Daniel John Marino v Keith Howe

[2019] QCAT 390

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Daniel John Marino v Keith Howe [2019] QCAT 390

PARTIES:

DANIEL JOHN MARINO

(applicant)

v

KEITH HOWE

(respondent)

APPLICATION NO/S:

NDR093-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where respondent applied for leave to be legally represented – whether proceedings involve complex questions of law or fact – whether appropriate for barrister to represent himself – whether it is in the interests of justice for leave to be granted for legal representation

Legal Profession Act 2007 (Qld), s 227(1).

Neighbourhood Disputes (Dividing Fences and Tress) Act 2011 (Qld), s 64, s 66, s 67, s 70(1), s 73(1).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 42(1), s 43(1), s 43(2)(b)(iv) s 43(3)(b), s 43(3)(d), s 100, s 102(1),

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29.

Legal Practitioners Complaints Committee and Segler [2009] WASAT 91.

McIlraith v Ilkin (Costs) [2007] NSWSC 1052.

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

[1]           Mr Marino and Mr Howe have adjoining properties on the Gold Coast. Mr Marino says that two Norfolk Island pine trees situated on Mr Howe’s land (the trees) have, among other things, caused serious damage to Mr Marino’s property.

[2]           Mr Marino has commenced proceedings in the tribunal. He seeks orders for the removal of the trees. He also seeks an order that Mr Howe pay compensation for damage caused by the trees.

[3]           Mr Howe applied for leave to be legally represented in the proceedings. I refused the application. These are the reasons for my decision.

[4] Parties in tribunal proceedings should represent themselves unless the interests of justice require otherwise. The tribunal may grant leave for a party to be represented. Section 43(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) sets out a number of circumstances that the tribunal may consider as supporting the giving of leave, including that the proceeding is likely to involve complex questions of fact or law and that all of the parties have agreed to the party being represented in the proceeding.

[5]           Mr Howe says a number of things in support of his application for leave to be represented:

(a)  The parties have, by conduct, agreed to legal representation;

(b)  The dispute is one where there are contested issues of fact and issues of law of some complexity;

(c)  Mr Howe is a practising barrister and it will be difficult for him to manage his busy legal practice and conduct the proceedings.

(d)  Mr Howe will be placed in the inappropriate position of having…