Douglass v Hastie Building Group Pty Ltd

[2010] QCAT 353

CITATION: Douglass v Hastie Building Group Pty Ltd [2010] QCAT 353

PARTIES:	Mr John Gavin Douglass
v
Hastie Building Group Pty Ltd

APPLICATION NUMBER:   BDL115-10

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 30 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The parties have leave to be legally represented up to, and including, the compulsory conference on 17 September 2010

CATCHWORDS :  Legal representation – where parties appeared represented at compulsory conference without leave – where application for leave filed – whether complex questions of law and fact – whether interests of justice require representation – whether costs of legal representation affect interests of justice – Sections 43 and 100 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. At a compulsory conference on 19 July 2010 both parties appeared with their legal advisers. Neither had the tribunal’s leave for legal representation. They were ordered to file and serve any application for leave for legal representation by 26 July 2010.

2. Mr Douglass did not file an application for leave. His representatives did send a letter to the applicant’s lawyers in these terms “We are instructed to consent to your client’s request for legal representation provided the same courtesy is afforded to our client”. The fact of another party’s representation, and the parties’ agreement, are factors that the tribunal can take into consideration when deciding whether to grant leave. However, it gives the tribunal no confidence that legal representation will be of any assistance to the conduct of the proceedings if a legal representative cannot be bothered to file an application and address the matters raised in section 43 of the Queensland Civil and Administrative Tribunal Act (QCAT Act).

3. Hastie Pty Ltd did file and serve an application. The application included submissions that addressed the matters in section 43. Hastie Pty Ltd submitted that there are complex questions of law and evidence:

a)whether the proceedings are barred by the passing of time;

b)whether the damages claimed are, in fact, damages;

c)whether the damages claimed are too remote;

d)whether the tribunal has jurisdiction;

e)the allegations of negligence; and

f)whether the evidence, as it currently stands, is capable of supporting the claim.

1. While I am not convinced that, ultimately, the determination of the proceedings will involve such complexity, or even that the issues identified by Hastie Pty Ltd are, in fact, complex, I am content that these will be live issues at the next compulsory conference and that the involvement of legal representation may assist in the efficient resolution of the proceedings.

2. Section 100 of the QCAT Act provides that, other than as provided under this Act or an enabling Act, each party must bear their own costs. It is not in the interests of justice [section 43(1) of the QCAT Act] to have an order for compensation negated by the costs of obtaining that compensation. It is an emerging principle of modern jurisprudence that the effort required to achieve a result must be proportional to the result.[1]

   [1] Lord Justice Jackson Civil Litigation Costs Review – Final Report (December 2009) p32

3. The tribunal also has an obligation to ensure that the conduct of proceedings observes the principles of natural justice [section 28(3) of the QCAT Act]. Any resource imbalance between the parties will be a factor in the tribunal’s consideration of whether the conduct of the proceedings does comply with the principles of natural justice.

4. Neither party has made any submissions about the impact of costs in these proceedings. It is a significant and important issue, given that the monetary relief claimed is modest. I would not be inclined to grant leave for legal representation for the balance of the proceedings unless the parties address the tribunal on the issue of costs. If the dispute proceeds beyond 17 September 2010, both parties will need to make a fresh application for leave to be legally represented.

5. I order that the parties have leave to be legally represented up to, and including, the compulsory conference on 17 September 2010.