Goodellis v Queensland Building Services Authority
[2010] QCAT 110
•4 March 2010
CITATION: Goodellis v Queensland Building Services Authority [2010] QCAT 110
PARTIES: Anthony Michael Goodellis
V
Queensland Building Services Authority
APPLICATION NUMBER: QR181-09
MATTER TYPE:
HEARING DATE: 4 March 2010
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 4 March 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for legal representation granted
CATCHWORDS: Section 43 of Queensland Civil and Administrative Tribunal Act 2009
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of parties.
REASONS FOR DECISION
HISTORY OF THE APPLICATION
- An application was made to the Commercial and Consumer Tribunal on 4 August 2009 by Anthony Goodellis (the applicant) seeking to review a decision of the Queensland Building Services Authority (the respondent) to refuse to categorise the applicant as a permitted individual.
- An application has been made to the Tribunal by the respondent seeking leave to be legally represented in the proceedings.
ISSUES AND THE LEGISLATION
- From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.
- Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
- Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides as follows:
(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—
(c) the party is a State agency;
(d) the proceeding is likely to involve complex questions of fact or law;
(e) another party to the proceeding is represented in the proceeding;
(f) all of the parties have agreed to the party being represented in the proceeding.
(4) A party can not be represented in a proceeding by a person—
(a) who, under rules made under section 224(3), is
disqualified from being a representative of a party to a
proceeding; or
(b) who is not an Australian legal practitioner or
government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the
party.
(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—
(a) the party is a corporation; or
(b) the tribunal has asked for the certificate.
(6) The tribunal may appoint a person to represent an unrepresented party.
(7) In this section—
Australian legal practitioner see the Legal Profession Act 2007.
government legal officer see the Legal Profession Act 2007.
- It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right. In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
- Rule 53(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised to act for it in the proceeding. However, rule 53(2) provides that leave from the Tribunal is required if a State agency seeks to appear through an Australian legal practitioner or a government legal officer.
SUBMISSIONS
The respondent relied on the following factors from section 43(3) of the Act as circumstances supporting the giving of leave:
· the respondent is a State agency and
· the proceedings involve some complex issues of fact and law.
It was submitted that being a State agency, the respondent had an obligation to be a model litigant with the prime obligation to assist the Tribunal to arrive at the correct decision, to adduce evidence clearly and concisely, even if such evidence is contrary to the interests of the respondent and to provide procedural assistance to the Tribunal to avoid an information deficit.
10.It was submitted that the Tribunal would benefit from the presence of a legal representative who is familiar with the statutory framework, able to present issues in accordance with that framework and who could provide objective and dispassionate representation.
11.It was submitted that the Tribunal might suffer if the respondent is not legally represented as the decision maker is not versed in any legal training and could not fulfil the obligation to act as a model litigant. It was further submitted that legal representation would ensure consistency between the submissions made by the respondent to the Tribunal on points of law and the respondent’s attitude to those points of law.
12.It was submitted that injustice would not be caused to the applicant if the respondent were to be legally represented as the respondent would not have any special advantage being represented by a legal officer.
13.In late submissions received by the Tribunal on 2 March 2010, the respondent supplemented its earlier submissions. The respondent indicated that it would not apply for costs in the proceedings unless the applicant conducts the matter in a manner which is frivolous, vexatious or an abuse of process.
14.It was submitted that a determination on whether leave for legal representation should be granted to a State Agency under Rule 53 is governed by section 43 of the Act and that the criteria for granting leave for in-house lawyers to appear for the respondent is no different from the criteria for granting leave for the respondent to be legally represented by external lawyers. It was submitted that Rule 53(2) does not give a separate avenue to allow representation to an in-house lawyer as the application for leave must be decided in accordance with section 543 of the Act.
15.Mr Goodellis opposes leave being granted for the respondent to be legally represented by external lawyers. He disputed the submissions of the respondent that the matter involved complex issues of law and submitted that the Tribunal should be able to reach an informed decision without the assistance of an external legal representative.
16.He identified in his submissions what he considers to be the six points for determination in the proceeding and he submitted that it would be a matter of the Tribunal having to be satisfied on the evidence produced about those six points.
17.Mr Goodellis has not sought leave to be represented in the proceedings and asserts that he does not have the financial capacity to do so. He submits that he will be at a distinct disadvantage coming up against a legal representative when simple discussion and analysis is required.
CONCLUSION
18.The respondent in these proceedings is a State agency as defined in the Act. Under the Rules of the Tribunal, the respondent may appear in the proceedings through an employee, officer or member of the agency authorised to act for the respondent. This means that the general manager of the Queensland Building Services Authority is not always required to appear in person in the proceedings and that an authorised employee can appear for the Authority.
19.The respondent has not sought leave to have one of its employed legal officers appear for the respondent in the proceedings but rather seeks leave to be legally represented.
20.The respondent addressed relevant factors found in section 43(3) of the Act. The Tribunal accepts the submissions that as a State agency, the respondent has the obligation to act as a model litigant to assist the Tribunal to arrive at the correct decision. However a State Agency can discharge its obligations to act as a model litigant without necessarily engaging legal representation in proceedings in this Tribunal.
21.The Queensland Building Services Authority has been a litigant in many proceedings over the years involving issues similar to the issues in this matter. The Tribunal is confident that the employees of the Authority, including its employed lawyers, have the ability to assist the Tribunal to arrive at the correct decision and have the ability to discharge the obligations of a model litigant. It would be surprising and disappointing if the Tribunal could not rely on the employees of the Authority to discharge the model litigant obligations.
22.The submissions put forward in support of granting leave for legal representation on the basis that the respondent is a State Agency are not compelling or convincing in this case.
23.The other factor addressed by the respondent’s submissions was the presence in the proceeding of complex questions of law and fact.
24.Both parties have identified a range of issues that they consider will be the focus of the Tribunal when reaching a determination in the proceeding. Both the legal and factual issues identified by the parties appear to the Tribunal to be complex in nature, involve analysis of financial dealings, require consideration of the legal implications of those dealings and the impact they have on the appropriateness of Mr Goodellis being empowered to carry out activities within the building industry and with the public.
25.The Tribunal has noted that the respondent will not apply for a costs order against Mr Goodellis in the event that the review is unsuccessful unless Mr Goodellis conducts his case in a manner that is found to be frivolous, vexatious or an abuse of process. In view of that position, there would be no disadvantage resulting to Mr Goodellis should leave be granted for the respondent to be legally represented. The Tribunal notes that the Authority is aware of its obligations as a model litigant and is confident that the Authority will not take any unfair advantage of Mr Goodellis as a non represented litigant in the proceedings.
- The Tribunal is satisfied that after considering the circumstances supporting the granting of leave specified in section 43(3) of the Act and given the findings made in paragraph 24 of these reasons, it is in the interests of justice for the respondent to be granted leave to be legally represented in this proceeding.
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