Knight v Hansen
[2010] QCAT 106
•19 February 2010
| CITATION: | Knight v Hansen [2010] QCAT 106 |
| PARTIES: | Trevor Graham Knight |
| v | |
| Kerry Hansen |
APPLICATION NUMBER: BD120-09
| MATTER TYPE: | Building matters |
| DECISION ON THE PAPERS OF: | Dr Bridget Cullen Mandikos |
DELIVERED ON: 19 February 2010
DELIVERED AT: Brisbane
ORDERS MADE:
The Applicant’s Application seeking leave to be represented is denied, and the parties are ordered to be self-represented in these proceedings.
Order of the Tribunal dated 25 January 2010 vacated to the extent that it set this matter down for hearing on 9 and 10 March 2010.
The parties are ordered to attend a compulsory conference on 9 March 2010, commencing at 9.30 am.
| CATCHWORDS : | Leave to be represented, s43 of the Queensland Civil and Administrative Tribunal Act 2009. |
REASONS FOR DECISION
On 19 March 2009, the Applicant, Trevor Charles Knight, filed an “Application – Domestic Building Dispute” with the then Commercial and Consumer Tribunal (“CCT”), seeking payment pursuant to section 46 of the Queensland Building Services Authority Act 1991, for building work that he performed as an unregistered builder. The Applicant’s affidavit of service was filed with the then CCT on 26 March 2009.
On 20 April 2009, the Respondent filed her Defence in the then CCT, arguing (amongst other matters) that the Applicant’s work was unsatisfactory, and that the Applicant caused her to enter into a owner/building contractual arrangement, resulting in her having no protection under the Queensland Building Services Authority (“QBSA”) home warranty insurance scheme. The Respondent alleges that the Applicant told her that he had forgotten to renew his licence, and that this arrangement would prevent her having to recommence her search for a builder. Further, the Respondent alleges that the Applicant told her that his carpenter’s license would provide her with insurance protection for the project. The Respondent has counterclaimed, seeking damages for the allegedly faulty work.
The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: section 256 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
On 20 January 2010, the parties were ordered by QCAT to file and serve on the other party an application for leave to be represented, including submissions, by 3 February 2010. On 4 February 2010, the Applicant delivered some very brief submissions, consisting of 6 sentences, via his solicitors. Those submissions assert as follows:
“The matter has several complex legal issues involved. In terms of the prosecution of the matter it would be a simple case that the work was done and the Respondent failed to pay. From the Respondent’s documents it would appear that the issues become more clouded, particularly in terms of whether work was done to a competent standard. Our client is a pensioner with extremely limited legal understanding.
The volume of material that is required to be put before the Tribunal is significant. It would be unjust to require our client to litigate this matter without any legal assistance.”
The Respondent replied by letter dated 8 February 2010, opposing the Applicant’s application for leave to be represented:
“My reasons for opposing, is that I am not able to get legal aid and can not afford representation of my own and feel this makes for an uneven playing field.
I have been put in this position by Mr Knight, miss [sic] representing himself, contracting unlicensed and defective work.
At no time have I done the wrong thing and I feel that Mr Knight having support, will make an intimidating situation, where he is at an advantage.”
The Applicant has not complied with the Tribunal order, in that he has failed to complete the QCAT “Application for leave to be represented” form. In consideration of QCAT’s recent commencement, I am willing to waive this non-compliance, but note that as the Applicant’s submissions were prepared by a firm of solicitors, that there is no compelling reason to waive the non-compliance. In any event, form or no form, the Respondent has advised the Tribunal of her views in response to the Applicant’s submissions.
Section 43 of the QCAT Act provides that the parties are to “represent themselves unless the interests of justice otherwise require.”
I do not share the Applicant’s view that the issues in this matter are legally complex. There are always competing versions of events offered up by the parties, and this case is no different in that respect. The issues raised in this matter come before the Tribunal on a reasonably frequent basis.
The Respondent’s submissions are the more persuasive. She has asserted that the Applicant has misrepresented the nature of his QBSA registration status, and that she was led to enter into a contractual arrangement whereby she abandoned her entitlement to the QBSA home warranty insurance scheme. She has also indicated that she cannot afford legal representation. It is my view that the interests of justice do not favour the Applicant in these circumstances. I further agree with the Respondent that the addition of legal representation to this matrix would create an uneven playing field for the Respondent.
Section 43(3) of the QCAT Act sets out various factors that the Tribunal may consider when deciding whether to allow a party to appear with representation. Relevantly, those factors are:
the proceeding is likely to involve complex questions of fact or law;
another party to the proceeding is represented in the proceeding; and
all of the parties have agreed to the party being represented in the proceeding.
As discussed above, I do not consider that the issues raised by the parties are legally or factually complex. Further, as the Respondent has indicated she is unable to obtain legal representation, she should not be placed at a disadvantage in a jurisdiction where the rebuttable presumption is that parties will not have legal representation.
I do not think that, in the circumstances, the interests of justice warrant my granting leave for the Applicant to be represented, and as such deny the Applicant’s application seeking leave to be represented, and Order that the parties are to be self-represented in these proceedings.
Further, I vacate the Order of the Tribunal dated 25 January 2010 to the extent that it sets this matter down for hearing on 9 and 10 March 2010.
This matter has not yet been through the Tribunal’s compulsory conference process. As the parties will be self-represented, attending a compulsory conference will provide them with an opportunity to clarify the issues in dispute, promote settlement, and identify the questions of fact and law to be decided by the Tribunal, with the assistance of a Tribunal member.
The parties are ordered to attend a compulsory conference on 9 March 2010, commencing at 9.30 am.
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