and will be represented by counsel. She says she is unable to afford legal representation, but admits that she is not entitled to legal aid under the Legal Aid Commission Act 1979, because she fails to satisfy the means test imposed by section 35 of that Act.

4 The Respondent objects to the grant of leave to Mr Marshall. The grounds may be summarised as follows. 1) Mrs Marshall is capable of representing herself, because the issues of fact and law which fall for determination in these proceedings are not complex, and her preparation for trial to date demonstrates her own competence in representing herself.

There is no evidence that Mr Marshall would be any more skilled than Mrs Marshall in conducting the hearing.

Mr Marshall is an inappropriate person to represent the Applicant, because he had an involvement in the events giving rise to the complaint.

He is also an inappropriate person because he is involved in a dispute with the Respondent's director, Dr Chu, and her husband, both of whom will be essential witnesses in the Respondent's case. If leave were granted for him to appear for Mrs Marshall, he would be in a position to cross-examine both of them. Facts 5 In the course of the application for leave, the Tribunal was referred to numerous witness statements filed in anticipation of the hearing, and to correspondence between the parties. Having regard to those documents, and for the purposes only of this application, the Tribunal is satisfied of the following facts.

6 The Applicant was employed as a receptionist and dental nurse in a dental practice run the Respondent's sole director, by Dr Nancy Chu.

7 The Applicant alleges that the practice was managed by Dr Chu's partner, Mr Gregory Kinda. That is denied by the Respondent. He was a doctoral candidate studying at the Sydney Conservatorium of Music, which is part of the University of Sydney.

8 On Friday 27 February 2009, the Applicant resigned due to comments about her which she considered to be inappropriate. She alleges the comments were made by Mr Kinda, and relayed to her by Dr Chu. Mr Kinda denies having made the comments.

9 On Saturday 28 February 2009, shortly after her resignation, Mr Marshall rang the dental practice, and left a message. The contents of that message are in dispute.

10 Dr Chu alleges that the message was in the following terms, first heard by her when she attended the practice on Monday, 2 March 2009: 'Hi Nancy. George Marshall here. I just wondered if fat boy's there, 'cos who the fuck does he think he is, insulting my wife? Will you tell that big lumpy lard, that big fat piece of shit, he's got his trousers up to his neck and I'm coming to see him, OK? He will not insult my wife. You tell that big fat piece of shit he's a fucking big slimy Polish dog.'

11 The Respondent says that 'fat boy' was a reference to Mr Kinda.

12 Later, Mr Kinda made a recording of the phone message. Mrs Marshall told the Tribunal that it had been altered, and so as not to reflect accurately the terms of the phone message.

13 At about 9.30am on 2 March 2009, Dr Chu alleges that Mr Marshall rang her at the practice, and said: 'Hi Nancy. It's George Marshall here. I'm coming over and I'm gonna break Gregory's fingers and make sure that he is kicked out of University. I am also going to make sure that you lose your licence.'

14 Mrs Marshall denies that her husband made any threat of violence.

15 Dr Chu reported the matter to police, who attended the practice, and commenced an investigation. To date, no charges have been laid against Mr Marshall.

16 Presumably by way of tendency evidence, the Respondent adduces a statement of Ms Lisa Jones, Dental Assistant. She alleged that on Friday 27 February, Mrs Marshall told her, 'that George Marshall (her husband) was going to come into the Practice and "have a go" at Mr Kinda.'

17 By letter dated 7 May 2010, the Applicant wrote to the Respondent's solicitor as follows: 'NSW Police have informed Mr Marshall if it is substantiated that if [sic] your client, Nancy Chu and Mr Gregory Kinda have made a false police report and allegations against Mr Marshall, charges of public mischief may be brought against her and Gregory Kinda. Mr Marshall will also be lodging a complaint with NSW Police for false allegations made against him by your client.

Your client has falsely accused my husband of threats of violence. She then claimed she had a witness to this act. She then made a false police report to NSW Police regarding my husband.

Your client also falsely claimed in her statement made to GIO General Limited that he had recorded threats of violence.

Mr Marshall does not dispute he rang the surgery and left a message for Nancy Chu on Saturday 28th February 2009. This message contained no threats of violence. Mr Marshall only gave his personal opinion of Mr Kinda. Mr Marshall has not committed any crime in describing Mr Kinda.'

18 In that letter, Mrs Marshall informed the Respondent's solicitor that she had received 'expert legal advice', and would lodge a complaint about him with the Office of the Legal Services Commissioner, concerning his use of certain record pertaining to a former owner of the dental practice.

19 Mrs Marshall told the Tribunal that she and her husband intended to proceed against Dr Chu for making a false report about Mr Marshall to Police.

Legislation 20 Section 71(1)(b1) of the Act provides that a party to proceedings before the Tribunal may:

'with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner'. 21 Subsections 71(2), (3) and (3A) provide as follows. '(2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party's agent in the proceedings or in part of the proceedings.

(3) The Tribunal may: (a) grant or refuse leave on an application made under subsection (2), and

(b) revoke any leave that has been granted. (3A) The rules of the Tribunal may make provision for or with respect to the following matters: (a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party,

(b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.'

22 Rule 20A of the Tribunal's rules makes provision relevantly as follows: '(1) This rule provides for the circumstances in which it is appropriate under section 71 of the Act for the Tribunal to grant, refuse or revoke leave for an agent to represent a party in proceedings, or part of proceedings, in the Tribunal.

(2) It is appropriate for the Tribunal to grant leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person has: (a) a sufficient degree of competence to provide effective representation for the party, and

(b) the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings. (3) It is appropriate for the Tribunal to refuse leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person does not have the qualities referred to in subrule (2).

(5) Nothing in this rule limits the matters that the Tribunal may take into account in deciding whether it is, or is not, appropriate for the Tribunal to grant, refuse or revoke leave for a person to represent a party as the party's agent in proceedings.'

Issues for determination 23 In determining whether to grant the leave sought, the following issues arise for determination. 1) Whether Mr Marshall has sufficient competence to represent Mrs Marshall effectively.

Whether he has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings.

Whether there are any other factors which it is proper to take into account, and if so, how they affect the discretion to grant leave.

Consideration 24 Section 71 and Rule 20A have been considered by the Tribunal and its Appeal Panel in Curtin v Vice-Chancellor, University of NSW [2005] NSWADT 186, LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16, and Dept Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17.

25 In Curtin, the Tribunal considered the provisions of section 71 before the amendments which commenced on 1 January 2009, which caused the section to appear as it does now. As it stood in 2005, an applicant had a right to representation by an agent. The Tribunal had power under section 71(2) to 'order that parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it'.

26 Mr Curtin was a former employee of the University. He had applied to it for access to documents under the Freedom of Information Act 1989. He sought review of the University's decision to restrict his access in various ways. He conducted the proceedings before the Tribunal competently, and in person. In submissions, he asked another former staff member and friend, Mr McGuirk, to represent him. He said Mr McGuirk had a better knowledge of the law. Mr McGuirk was himself a party to other proceedings against the University. The Tribunal exercised its discretion under section 71(2) to order that Mr Curtin not be represented by Mr McGuirk. President O'Connor said [at 21]: '… it seems to me that it is quite undesirable to allow a person to appear as agent before the Tribunal in circumstances where it is well known that the person is involved in litigation and dispute with the opposite party to the proceedings. When the Tribunal is looking at the question of an agent representing a person in circumstances where that agent is not a member of the legal profession, the Tribunal is still concerned to see that similar characteristics to those provided by a member of the legal profession are present - most importantly, a detached and dispassionate approach to the matter. It may be that Mr McGuirk, if allowed to appear, would in fact present his submissions in a detached or dispassionate way, but it seems to me there is a risk to the proceedings that is greater than normal that we might get into other areas of contest. It seems not to be desirable to risk that possibility.'

27 In LN, the Appeal Panel considered the provisions of section 71 and Rule 20A in their current form. President O'Connor observed [at 17-18]: '17 … A number of the points made in [ Curtin's case ] apply, with more force, to an application for permission to have a friend appear as a representative or advocate, and therefore run the case.

18 In my view it is not likely to be in the interests of the orderly despatch of business in the Tribunal that persons who have been presently or recently involved in bringing their own cases against a respondent be permitted to represent other persons with cases against the same respondent. There is a real risk that they will bring to their role as agent the grievances which have led them to take personal action against the respondent. There is a real risk that they will use the case in which they appear as agent as a further platform for airing their grievances with the agency, rather than their 'client's' grievances. The agent may be 'using the litigant as a puppet': see Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235 at [56].'

28 In AY the Appeal Panel, constituted by the President sitting alone, considered an appeal from a decision by the Tribunal at first instance to grant leave to a non-legal practitioner to represent a fellow TAFE teacher in an action for breach of the Privacy and Personal Information Protection Act 1998. Objection had been taken to the grant of leave by the Respondent, on the basis that the agent had previously represented the Applicant in other proceedings, and other persons in other proceedings against government agencies, and in his dealings with the Crown Solicitor's Office had repeatedly made remarks which were 'vituperative, overbearing, derogatory, casting smears on the professional competence of the various lawyers at the CSO and threatening' [at 22]. In granting leave at first instance, the Tribunal had observed [at 3]: '.... there is evidence showing that the proposed agent has in the past acted for the applicant in relation to other dealings that he has had with government agencies and that this could well suffice to enable the Tribunal to grant leave, should it wish to after consideration of all relevant matters.'

29 The Appeal Panel set aside the decision to grant leave. It found [at 40ff]: '40 In my view the matters to which the agencies referred (see [12] and [13] above) are all relevant to the discretion whether to grant leave to represent to a lay agent. The ultimate consideration is whether the grant of leave will promote the interests of justice, broadly understood: see generally, Western Australia v Ward at 501; Wongatha People v State of Western Australia [2002] FCA 871 per Lindgren J at [20]; Teese v State Bank of New South Wales [2002] NSWCA 219; Damjanovic v Malley at [33] ff per Stein JA.

41 Those interests include the interest of a party in having their case put effectively, the interest of the opposite party in not having a method and style of representation employed which exacerbates cost, expense and trauma to no positive end and the interest of the community as a whole in having the justice system deal with disputes in a cost efficient, timely and conclusive way.

42 The grant of leave to represent gives the agent a status in the proceedings equivalent to that of a lawyer on the record. That agent holds a conferral of authority that extends beyond the hearing room, and makes the agent the person with whom an opposite party or the opposite party's representative must deal, in the range of matters that surround the preparation for and conduct of a hearing. The agent is the person with whom any negotiations are to be conducted. Those communications and negotiations will occur away from the gaze or oversight of the tribunal or court. In this case the evidence in support of the objection went to the proposed agent's conduct in both spheres. As I see it, when granting leave to a non-lawyer agent, the Tribunal should be cognisant of the scope of authority that the grant of leave furnishes, and the importance of having some assurance that the agent will adhere to appropriate standards in direct dealings with the other side.

43 Rule 20A does not affect the breadth of the discretion, but it does highlight certain considerations, those set out in subrule (2).

45 The kind of risk to which I refer [in LN's case ] is present in this case. As the appellants' submissions below noted Mr Johnston is himself a party on the record in numerous disputes with DET, as well as being an agent in several others where the other party is the Commissioner of Police or DET. .…

46 In my view, there is ample material in this case to support the conclusion that the interests of justice are not likely to be advanced by the involvement of Mr Johnston in this case as an agent for Mr AY. While he contests the detail of the CSO lawyers' statements as to his conduct, those statements are furnished by legal practitioners subject to professional duties that they not mislead. In my view, those statements should, as the Tribunal below did, be treated as 'cogent' (see its reasons at [6]) and be accepted for present purposes. Those statements focussed in particular on Mr Johnston's inter-parties conduct away from the gaze of the Tribunal. In my view, this evidence was clearly relevant to the exercise of the leave discretion, and was damning.' Consideration 30 The first issue for determination is whether Mr Marshall has the degree of competence necessary to provide effective representation. The onus of proving that lies with the applicant. Rule 20A(2)(a) does not speak of education generally, but of competence in the art of representation. Mr Marshall is not legally qualified. There is no evidence that he is experienced in representing litigants before the Tribunal. Mrs Marshall told the Tribunal that she had in the past taken proceedings in the Industrial Commission. It may be that she was represented there by Mr Marshall. Even if she was, there is no evidence before the Tribunal as to his performance there. In those circumstances, the Tribunal cannot be satisfied that he has the competence to provide effective representation before it.

31 The second issue is whether he has the 'ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings': Rule 20A(2)(b). The Tribunal has not heard from Mr Marshall. It is not in a position to assess his honesty.

32 Even if the Tribunal were to make an assumption in his favour on that issue, his ability to 'deal fairly' with Dr Chu and Mr Kinda - who as witnesses, are 'persons involved in the proceedings' - depends on the Tribunal's assessment of his relationship with them. That relationship is very poor indeed. That is so, whether or not he made phone calls in the terms alleged, as to which the Tribunal is not in a position to make any finding. He is accused by Dr Chu and by Mr Kinda - rightly or wrongly - of making threats of violence. He has been reported to police by Dr Chu. He intends to proceed against both of them. It is difficult to see how his relationship with them could be any poorer. He is currently in a dispute with them. That dispute is of a most serious nature.

33 The President's observations in Curtin were not confined to situations in which a potential agent was himself litigating against the Respondent. They extend to cases where the agent was in a dispute with the Respondent. They apply equally where, as here, the agent is in dispute with other persons involved in the proceedings. In Ay, the agent's vituperative relations with the Respondent's solicitors were sufficient to disincline the Appeal Panel to uphold the grant of leave. A fortiori, the existence of similarly poor relations between a potential agent and the Respondent's witnesses would disincline the Tribunal to grant leave.

34 As the Appeal Panel observed in Ay, if leave is granted, the agent becomes the sole representative of the Applicant, not only before the Tribunal, but also for the purposes of interactions between the parties away from the Tribunal's gaze. As Mr Marshall is not a legal practitioner, he is not bound by the ethical codes applicable to legal practitioners, or subject to the disciplinary regimes applicable to them. As an advocate, he will also have the right to cross-examine both the persons with whom he has a personal dispute. There is a real risk that he will bring to his role as agent the grievances which he has against them, and that he may 'use the case in which [he appears] as agent as a further platform for airing [those] grievances .., rather than [his] 'client's' grievances': LN [at 18].

35 The Applicant says that she would feel comforted if Mr Marshall were to represent her, as the Respondent is legally represented, and she cannot afford legal representation. There is no reason why Mr Marshall cannot provide emotional support by his presence, otherwise than as an agent. As Mrs Marshall cannot satisfy the means test for legal aid, and she has admitted in correspondence to obtaining 'expert legal advice', the Tribunal cannot be satisfied that she is unable to afford legal representation.

36 Even if the tribunal were satisfied that Mrs Marshall was unable to afford legal representation, it would be inappropriate to grant the leave sought, for the reasons given.

37 It is unnecessary to consider the further grounds of objection raised by the Respondent.

Order 38 The application by Mr Marshall for leave to represent the Applicant is declined.

Typographical error, Paragraph 30. Kinda to be Marshall

13/07/2010 - Typographical error, reference to Mr Kinda replaced by Mr Marshall in paragraph 30 - Paragraph(s) 30

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