Jones v Queensland Building Services Authority

[2010] QCAT 161

CITATION: Jones v Queensland Building Services Authority [2010] QCAT 161

PARTIES:   Dr Sandra Fay Jones

v

Queensland Building Services Authority

APPLICATION NUMBER:            QR261-09     

MATTER TYPE:   General administrative review matters

HEARING DATE:   25 March 2010

HEARD AT:   Brisbane

DECISION OF:   Mr J Allen

DELIVERED ON:   25 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   

1. Application for leave to represented refused to the Queensland Building Services Authority.

1. Application for leave to be represented by Dr Anthony Franklin granted to Dr Sandra Fay Jones

1. The Queensland Building Services Authority is granted leave to appear through an Australian legal practitioner or a government legal officer.

CATCHWORDS: Legal representation section 43 Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the former Commercial and Consumer Tribunal by Dr Jones on 14 October 2009 for the review of a decision made by the Queensland Building Services Authority on 7 September 2009 not to issue a direction to rectify in respect of defective building work the subject of a complaint made to the Queensland Building Services Authority dated 27 July 2009.

1. Following the making of the application the Queensland Building Services Authority issued a direction to the builder to rectify defective building work on 28 October 2009 in respect of the compliant made by Dr Jones.

1. The Queensland Building Services Authority made a further decision on 7 December 2009 as a result of the builder not complying with the direction to rectify dated 28 October 2009. That decision denied liability under the BSA Insurance scheme in respect of the defective building work.

1. The Tribunal received an application on 28 January 2010 from Dr Jones for her husband, Dr Anthony Allan Franklin to act as her representative in respect of this matter. The Queensland Building Services Authority has advised that they have no objection to Dr Jones being represented by Dr Franklin.

1. The Tribunal received an application on 4 February 2010 for the Queensland Building Services Authority to be represented by Mr Paul Gordon, a partner of the firm of HWL Ebsworths lawyers.

1. The tribunal received an application from Dr Jones on 5 March 2010 to amend the decision under review to be the decision of the Queensland Building Services Authority of the 7 December 2010. This application to amend was made by leave of the tribunal granted by order of Wilson, J on 3 February 2010.

THE LEGISLATION

1. The representation of parties in proceedings before the Tribunal is determined in accordance with section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) which 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—

(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.

(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.

1. As the respondent is a State agency, rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009 is also applicable. It provides as follows:

(1)  A State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding.

(2)  However, the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunal’s leave.

1. Where as her the application is one for review the decision-maker to act in accordance with section 21 of the Act as follows:

   (10 in a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review.

SUBMISSIONS

1. Dr Jones in her application for legal representation stated that “the QBSA (respondent) has its own legal team to represent itself so applicant feels intimidated by not having representation.”

1. The Queensland Building Services Authority in its submissions in support of its application raised the matters set out in paragraphs 43(3) (a) and (b) of the Act. That is that the Respondent is a State agency and the proceeding will be legally complex. The respondent relied on the decision in Brown & Brophy v Queensland Building Services Authority [2005] QCCCTB 110 and the decision in Sierocki v QBSA [2010] QR215-09 in regard to the requirement of the respondent acting  as model litigant and the undesirable nature of the decision maker representing the respondent. It was submitted that as the respondent has an obligation to act as a model litigant and to assist the tribunal any perceived advantage would be nullified.

1. In regard to the complex legal issues there were two mentioned in the Queensland Building Services Authority submission. The first was the interpretation of the term “primary building work” in clause 9.1 of the relevant terms and conditions of the policy (for the statutory insurance scheme) and section 11 of the Queensland Building Services Authority Regulation 2003. The second was that there were two decisions under review. The first, not to issue the direction to rectify and the second being the decision to reject the claim under the statutory insurance scheme. There was an issue raised that this would involve two decision makers and so two advocates would be representing the Respondent.

1. Dr Jones in her submissions in reply relevantly stated that “there are no complex questions of fact or law. This is a simple case but it is being represented by the QBSA as complex because QBSA inspectors, Peter Lack and Bob Clayton, have made it clear that neither understands, nor wishes to understand, the meaning of certain parts of its own legislation.” She further stated that “to allow the QBSA a lawyer would force me to have one also and spend thousands of dollars to argue about an issue the QBSA feels so strongly about.” Dr Jones was of the view that she would be happy for a variety of QBSA officers including the General Manager to attend the next stage of the proceeding. Dr Jones asked that if the matter extended beyond 3 March (it is assumed Dr Jones meant 30 March, which is the date for a compulsory conference in the matter) that she be allowed her husband, Tony Franklin to act as her agent.

CONCLUSION

1. The purpose of section 43 is to ensure that parties are not represented unless the interests of justice require otherwise. Grounds for the granting of leave to be represented include that the party is a state agency and that the proceeding is likely to involve complex questions of fact or law. The respondent is a State agency and the matter is a review and so the Respondent is required to use its best endeavours to assist the tribunal. The Respondent submits that to do this legal representation is required as it is undesirable to have the decision-maker undertake this role. That is of not only defending the decision but ensuring that all information and evidence whether favourable or unfavourable is put before the tribunal. It is clear from Dr Jones’s submissions that she agrees that the decision-makers in this case do not understand the legislation involved. Therefore if the respondent is carry out its role as required under the Act then it should be able to do so through legally qualified persons.

1. The Respondent also submitted that the matters before the tribunal were legally complicated. In regard to the second issue this has been disposed of by Dr Jones’s request to have her application amended so that it will only be in regard to the decision of the Queensland Building Services Authority dated 7 December 2009. The first issue is the interpretation of the term “primary building work”. The respondent has submitted that it requires external legal representation to be able to provide the fulsome and considered submissions from a legal practitioner. The Tribunal notes that in the case of Brown & Brophy v Queensland Building Services Authority the Commercial and Consumer tribunal was careful to limit the granting of leave to represent to the respondent’s in-house lawyers. In that case the tribunal found the matter involves legal and factual issues of some complexity.

1. Dr Jones stated that if the respondent was granted leave to be represented than she would be forced to seek legal representation herself. This of course is something that the tribunal seeks to avoid having regard to the objects of the Act set out in section 3 which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal though is mindful of Dr Jones’s own submissions that the decision-makers do not understand the legislation.

1. An alternative to the granting of the respondents application for legal representation is to grant leave for the Respondent to appear through one of its employed Australian legal practitioners or government legal officer under rule 53. This would ensure that a legally trained person presented the respondents case and assist it to undertake its role as model litigant in terms of providing the tribunal with the legal submissions required to enable the tribunal to make the correct and preferable decision. The decision-maker would then be in the position of a witness in the proceeding.

1. The tribunal is not satisfied that it is in the interests of justice for the respondents to be granted legal representation in this case. The matters before the tribunal are not sufficiently complex to require external legal representation. The issue is the interpretation of a part of the relevant Act and its associated insurance policy and the respondents can undertake its role as model litigant through the grant of leave to appear by one of its in-house legal staff. The tribunal refuses leave for the Queensland Building Services Authority to be represented. The Tribunal grants leave under Rule 53 for the Queensland building Services Authority to appear through an Australian Legal Practitioner or a Government Legal 0ffcier.

1. In regard to Dr Jones’s application to be represented the tribunal notes that the respondent has not objected to her application. While the Queensland Building Services Authority has not been granted legal representation it will be able to appear through a lawyer. The tribunal is therefore satisfied that it is interests of justice to grant Dr Jones’s application for Dr Anthony Franklin to represent her in the proceeding.