Underwood v Department of Housing and Public Works

[2013] QCATA 132

CITATION: Underwood v Department of Housing and Public Works & Ors [2013] QCATA 132

PARTIES:

Ms Helen Underwood
(Appellant)

V

Department of Housing and Public Works (First Respondent)

Right to Information Commissioner
(Second Respondent)

APPLICATION NUMBER: APL184-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 2 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The Application for leave to be represented filed 29 November 2012 by the Department of Housing and Public Works is granted.1.   

The Application for the provision of legal representation/counsel at the public expense filed 3 April 2013 by Helen Underwood is refused.2.   

CATCHWORDS:

PRACTICE AND PROCEDURE – LEAVE TO BE REPRESENTED – where s 43(2)(b)(iii) of the Queensland Civil and Administrative Tribunal Act 2009 provides that a party may be represented if an enabling act states the person may be represented – where s 122(2) of the Right to Information Act 2009 provides a person may be represented before QCAT by a lawyer on an appeal on a question of law – whether s 122(2) overrides the discretion under s 43(2) – whether the first respondent should be granted leave to be represented

PRACTICE AND PROCEDURE – LEAVE TO BE REPRESENTED – where the appellant seeks leave to be represented “at the public expense” – where s 43(6) of the Queensland Civil and Administrative Tribunal Act 2009 provides the Tribunal may appoint a person to represent an unrepresented party – whether the Tribunal should appoint a person to represent the appellant

Queensland Civil and Administrative Tribunal Act 2009, s 43

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (‘QCAT Act’).

REASONS FOR DECISION

1. Ms Underwood has brought two appeals against decisions of the Information Commissioner.  The first is APL075-12 which involves the Commissioner’s decision not to deal with four applications she brought for external review of a departmental decision not to provide her with documents she had sought.  The Commissioner concluded that the application was vexatious, and dismissed it on that ground. 

1. In this appeal, APL184-12, Ms Underwood wishes to set aside a decision by the Assistant Information Commissioner made on 18 May 2012 varying a decision of the Department of Housing and Public Works in relation to her application for access to documents under the Right to Information Act 2009. The decision was, in short, to grant her access to some documents but refuse access to others.

1. I have, in a decision published simultaneously in APL075-12, dealt with a number of miscellaneous applications Ms Underwood has brought in that appeal.

1. Some of those applications have been duplicated in this appeal. The first is an application filed by the Department of Housing and Public Works in November 2012 seeking leave to be legally represented under s 43 of the QCAT Act. By direction, that application was due to be determined on the papers after an exchange of written submissions and Ms Underwood filed submissions in reply on 31 January 2013.

1. Ms Underwood has also, as in the other appeal, filed an application in this matter on 3 April 2013 that she be legally represented, at the public expense.  At a directions hearing on 22 April 2013 I ordered that the parties exchange submissions about the latter application, on a timetable and that has occurred.

Application by first and second respondents to be legally represented

1. The third respondent has signified that it does not wish to seek leave to be legally represented.  The Department of Housing and Public Works rely upon identical submissions advanced on their behalves in APL075-12.

1. Ms Underwood’s own application for legal representation argues that this matter involves complex questions of law.  For the reasons given in my simultaneous decision in APL075-12 I am persuaded that this, too, is a matter in which the discretion to allow the first and second respondents to be legally represented should be exercised in their favour.

Application by Ms Underwood for leave to be legally represented at the public expense

1. Again, the merits and the arguments for and against this application by Ms Underwood were fully explored in my simultaneous decision in the other appeal.  As in that case, Ms Underwood has failed to persuade me that she should be represented, in this appeal, by a lawyer of her choosing at the expense of the Tribunal, or the State.

1. For these reasons both applications are refused.