Hopper v Queensland Building and Construction Commission

[2018] QCAT 151

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hopper & Anor v Queensland Building and Construction Commission & Anor [2018] QCAT 151

PARTIES:

JULIE HOPPER

(first applicant)

NEIL HOPPER
(second applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

SUCCESS HOMES PTY LTD

(second respondent)

APPLICATION NO/S:

OCR053-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application for miscellaneous matters filed on 23 March 2018 is dismissed.

2.   The application for leave to be represented filed on 20 April 2018 is dismissed.

3.   The parties have leave to be legally represented in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where party previously joined

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave previously granted – where party attending a funeral

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43

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) (QCAT Act).

REASONS FOR DECISION

1. There are three interlocutory applications before me for determination. I will deal with each in turn.

   Application for miscellaneous matters filed on 23 March 2018

2. Mr and Mrs Hopper lodged an application to ‘dismiss the application of QBCC to join Widebay Building Services / Success Homes in the proceedings’.

3. The Tribunal ordered on 16 February 2018 that ‘Success Homes Pty Ltd is joined as party to the proceeding’.  Accordingly, the joinder of Success Homes Pty Ltd is matter that has already been determined. 

4. Should Mr and Mrs Hopper wish to appeal the Tribunal’s decision, they must file a Form 39 application for leave to appeal and pay the prescribed fee. Given that more than 28 days have elapsed since the Tribunal’s decision was made, Mr and Mrs Hopper would also need to file an application to extend time.

5. Accordingly, the application for miscellaneous matters filed on 23 March 2018 is dismissed.

   Application for leave to be represented filed on 10 April 2018

6. The Queensland Building and Construction Commission (‘QBCC’) lodged an application for leave to be legally represented.

7. The Tribunal directed on 20 November 2017 that ‘[t]he parties have leave to be legally represented in the proceeding’. Accordingly, the QBCC already has leave to be legally represented.

8. I note that no objection has been raised to the QBCC being legally represented. To avoid any uncertainly, I order make a further order in terms of the direction made on 20 November 2017.

   Application for leave to be represented filed on 20 April 2018

9. Success Homes Pty Ltd lodged an application for leave to be represented by Mr Paul Ward. 

10. The grounds for the application were stated as follows:

    My name is Theresa Ward and I was the owner of Success Homes. Success Homes is no longer active and unfortunately I cannot attend this hearing as I now have a funeral on Wednesday therefore can’t get any more time off work.  The company is closed and cannot afford legal representation.

    As Mr and Mrs Hopper’s comments were directed at my husband Paul Ward, I would like him to be telephone during this matter please.

11. By letter dated 1 May 2018, the QBCC advised that it did not object to this application.

12. However, by letter dated 2 May 2018, Mr and Mrs Hopper did object. Their ground was that Mr Ward is a ‘banned for life individual since 2007 and not allowed to act as an influential person as per QBCC policy’.

13. Pursuant to s 43(2)(b)(iv) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Success Homes Pty Ltd can only be represented by Mr Ward with the leave of the Tribunal. The factors to be considered in whether leave should be granted are set out in s 43(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.

14. As Mr Ward is not an Australian legal practitioner or government legal officer, I am also required to be satisfied that he is an ‘appropriate person’ to represent Success Homes Pty Ltd pursuant to s 43(4)(b).

15. I am not satisfied that attendance at a funeral on a date which has now passed is a sufficient basis for granting leave for a party to be represented in a proceeding. It also appears that Mr Ward may potentially be called as a witness for Success Homes Pty Ltd, and it is generally not appropriate for a party’s representative to also be a witness in the proceeding.

16. Accordingly, the application for leave to be represented filed on 20 April 2018 is dismissed.