Bradshaw v Queensland Transport

[2010] QCAT 403

CITATION: Bradshaw v Queensland Transport [2010] QCAT 403

PARTIES:	Dr Christopher Patrick Bradshaw
v
Queensland Transport

APPLICATION NUMBER:   GAR142-10

MATTER TYPE: General administrative matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 19 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The respondent has leave to be legally represented in these proceedings.

CATCHWORDS :  Leave for legal representation – where a state agency – whether complex – whether interests of justice served – model litigant – where undertaking as to costs – s3(b), 43 and 48 QCAT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Queensland Transport has applied for leave to be legally represented in these proceedings. Queensland Transport is aware of the tribunal’s ability, under Rule 53, to allow a State agency to appear by an employee who is also an Australian legal practitioner. It argues that, in this case, something more is required.

2. The application is opposed by Dr Bradshaw.

3. The question of legal representation in a proceeding before QCAT is governed by s 43 of the Queensland Civil and Administrative Tribunal Act 2009. The main purpose of that section is to have the parties represent themselves unless the interests of justice require otherwise (s43 (1)). It specifies a number of circumstances the tribunal may consider as supporting leave being given. Relevantly, for this application, they are:

   (a)  that the party is a State agency;

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

A party is a State agency

1. Dr Bradshaw questions the impartiality of the relevant lawyer from Crown Law who currently has the conduct of Queensland Transport’s case, opining that the lawyer is more likely to advocate on behalf of Queensland Transport as he has a duty to “win” for his client.

2. That submission demonstrates that Doctor Bradshaw does not understand the principles of the model litigant which Crown Law recognises as an obligation to give the tribunal all necessary information, both favourable and unfavourable, to assist in the determination of the dispute. The tribunal would be more concerned about a breach of the model litigant principles if the proceeding was left in the hands of Queensland Transport as a desire to defend its decision may tempt it to be more of an advocate than it should.  By removing the conduct of the proceedings from the decision maker, the tribunal is satisfied that the proceedings are truly conducted within the framework of a model litigant.

Complex questions of law and fact

1. Doctor Bradshaw states that the law in relation to this proceeding is relatively straightforward and not difficult to follow. Queensland Transport says that the resolution of this proceeding will involve issues of the interaction between Commonwealth and State jurisdictions, whether QCAT is the correct forum and the doctrine of res qestae (sic).

2. More important, however, is Crown assertion that the determination of this proceeding has national implications regarding the importation of similar vehicles. If it has such wide ranging ramifications, it is important that the tribunal is fully informed when determining the dispute.

Interests of justice

1. Dr Bradshaw is concerned by Queensland Transport’s submission on costs, stating that any order for costs would subvert the purposes of the tribunal set out in section 3(b) of the Act. If that was the effect of the submission from Queensland Transport, Dr Bradshaw’s concerns would be valid. Queensland Transport’s submission is, however, to contrary effect; it is positively undertaking not to apply for costs unless it is demonstrated that Dr Bradshaw’s conduct of the case comes within section 48 of the Act. Given that the power to award costs involves the exercise of a much wider discretion by the tribunal, this is a significant concession by Queensland Transport and gives the tribunal considerable comfort.

2. The tribunal notes Dr Bradshaw’s arguments on the merits of the case. Although he suggests that the Queensland Transport position is without merit, he has not demonstrated that it is so devoid of merit that it is not worth arguing before the tribunal.

10. Dr Bradshaw has file material to demonstrate that he is an intelligent and articulate man with a firm grasp of the legal principles involved. There is no suggestion that he will be at any disadvantage if Queensland Transport is represented.

11. Dr Bradshaw complains of delay. The proceeding is listed for directions on 30 August 2010. No doubt, on that day, the member will take those concerns into account.

Conclusion

12. This proceeding is sufficiently complex and important to warrant Queensland Transport having legal representation. It has given appropriate undertakings in relation to costs and there is no evidence that Dr Bradshaw will be at any disadvantage. Leave for representation is accordingly granted.