Catania v Jolley - [2020] QCATA 109

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Catania v Jolley [2020] QCATA 109

PARTIES: CHRISTOPHER CATANIA
DAVID CATANIA

(applicant/appellant)

v

MARK IVAN JOLLEY

(respondent)

APPLICATION NO/S:

APL333-19

ORIGINATING APPLICATION NO/S:

BDL019-19

MATTER TYPE:

Appeals

DELIVERED ON:

23 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Traves

ORDERS:

1. Leave to appeal is refused.

CATCHWORDS:
APPEAL – EXERCISE OF DISCRETION – where Tribunal refused leave to be legally represented – whether applicant has impaired capacity – whether matter complex - whether error in the exercise of discretion.

Guardianship and Administration Act 2000 (Qld), schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, 43, s 45, s 142

Carr v Finance Corp of Aust Ltd (1) (1981) 147 CLR 246
Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hall v Nominal Defendant (1966) 117 CLR 423
Niemann v Electronic Industries Ltd [1978] VR 431
Port of Melbourne Authority v Anshun Pty Ltd (1) (1980) 147 CLR 35
R v Lintrose Nominees Pty Ltd (2001) 4 VR 619
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

David and Christopher Catania (the applicants) commenced a building dispute against Mark Jolley in respect of building work arranged by David Catania to be performed at a property owned by Christopher Catania. They applied for leave to be legally represented in the proceeding. A Senior Member of the Tribunal refused the application for leave to be represented.
The applicants have now filed an application seeking leave to appeal the decision to refuse leave for legal representation. Leave to appeal is required where the decision sought to be appealed is not a final decision of the Tribunal.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii) (‘QCAT Act’).
Whether a judgment or order is final or interlocutory depends on the nature of the order made. The test is whether, as made, it finally disposes of the rights of the parties.[2] That requires the court to look at the consequences of the order itself, and ask whether it finally determines the rights of the parties in a principal cause pending between them. It is not enough to ask simply whether it finally determines the actual application out of which it arises because, subject to the possibility of appeal, virtually every order meets that description. Regard must be had to the legal, rather than the practical, effect of the decision.[3]
[2]Hall v Nominal Defendant (1966) 117 CLR 423; and Port of Melbourne Authority v Anshun Pty Ltd (1) (1980) 147 CLR 35.
[3]Carr v Finance Corp of Aust Ltd (1) (1981) 147 CLR 246.
The order refusing the applicants leave to be represented is interlocutory rather than final. Leave to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 109
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the case of Catania v Jolley, the parties were David Catania and Ms Jolley. The dispute involved an application for leave to be legally represented at the Queensland Civil and Administrative Tribunal (QCAT). The appeal was heard in the Queensland Court of Appeal. The primary issue was whether the QCAT Tribunal had erred in its exercise of discretion when it refused leave for legal representation. Specifically, the appellants argued that the Tribunal erred in its finding that David Catania did not have impaired capacity and that the proceeding did not raise complex issues. Additionally, they contended that requiring Christopher Catania, who resides in Victoria, to represent himself was inconsistent with section 3(b) of the QCAT Act.

The QCAT Tribunal considered the submissions made by the applicants regarding David Catania’s alleged impaired capacity and the complexity of the proceeding. The Tribunal summarised section 43 of the QCAT Act, which outlines the circumstances under which a party may be represented. The Tribunal noted that the applicants had submitted that David Catania had impaired capacity, but found that this was not supported by the detailed statements provided by David Catania and Ms Johanson about the building works in dispute. Consequently, the Tribunal was not persuaded that David Catania had impaired capacity. Furthermore, the Tribunal considered Christopher Catania’s assertions regarding the difficulties of representing himself due to distance and economic considerations but found these assertions lacked evidentiary support and were not compelling.

The Court of Appeal dismissed the appeal, finding that the Tribunal had not erred in its decision. The Court upheld the Tribunal’s findings regarding the lack of evidence supporting the claim of impaired capacity and the non-complexity of the proceeding. Additionally, the Court found no merit in the argument that requiring Christopher Catania to represent himself was inconsistent with the QCAT Act. Therefore, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although not clearly stated, the grounds of appeal appear to be that:(a)the Tribunal erred in finding as follows:(i) that the applicants made a submission that David Catania ‘lacked mental capacity’;(ii) that the proceeding does not raise complex issues.(b)Requiring Christopher Catania who resides in Victoria to represent himself in the proceedings is antithetical to s 3(b) of the QCAT Act.The Tribunal’s decision The learned Senior Member briefly summarised the parties’ respective submissions about the application for leave for legal representation. The Tribunal then summarised s 43 of the QCAT Act. Section 43 provides:43 REPRESENTATION(1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding, a party— (a)may appear without representation; or (b)may be represented by someone else if— (i)the party is a child or a person with impaired capacity; or (ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or (iii)an enabling Act that is an Act, or the rules, states the person may be represented; or (iv)the party has been given leave by the tribunal to be represented. (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave— (a)the party is a State agency; (b)the proceeding is likely to involve complex questions of fact or law; (c)another party to the proceeding is represented in the proceeding; (d)all of the parties have agreed to the party being represented in the proceeding. … In summarising s 43, the Tribunal noted that in certain circumstances set out in s 43(2)(b), which include when the party has impaired capacity, the party may be represented. Otherwise, the Tribunal has a discretion as to whether to grant leave to a party to be represented. In discussing the parties’ submissions, the Tribunal said that the applicants had submitted that David Catania had impaired capacity, observing that if that was the case, he would be entitled to representation. The learned Senior Member then referred to an apparent inconsistency between the documents filed in support of the application for leave for representation which asserted that David Catania had ‘intellectual and psychiatric disabilities’ and the detailed statements filed in the proceeding by David Catania and by Ms Johanson about David Catania’s actions in relation to the building works in dispute. The learned Senior Member said that in the absence of further explanation, he was not persuaded that David Catania had impaired capacity. The Tribunal considered Christopher Catania’s assertions that distance and considerations of economy meant that he could not attend. It noted that the assertions were not supported by evidence. On that basis, the learned Senior Member found they were not a compelling argument in favour of the granting of leave.

Ratio Decidendi

Legal Principle Established

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