Juris Ace Pty Ltd v Nogoa River Flood Plain Board & Ensham Resources Pty Ltd

Case •

[2010] QCAT 56

•

15 February 2010

CITATION:Juris Ace Pty Ltd v Nogoa River Flood Plain Board & Ensham Resources Pty Ltd [2010] QCAT 56

PARTIES:   
Applicant   Juris Ace Pty Ltd

Respondent   Nogoa River Flood Plain Board

And

Ensham Resources Pty Ltd

APPLICATION NUMBER:            GAR 013-10

MATTER TYPE:   General administrative review matters

HEARING DATE:   15 February 2010

HEARD AT:   Brisbane

DECISION OF:   S Booth, senior member

DELIVERED ON:   15 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application for representation dismissed

CATCHWORDS: Section 43 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION:

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

  1. This is an application for leave to be legally represented by Ensham Resources Pty Ltd. (Ensham).

  2. Mr Leslie Fluerty on behalf of Juris Ace Pty Ltd seeks a review of the decision of the Nogoa River Floor Plan Board, Central Highland Regional Council (the Nogoa Board).  The Nogoa Board made a decision to issue a permit to Ensham to extend and upgrade existing levee banks subject to certain conditions.

  3. A joint application has been made by Ensham for legal representation in this matter and a similar matter of Burnett v Nogoa River Flood Plain Board and Ensham Resources Pty Ltd.

ISSUES AND THE LEGISLATION

  1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Appeal Tribunal under the Local Government Act 1993 on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.

  2. 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.

  3. The enabling Act in this case, the Local Government Act 1993 does not contain provisions for a party to be represented in Tribunal proceedings.  The Queensland Civil and Administrative Tribunal Act 2009 contains provisions for a party in the proceeding to be represented only with the leave of the Tribunal.

  4. 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.

  5. 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.

  6. In cases where a party seeks leave to be represented, the Tribunal must be satisfied that the interests of justice require the party to be represented.  In addition, if a corporation seeks to be represented by a person who is not an Australian legal practitioner, the person must provide the Tribunal with a certificate of authority from the corporation and the Tribunal must be satisfied that the person is an appropriate person to represent the party.

  7. Rule 54(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a corporation may appear in a proceeding through an officer of the corporation who is authorised to act for it in the proceeding.  Where a corporation seeks to appear through an Australian legal practitioner, the Tribunal’s leave must be obtained.

SUBMISSIONS

  1. Ensham made submissions in support of the application for leave to be represented under section 43 of the Act. It was submitted that the matter is likely to involve complex questions of fact and law and that it is in the interests of justice that the Tribunal exercise the discretion under section 43(2)(b)(iv) of the Act and grant leave to be legally represented. Further, Ensham asserts that it is the proper contradictor and that legal representation will ensure that legal arguments and evidence will be appropriately put before the tribunal.

  2. Mr Fluerty objects to Ensham’s application for legal representation and asserts that his dispute is with Nogoa Board.  Further that the matter concerns the facts and report that the decision was based on.  In particular, was the decision in the best interests of land holders on the flood plain?

CONCLUSION

  1. As to the factors in section 43(3) of the Act, that is, whether the proceeding involves complex questions of fact or law Mr Fluerty and Ensham do not agree. Mr Fluerty submits that the matter is about whether the Nogoa Board followed the Local laws that govern decision making and whether the decision was in the best interests of land holders. Ensham asserts factual and technical issues under section 12(5) of the Local Law. While Ensham asserts it is the proper contradictor, Mr Fluerty asserts his dispute is with Nogoa Board. The extent and nature of issues of the application are in dispute.

  2. One of the main purposes of a compulsory conference under s69 (a)‑(c) of the QCAT Act is to identify and clarify issues in dispute. Section 69 provides:

    S69 Purposes

    The purposes of a compulsory conference for a proceeding are as follows-

    (a) to identify and clarify the issues in dispute in the proceeding;

    (b) to promote a settlement of the dispute the subject of the proceeding;
    (c) to identify the questions of fact and law to be decided by the tribunal;

  3. The fact that issues are in dispute and the roles of parties unclear, does not necessarily mean that there are complex issues of fact and law.  All parties can assist with identifying and clarifying issues.  This approach is consistent with the purpose of section 69.

  4. There is nothing in the application or in the submissions made by the Ensham to overturn the main purpose of section 43 that the parties represent themselves unless the interests of justice require otherwise. Ensham has not established to the satisfaction of the Tribunal that the compulsory conference will raise complex questions of fact and law such that a legal practitioner would be an appropriate person in terms of section 43(4)(b) of the Act to represent Ensham.

  5. Ensham may choose to obtain legal advice as part of its preparation for the compulsory conference and as part of the formulation of points for discussion at the conference without requiring leave under section 43 of the Act. However the Tribunal is not convinced that the interests of justice require Ensham to be represented at the conference by a legal practitioner.

  6. The application for leave to be represented is dismissed.

  7. Should the matter not be resolved at the compulsory conference, the Tribunal may be prepared to revisit an application for leave to appear at the hearing under section 54 of the QCAT rules.

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