Hall v Queensland Building and Construction Commission - [2023] QCATA 108

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hall v Queensland Building and Construction Commission [2023] QCATA 108

PARTIES:

ANDREW HALL

(applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL264-22

ORIGINATING APPLICATION NO/S:

GAR455-21

MATTER TYPE:

Appeals

DELIVERED ON:

14 August 2023

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

1. The application by the respondent seeking leave for legal representation is granted.

2. The application by the applicant seeking orders against Mr Joshua Henderson is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party – whether it was improper for a party’s legal representative to provide submissions before leave to represent was granted - whether interests of justice require leave to be granted.

Acts Interpretation Act 1954 (Qld) s 14A

Queensland Building and Construction Commission Act 1991 (Qld) ss 5, 93A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 43, 100, 102

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Drane v Taylor (No 2) [2022] QCATA 157
Gold Coast Tree Houses Pty Ltd v Lander [2022] QCATA 178
Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sommers v Bycroft [2020] QCATA 55

Western Australian Planning Commission v Dungey [2010] WASC 52

APPEARANCES & REPRESENTATION:

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

Application for miscellaneous matters filed 7 January 2023 by the Queensland Building and Construction Commission (QBCC) seeking leave for legal representation.

The Queensland Building and Construction Commission (‘QBCC’) is granted leave for legal representation for the following reasons.
Interests of justice
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the position with respect to legal representation before the Tribunal. Section 43(1) provides that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise. Importantly s 43(2) provides that a party may “appear” without representation or may be represented by someone else in certain circumstances, including where leave is given.
Section 43(3) provides a number of discretionary factors to which the Tribunal may have regard when considering whether to give a party leave to be represented in a proceeding. Relevantly, the QBCC is a State agency[1]. That is a factor in support of the grant of leave.
[1]Queensland Building and Construction Commission Act 1991 (Qld) s 5.
Further, the proceeding involves a question of law on which the Appeal Tribunal would be assisted by submissions from a lawyer for the QBCC. The question of law goes to the Tribunal’s jurisdiction to determine a matter concerning the review of an original decision,…

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: [2023] QCATA 108
Decision Date: 14 August 2023

CaseChat Overview and Summary

The case before the court involved the applicant, Hall, and the respondent, the Queensland Building and Construction Commission. The dispute arose from the Commission's decision to terminate Hall's registration as a builder in Queensland, and Hall sought to challenge this decision. The application for leave to seek legal representation was opposed by the Commission, raising questions about the appropriateness of allowing the applicant to be represented by counsel before the leave was granted. The court had to determine whether it was improper for the applicant’s legal representative to provide submissions in the proceedings and whether the interests of justice required granting the leave for legal representation.

The legal issues before the court involved the procedural requirements for legal representation in civil proceedings and the discretion of the court to allow a party to be represented by counsel before leave was formally granted. The court considered whether the procedural irregularity of the applicant’s counsel providing submissions before leave was granted could be rectified by the court's inherent jurisdiction, and if the interests of justice necessitated granting leave to be represented by counsel.

The court found that, although the applicant’s counsel had provided submissions before leave was granted, this procedural irregularity could be rectified under the court's inherent jurisdiction. The court considered the broader interests of justice and determined that allowing the applicant to be legally represented was in the best interest of ensuring a fair and effective hearing. Consequently, the application by the respondent for leave to be legally represented was granted, and the application by the applicant to make orders against Mr Joshua Henderson was refused.

Orders

Orders of the court

1. The application by the respondent seeking leave for legal representation is granted.

2. The application by the applicant seeking orders against Mr Joshua Henderson is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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