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[2005] VCAT 197
Victorian Civil and Administrative Tribunal
2005-02-15
Stuart Morris J
Original judgment source is linked above.
The tribunal declines to appoint a person to represent the applicant.
1 This application concerns the discretion given to the tribunal by section 62(6) of the Victorian Civil and Administrative Tribunal Act 1998 to appoint a person to represent an unrepresented party in a proceeding.
2 The discretion is a broad one. However I find that the circumstances in the present case are not such as to exercise the discretion by appointing a person to represent the applicant.
3 There are four proceedings before the tribunal, all of which arise by way of referral pursuant to section 29(5) of the Information Privacy Act 2000.
4 The first referral (G1635/2003) concerns a complaint that a parcel addressed to the applicant by Sweet and Maxwell was opened by the university.
5 The second referral (G1636/2003) involves a number of general complaints against the university involving privacy matters.
6 The third referral (G1509/2003) concerns an email received by the applicant from a campus journalist to the effect that the public relations officer of the university had disclosed personal information.
7 The fourth referral (G328/2004) is in relation to the alleged failure of Professor Gilbert and or his delegate, and Professor Evans and or her delegate, to take reasonable steps to ensure that personal information contained in two letters was accurate.
8 On 29 April 2004 the applicant applied to the tribunal for a person to be appointed to represent her in the proceedings. The application was refused by the tribunal, comprised by Senior Member Megay.
9 On 19 November 2004 this decision of the tribunal was set aside by the Supreme Court of Victoria and the matter was referred back to the tribunal for hearing and determination according to law.
10 By letter received 26 May 2004 the applicant formally requested the tribunal to appoint a professional advocate to represent her. In her written application she stated:
I understand that the University of Melbourne has been represented by Minter Ellison, the largest law firm in this country. Notwithstanding that I am a layperson, I have been unrepresented in this proceeding. As is clear from the fact that my fees to the Tribunal were waived, I am impecunious and unable to afford legal representative for myself. Legal Aid informed me that it could only assist a criminal case. Since I have been resident in Queensland, I cannot seek assistance from community legal services in Victoria. I, in Queensland, cannot even obtain literature in relation to Victorian legislation. Unless the Tribunal appoints a legal representative for me, I cannot expect to have fair hearings in this proceeding.
11 The hearing was conducted in Melbourne on 8 February 2005. The applicant participated in the hearing by telephone link from Brisbane. The University of Melbourne was represented by a solicitor, but as it neither supported nor opposed the application, no submissions were made on its behalf.
12 Section 62 of the VCAT Act sets out various provisions in relation to the representation of parties before the tribunal. Generally the section provides that in any proceeding a party may appear personally or may be represented by a professional advocate (which includes a legal practitioner); although there are some restrictions upon a person being represented by a professional advocate.
13 The policy underpinning section 62 of the VCAT Act was articulated by the Attorney-General in her Second Reading Speech in 1998.
Concerns are often raised that the participation of legal representatives in cases before tribunals results in the proceedings becoming unnecessarily legalistic, adversarial and can prolong and complicate matters - adding to the cost of the decision-making process.
The bill provides for parties to be represented by a professional advocate in appropriate cases. The bill will allow professional advocates, including legal practitioners and also people with specialist expertise such as town planners, to appear before the tribunal where this is deemed appropriate. In limited circumstances, the bill allows representation as of right. In this way the bill recognises that in some cases the involvement of professional advocates can assist in the settlement of matters.
The tribunal will be charged with ensuring that appropriate procedures are in place to ensure that where professional advocates are used, including legal practitioners, they will assist the tribunal to identify and focus on relevant issues, eliminating unnecessary avenues of inquiry.
Indeed in some complex cases, such as those found in planning and credit jurisdictions, the need for professional advocates may be beneficial to both the parties involved in the matter and the tribunal. However, in other jurisdictions, such as small claims, residential tenancies and domestic building disputes, the role for professional advocates may be more limited and permitted only in appropriate cases thereby minimising costs. It will also ensure that proceedings are less legalistic. The bill establishes an appropriate balance between these competing interests, enabling the tribunal to determine, on a case-by-case basis, the appropriateness of representation.
For applicants who are unrepresented, the tribunal, and registry staff, will provide assistance in matters.
14 The applicant specifically relies upon section 62(6) of the VCAT Act. This provides:
If a party is unrepresented in a proceeding, the Tribunal may appoint a person (whether or not a professional advocate) to represent that party.
15 The power given to the tribunal by section 62(6) is premised upon a party being unrepresented in a proceeding. However, subject to this requirement, the language used vests in the tribunal a broad discretionary power to choose to appoint a person to act for such a party. The Act does not insist upon any particular considerations being taken into account in exercising that discretion; rather the power is simply designed to assist the tribunal in promoting the fair conduct of a proceeding.
16 I do not believe it is desirable to go beyond these general statements and articulate particular factors which should or may be considered in the exercise of the discretion. This is not what the Act requires.
17 The appointment of a person to represent an unrepresented party is to be considered, not only having regard to the specific facts of the proceeding in question, but also in the wider context of the conduct of tribunal business generally.
18 Although the tribunal might be regarded as a "court" for some purposes and has similarities to courts, its constitution, powers and procedures mean that it operates in a less formal and more inquisitorial manner than courts. Importantly the tribunal is designed to provide cost effective, accessible and timely resolution of disputes. To achieve this (unlike the courts) limits are placed upon legal representation; and self representation is encouraged.
19 In the day to day work of the tribunal legal representation is atypical. In the tribunal's biggest list, Residential Tenancies, legal representation is extremely rare. This list hears over 65,000 cases each year. Typically landlords are represented by an estate agent and tenants appear in person. In the Planning and Environment List a survey has shown that fewer than 15% of all parties are represented by a lawyer. The overwhelming proportion of objectors are unrepresented; whereas the main form of representation for councils and permit applicants is by a town planner. In the Civil Claims List legal representation is not generally permitted in disputes involving a sum of less than $10,000, which represents over 90% of all cases in the list. And in the Anti-Discrimination List it is very common for parties, particularly applicants, to be unrepresented.
20 Experience tells us that when all parties to a proceeding are represented it does not automatically follow that all the parties will have the benefit of the same level of skill or experience. Frankly it is only too common that professional advocates for one side are inferior to the professional advocates on the other side. Similarly where all parties are not represented some parties will have an advantage over other parties by reason of their background, training, intelligence or skills. Where some parties are represented by professional advocates and other parties are not so represented, it is also the case that a disparity often exists in the ability of the party to promote its case. However my experience in a tribunal environment makes me resist the proposition that a party will always be better off with legal representation. For example, in a town planning context a skilled town planner advocate will usually be better placed to make a case than a non-specialist lawyer; and I know, as a former advocate, that an intelligent layperson, with detailed knowledge of the case at hand, was often very effective.
21 Bearing in mind the nature of the tribunal and representation before the tribunal, the tribunal acts in a way so as to promote fair procedures. First, the method of bringing cases before the tribunal is relatively simple; complex pleadings are unnecessary. Second, the tribunal engages a substantial registry staff to assist parties and to perform work which would ordinarily be done by solicitors in courts of law. Third, hearings are conducted in an ordered manner, but with as little formality and technicality as is practicable. Fourth, the tribunal is empowered to inform itself on any matter as it sees fit and this power is used to promote the fair conduct of a case as well as to achieve a just outcome according to law. For example, tribunal members often ask questions or raise issues in order to overcome an inability of a party to articulate its true case.
22 Bearing in mind the context within which the tribunal operates, it is not surprising that the power in section 62(6) of the Act to appoint a person to act for an unrepresented party is rarely exercised.
23 I have read the tribunal files in these proceedings, which include a number of documents prepared by the applicant. On this basis I find that the applicant's written English is excellent. Having heard submissions from the applicant, I find that her oral English is sufficient to enable her to communicate her thoughts, even though she is clearly not as articulate as a person of her education having English as their first language. If the applicant required a translator the tribunal would provide this. But that is not what is required nor requested.
24 The applicant has a degree from a university in Japan. This degree was in arts and, possibly, involved some study of Japanese law. However the applicant has not studied Australian law. But, in the context of all persons appearing before the tribunal, the applicant must be regarded as comparatively well educated.
25 It is difficult to assess the intelligence of a person by simply listening to them and examining their written work. But, to the extent that it is possible to make findings in this regard, I find that the applicant is an intelligent woman.
26 The applicant informed me that she has access to email and to the internet, although she stated that the latter was limited by reason of her financial circumstances. However I find that the cost of accessing the internet is not sufficient to prevent the applicant from ascertaining relevant information about her proceedings. Further, I find that she has the ability to do this. It is noteworthy that in recent years there has been a democratisation of information, including information about legal matters. The VCAT website contains substantial material about the conduct of tribunal proceedings. The AustLII website contains a very substantial database of legal decisions, which are easily searched. Legislation is readily available on-line.
27 The applicant stressed that the respondent was represented by counsel and its attorney was Minster Ellison, a very substantial law firm. Beyond the fact that the respondent is legally represented, I do not place any special significance on the name of the firm.
28 The proceedings involve relatively straightforward issues. The proceedings are not in the nature of test cases, with many more similar cases, having substantially the same facts, waiting in the wings. There is no other factor that makes the proceedings particularly unusual in the context of proceedings of this type.
29 Having regard to the context and the findings in relation to specific matters, I decline to exercise the discretion given to the tribunal by section 62(6) to appoint a person to represent the applicant.
30 In exercising the discretion pursuant to section 62(6) it is not essential for the tribunal to consider whether there might be some imbalance in power between the parties. Indeed in the present case, for the reasons I have given, I do not regard it as an important consideration in the exercise of my discretion. However, to the extent that it is a consideration, I do not regard the imbalance as substantial having regard to the applicant's personal skills, intelligence and education, the applicant's first hand knowledge of the facts upon which the proceedings turn, the nature of the proceedings, the tribunal's practices and procedures and the context of the matter.
# Ogawa
University of Melbourne