Carmichael v Gold Coast City Council

[1999] QCA 36

COURT OF APPEAL	[1999] QCA 036
McMURDO P McPHERSON JA WILSON J
Appeal No 63 of 1999
ALEX CARMICHAEL	Applicant
and
GOLD COAST CITY COUNCIL	Respondent
BRISBANE
..DATE 23/02/99 230299 T16/MH14 M/T COA27/99

THE PRESIDENT: This is an application for leave to appeal under the Integrated Planning Act
1997 ("the Act"). Mr Burke, a civil engineer, claims he has a right to appear for the applicant, Mr
Carmichael, as agent because of 4.1.13 of the Act which provides, "A party to a proceeding may
appear personally or by lawyer or agent." Mr Burke appeared for

Mr Carmichael as agent in the Court below.

4.1.13 is contained in Part 1 of Chapter 4 of the Act which deals with the Planning and Environment
Court, its establishment, jurisdiction, powers, constitution, rules and directions and matters of
procedure. The term "a proceeding" in 4.1.13 of the Act must refer to a proceeding in the Planning
and Environment Court. "Court" is defined in the Act's dictionary as the Planning and Environment

Court.

Other provisions in Part 1 of Chapter 4 make it plain that Part 1 relates to the Planning and
Environment Court only. See, for example, 4.1.10, "Rules of court", 4.1.15, "What happens if

Judge dies or is incapacitated" and 4.1.16, "Stating case for Court of Appeal's opinion".

It is abundantly clear that 4.1.13 is limited to proceedings in the Planning and Environment Court.
Mr Burke has no right of appearance before the Court of Appeal in respect of this application.

Mr Burke next submits he should be given leave to appear for Mr Carmichael. The right to appear in this Court exists for applicants in person or through their admitted solicitor or barrister. Mr Burke fits neither category. Although not qualified as a lawyer, Mr Burke has commenced studying for a degree of Master of Applied Laws at the University of Queensland in subjects such as town planning and building and construction law. Mr Carmichael, the applicant, is his brother-in-law.

Mr Burke has not and will not receive payment for acting for Mr Carmichael. He does not hold himself out as being in the business of acting as agent in matters such as this. He has acted for a brother in the Planning and Environment Court on another occasion.

Unfortunately, the applicant, Mr Carmichael, is not present in Court today. To be successful in this
application,
Mr Carmichael must establish an error or mistake of law on the part of the Judge below and must
also persuade this Court that leave to appeal should be given.

There are good reasons for the long-established principle that ordinarily only a litigant in person or his or her admitted lawyers have a right of appearance. Lawyers understand the importance of acting on instructions and are aware of their duties, both to their client and the Court. Breaches of duty can be dealt with by the Court and/or the lawyers' professional body.

This Court has a heavy workload and relies on the skills of lawyers to hone and refine issues and assist the Court in its duty of timely and just disposal of cases. The system of justice is well served by these skills.

The applicant in this case must address this Court on matters of law. If he chooses or is unable to be represented by an admitted lawyer that is his business. In my view, the interests of justice would not be served by giving leave to Mr Burke to appear, especially in the absence of Mr Carmichael, the applicant.

An unfortunate consequence of this is that the application, which was ready to proceed today, may
have to be adjourned so that Mr Carmichael can decide if he wishes to proceed with the
application, whether he will appear in person or with legal representation.
230299 T16/MH14 M/T COA27/99

Yes, what do you propose, Mr Innes?

...

THE PRESIDENT: The final outcome of this matter today is clearly that the matter must be adjourned to a date to be fixed. The real question then is what should be done as to the costs of today's proceedings.

The applicant has been at fault in that it seems although he has not been here today that he wished to be represented by an agent who was not a qualified lawyer and he had no right to such representation and a subsequent application for leave for that to occur was refused.

That has meant that the application has had to be adjourned. On the other hand the respondent, the Gold Coast City Council, was well aware that the applicant was purporting to be represented by an agent, Mr Burke, and that Mr Burke would apparently be appearing or seeking to appear on this appeal.

The respondent either deliberately or through inadvertence did not raise this issue with the Registry or with the Court until the matter arose out of the appearance slip when the application was called on for hearing today.

There having been fault on both sides, in my view, the sensible order to make is that the costs thrown away by today's adjournment be costs in the cause.

McPHERSON JA: I agree that the costs of today should be costs in the cause.

WILSON J: I agree and would simply add that it seems to me the respondent should, in the circumstances, have taken the matter up either with Mr Carmichael or with Mr Burke.

THE PRESIDENT: The orders are the application is adjourned to a date to be fixed. The costs thrown away by the adjournment are costs in the cause.

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