Josephine Rosalie Coppens v Water Wise Design Pty Ltd

[2011] QCAT 273

CITATION: Josephine Rosalie Coppens v Water Wise Design Pty Ltd [2011] QCAT 273

PARTIES:	Ms Josephine Rosalie Coppens
v
Water Wise Design Pty Ltd

APPLICATION NUMBER:   BDL375-10

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Anne Forbes, Member

DELIVERED ON: 9 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The application of the Respondent Water Wise Design Pty Ltd for leave to be legally represented is dismissed.

CATCHWORDS: 

Domestic building dispute – Respondent seeking leave for legal representation – application opposed – application refused

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 29, 43

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Nil
RESPONDENT:	Nil

REASONS FOR DECISION

1. This is an application by the Respondent Water Wise Design Pty Ltd (“Water Wise”) for leave to be legally represented.[1]  The application is opposed.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(iv).

   [2]        Letter Josephine Coppens to Registrar 19 May 2011.

1. To those accustomed to the traditional right to counsel section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) may seem irksome, but the “main purpose” of the provision is “to have parties represent themselves unless the interests of justice require otherwise”.  The threshold prohibition is subject to exceptions, but not so many, or so often, that the rule itself becomes an exception, let alone a dead letter.

1. Sub-section 43(3) contains a non-exhaustive list of discretionary[3] considerations that may warrant a decision to grant leave.  The one most often invoked – and it is raised here – is that the proceeding is likely to involve complex questions of fact and law.[4]  The Respondent also submits: (1) that the Applicant is likely to be legally represented, (2) that legal representation would expedite the proceedings, (3) that the damages claimed are “very high”, and (4) that the proceedings could damage the Respondent’s personal and professional reputation.

   [3]          State of Queensland and Green v Leadbeatter [2011] QCATA 60 at [15].

   [4] Section 43(3)(b).

1. Point (1) may be disposed of shortly; the Applicant states that “it is most likely that I will be running my own hearing”, and in fact she has not applied for legal representation.  If the present application is refused, any similar application by the Applicant would then be closely scrutinised.

1. The Respondent submits that the Applicant has had legal assistance in preparing some of her documents. However, it is quite evident from the record that the Respondent has been similarly assisted. There is nothing in s 43, or elsewhere in the Act to prevent or to discourage such extra-curial support.[5]

   [5]Pout v Canterbury Meats Pty Ltd, Kirkegaard and Stewart [2010] QCAT 610 at [14]; Smith v Condie (t/a Listonia Landscaping) [2010] QCAT 256 at [17].

1. Efficiencies arising from legal representation are reduced when only one party is represented.  Absence of representation reduces costs for the parties and minimises the possibility of an application for costs against the unsuccessful party.[6]

   [6]        Botha v State of Queensland and Anor [2010] QCAT 382 at [18].

1. In this Tribunal a claim for about $86,000 in a building dispute is not aptly described as “very high”.[7]  The size of a claim does not per se increase the complexity of law or relevant facts.  It is true that “height” is relative to a respondent’s resources, but the onus of substantiating the claim is upon the Applicant, and frivolous or vexatious inflation of a claim, if shown, may have consequences in costs.

   [7]        Cf Hilliard v Simonds Homes Pty Ltd [2010] QCAT 396 at [3a].

1. If a broad suggestion of potential damage to personal or commercial reputation were regarded as a cogent reason for allowing representation, little might be left of section 43(1). Many, if not most monetary claims in this Tribunal involve commercial enterprises. In the ordinary course of business, traders suffer judgments from time to time without wider or lasting financial or personal consequences. I do not overlook the fact that the Applicant alleges “false and misleading information so as to `Divert the Course of Justice’” [sic], but imputations of that kind tend to increase the burden of proof upon those who make them, and if not sustained, may rebound upon the accuser.

1. The Respondent points out that there may be issues about the interpretation or application of various standards and regulations.  Presumably the Respondent will call an expert witness or witnesses, and it is a common experience of courts and tribunals that appropriate experts are often more at home with such material than legal practitioners.  The Applicant states that she has “no witnesses to present to [her] case to date”.[8]

   [8]Applicant’s submissions 28 April 2011 page 2, in response to paragraph 3.8 of the Responent’s submissions filed 14 April 2011.

[10] All in all, I am unable to accept that this dispute about the adequacy of an on-site sewerage facility threatens such complexity, or such danger to the personal or commercial repute of the Respondent, that section 43(1) should be suspended. This Tribunal deals with matters involving review of administrative decisions, building disputes, body corporate disputes, consumer and trader disputes and other matters involving complex questions of law and large amounts of money. Yet the point of departure in all such cases is the expectation that the parties represent themselves.[9] Sections 28 and 29 of the Act are designed to ensure that that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of issues in the case.[10]  Interlocutory proceedings can be, and commonly are, conducted by telephone.

[9]Pout v Canterbury Meats Pty Ltd, Kirkegaard and Stewart [2010] QCAT 610 at [13] per Endicott Senior Member.

[10]        Lida Build Pty Ltd v Miller [2010] QCATA 17 at [6].

[11] The Applicant does not seek legal representation before the Tribunal, and resists the Respondent’s proposal to appear by counsel or solicitor.  I am not satisfied that a unilateral order should be made.  The application is refused.

Order:

[12] The application of the Respondent Water Wise Design Pty Ltd for leave to be legally represented is dismissed.